University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2014 White Like Me: The egN ative Impact of the Diversity Rationale on White Identity Formation Osamudia R. James University of Miami, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Education Law Commons, Law and Race Commons, and the Law and Society Commons Recommended Citation Osamudia R. James, White Like Me: The Negative Impact of the Diversity Rationale on White Identity Formation, 89 N.Y.U. L. Rev. 425 (2014). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. NEW YORK UNIVERSITY LAW REVIEW VOLUME 89 MAY 2014 NUMBER 2 ARTICLES WHITE LIKE ME: THE NEGATIVE IMPACT OF THE DIVERSITY RATIONALE ON WHITE IDENTITY FORMATION OSAMUDIA R. JAMES* In several cases addressing the constitutionality of affirmative action admissions policies, the Supreme Court has recognized a compelling state interest in schools with diverse student populations. According to the Court and affirmative action proponents, the pursuit of diversity does not only benefit minority students who gain expanded access to elite institutions through affirmative action. Rather, diver- sity also benefits white students who grow through encounters with minority stu- dents, it contributes to social and intellectual life on campus, and it serves society at large by aiding the development of citizens equipped for employment and citizen- ship in an increasingly diverse country. Recent scholarshiphas nevertheless thoughtfully examined the negative effect of the "diversity rationale"-thedefense of affirmative action policies based on a compel- ling interest in diversity-on minority identity when that identity is traded on by majority-white institutions seeking to maximize the social and economic benefits that diversity brings. By contrast, little has been said about whether and how the diversity rationale impacts white identity. Considerationof how the diversity ratio- nale influences white identity formation is particularly timely in light of the * Copyright C 2014 by Osamudia R. James, Associate Professor of Law, University of Miami School of Law. A special thank you is extended to William Araiza, Charlton Copeland, Patrick Gudridge, William Kidder, Nancy Leong, Lisa Pruitt, and Angela Onwuachi-Willig for providing detailed and insightful feedback on the thoughts and ideas expressed in this Article. I also want to thank faculty members at the University of Arizona's James E. Rogers College of Law for thoughtful feedback. Thank you also to Stacey Kesten, Catherine Laughlin, and Michael Levine for excellent research assistance on particularly short notice. My gratitude is also extended to the editors at the New York University Law Review, especially Ariel Werner, who made thoughtful and detailed sug- gestions throughout the editing process. Finally, thank you to my partner, Kamal James, and my mother, Michelle Isidore Guobadia, who have never failed to support me in all my endeavors, personal or professional. 425 Imaged with Permission of N.Y.U. Law Review 426 NEW YORK UNIVERSITY LAW REVIEW [Vol. 89:425 Supreme Court's most recent pronouncement on affirmative action in Fisher v. University of Texas at Austin. This Article begins to fill that gap, ultimately concluding that the diversity rationale reaffirms notions of racial superiority among Whites. Unlike the jurisprudence of seminal civil rights cases, such as Brown v. Board of Education, that rejected old narrativesabout the legitimacy of subordinatingBlacks, the diversity rationaledoes not promote progressive thinking about race and identity. Rather, it perpetuatesan old story-a story about using black and brown bodiesfor white purposes on white terms, a story about the expendability of those bodies once they are no longer needed. Moreover, by reinforcing the "transparency" and "innocence" of white racialidentity, as well as by emphasizing hyperindividualism,the diversity rationale stunts the development of antiracist white identity. By cultivating white identities grounded in a sense of entitlement and victimhood relative to people of color, the diversity rationale,ironically, perpetuates the subor- dination of people of color by prompting the elimination of affirmative action pro- grams. It also distracts Whites from addressing the ways in which their own presence at elite institutions of higher education is genuinely undermined, especially in the case of working-class Whites who are consistently underrepresentedat such institutions. Given this reality, institutions of higher education committed to diver- sity must account for the diversity rationale'seffect on Whites through more honest and substantive explanations of the value placed on diversity in admissions. INTRODUCTION ................................................. 427 I. THE DIVERSITY RATIONALE ............................ 434 A. The Court's Diversity Jurisprudence:Plaintiffs and Problems ................................. 434 B. The Importance of Diversity........... ........ 446 C. Critiques of the Diversity Rationale ...............450 II. THE IMPACT OF THE DIVERSITY RATIONALE ON WHITE IDENTITY ............................................... 453 A. How Law Shapes Identity .. .................... 454 B. Racial Identity Formation ..................... 461 C. The Diversity Rationale and White Racial Identity Formation ................................ 465 1. The Problem with Transparency:White Identity as No Identity.......... ................ 470 2. The Problem with Innocent White Identity ...... 481 3. The Problem with Individualism ...... ....... 489 4. Return of the Subordination Narrative .......... 492 D. The Diversity Rationale and White Citizenship ...... 496 E. From Diversity to the End of Racial Identity ........ 498 III. REMEDIATING THE DIVERSITY RATIONALE............. 505 CONCLUSION ................................................... 512 Imaged with Permission of N.Y.U. Law Review May 2014] WHITE LIKE ME 427 INTRODUCTION In an interview about her decision to challenge the University of Texas's (UT) consideration of applicant diversity in its admissions pro- cess, Abigail Fisher explained that she was "devastated" by her own rejection from the institution': "I had dreamt of going to UT since the second grade." 2 Although the university insisted that Fisher's applica- tion would not have merited admission even if the University did not consider race among some of its applications,3 Fisher was certain that the sole attribute distinguishing her from her peers of color who were accepted was their skin.4 Reflecting on the potential outcome of her case, Fisher said she "hop[ed] that [the Supreme Court would] take race out of the issue in terms of admissions and that everyone will be able to get into any school that they want no matter what race they are but solely based on their merit and if they work hard for it."5 Fisher insisted that she was cheated out of a seat. She felt that she had done all the work she considered necessary to gain admission to UT.6 She seemed certain that, unlike the minority student she assumed had taken her place, she genuinely deserved admission, not having benefited from any unearned advantage or privilege in her own life. She seemed never to have considered that her skin color likely ensured a childhood filled with positive representations of people of her own race, a benefit that has been shown to aid children's psychological and emotional development;7 that subjective assess- ments made of her intellectual or emotional capacities in school were 1 Adam Liptak, Race and College Admissions, Facing a New Test by Justices, N.Y. TIMES, Oct. 9, 2012, at Al. 2 Mike Tolson, Supreme Court to Take Up UT Admission Case, Hous. CHRON. (Oct. 7, 2012), http://www.chron.com/news/houston-texas/article/Supreme-Court-to-take-up-UT- admission-case-3927014.php; see also infra notes 86-105 and accompanying text (discussing Fisher's suit against UT). 3 See infra notes 47-48, 91-95 and accompanying text (describing UT's admissions process, its consideration of diversity, and Fisher's application). 4 See Tolson, supra note 2 (quoting Fisher as stating that "[t]he only difference between" Fisher and high school classmates who had been admitted to UT with "less pol- ished" rdsumds "was the color of our skin"). 5 Liptak, supra note 1. 6 Tolson, supra note 2. 7 See Peggy McIntosh, White Privilege and Male Privilege: A Personal Account of Coming to See Correspondences Through Work in Women's Studies, in CRTTICAL WHITE STUDms: LOOKING BEHIND THE MIRROR 291, 293-94, 298 (Richard Delgado & Jean Stefancic eds., 1997) (including in a list of the daily effects of white privilege: "When I am told about our national heritage or about 'civilization,' I am shown that people of my color made it what it is"; "I can be sure that my children will be given curricular materials that testify to the existence of their race"; "I can easily find academic courses and institutions which give attention only to people of my race"; "My children are given texts and classes which implicitly support our kind of family unit"). Imaged with Permission of N.Y.U. Law Review 428 NEW YORK UNIVERSITY LAW REVIEW