Racial Justice in the Age of Diversity
R acial Justice in the Age of Diversity
Goodwin Liu 0
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Racial Justice in the Age of Diversity
It is a special honor to be here with Owen Fiss, my first-year small group
professor at Yale Law School. Among the many giants of the legal academy at
Yale, it is fair to say that none more powerfully motivated me to probe the law?s
relationship to justice.
A defining experience of my legal education was having Professor Fiss as
my teacher for civil procedure or, as he would call it, just ?procedure.? From
him, I learned several things about pedagogy.
The first is the importance of wait time. When a professor poses a question
to a class, it is not uncommon to get silence in return. In that situation, the
professor feels the urge to speak again, to offer a clue or restate the question.
Professor Fiss never did that; he would wait, and wait, and wait, until someone
raised a hand. He understood that silence is uncomfortable and is therefore a
source of tension, which causes students to think and to take responsibility for
their own learning. Then, after a student would answer a question, Professor Fiss
often would not respond. He would let the student?s answer sit, with more
silence, thereby letting us know it was our job to evaluate what our classmate
had said and not to expect him to spoon-feed us the answers.
Another thing I learned from Professor Fiss is that less is more. As teachers,
we often feel there?s not enough time in a semester to cover all the topics we
want, and we squeeze as much as we can into the syllabus. Imagine learning
virtually all of civil procedure through just five questions: (1) Did the state of
California unconstitutionally execute Robert Alton Harris?1 (2) What process
should John Kelly have received from Jack Goldberg, the New York City
Commissioner of Social Services, before his welfare benefits were terminated?2
) Who had standing to object to the state of Utah?s execution of Gary Gilmore
Copyright ? 2018 California Law Review, Inc. California Law Review, Inc. (CLR) is a
California nonprofit corporation. CLR and the authors are solely responsible for the content of their
* Associate Justice, Supreme Court of California.
1. Professor Fiss asked us to interrogate, among other things, the legal basis of the Supreme
Court?s terse order on the eve of Harris?s execution prohibiting any federal court, except the Supreme
Court itself, from issuing any further stay of execution. See Vasquez v. Harris, 503 U.S. 1000 (1992).
2. See Goldberg v. Kelly, 397 U.S. 254 (1970).
after Gilmore waived his appeals?3 (
) What kind of notice did the Central
Hanover Bank have to give to beneficiaries of a common trust before obtaining
a judicial settlement of its accounts?4 And (
) in the Coney Island school
desegregation case, what persons or entities other than the school district did
U.S. District Judge Jack Weinstein have authority to join as necessary parties to
a remedial order?5 Those five questions (two of which had nothing to do with
civil procedure) are what I learned in law school about civil procedure, which
made the bar exam challenging. But through those questions, Professor Fiss
taught us what we needed to know to understand legal rules and doctrines, while
always asking how the law can better approximate justice.
And so it is with Professor Fiss?s article here, which addresses how the law
can help purge the vestiges of slavery and segregation, and bring the
Constitution?s promise of equal citizenship closer to a living truth. As Professor
Fiss explains, there was a time when the law was animated by the theory of
cumulative responsibility, but that theory no longer has constitutional stature.
Washington v. Davis held that the gravamen of an equal protection violation is a
public entity?s ?racially discriminatory purpose? and not its mere passivity in
perpetuating the effects of intentional discrimination by others.6 The rule was
stated most starkly in McCleskey v. Kemp, where the Court said:
??[D]iscriminatory purpose? . . . implies more than intent as volition or intent as
awareness of consequences. It implies that the decisionmaker . . . selected or
reaffirmed a particular course of action at least in part ?because of,? not merely
?in spite of,? its adverse effects upon an identifiable group.?7
There is no question that Davis disabled constitutional law from being a
potent force in remedying the systematic subjugation of black Americans. But to
some extent, the Court?s rejection of an effects-based antisubordination principle
in favor of an intent-based antidiscrimination principle can be understood as
judicial restraint. The Court worried that a constitutional disparate impact rule
?would be far reaching and would raise serious questions about, and perhaps
invalidate, a whole range of tax, welfare, public service, regulatory, and licensing
statutes that may be more burdensome to the poor and to the average black than
to the more affluent white.?8 The Court echoed this concern in McCleskey,
stating that if unexplained racial disparities were sufficient to trigger judicial
scrutiny under the Equal Protection Clause, it would undermine sentencing
6. Washington v. Davis, 426 U.S. 229, 239 (1976).
7. McCleskey v. Kemp, 481 U.S. 279, 298 (1987) (quoting Pers. Admin. of Mass. v. Feeney,
422 U.S. 256, 279 (1979)).
8. Davis, 426 U.S. at 248.
discretion and ?throw into serious question the principles that underlie our
entire criminal justice system?9?to which Justice Brennan famously replied,
?Taken on its face, such a statement seems to suggest a fear of too much
Thus, McCleskey and Davis can be read as cases that reject the theory of
cumulative responsibility because of institutional concerns about judicial
restraint, workable standards, and legislative and sentencing discretion. But
neither case offers much explanation of why, as a matter of substantive principle,
the theory of cumulative responsibility is not a proper entailment of the
Fourteenth Amendment understood in light of its original purpose and our
Nation?s racial history.
The Court?s pivot away from an antisubordination theory of equal
protection is more deeply theorized by a judicial opinion briefly mentioned by
Professor Fiss but worth closer attention?namely, Justice Powell?s opinion in
Regents of the University of California v. Bakke and, in particular, his
examination of ?our Nation?s constitutional and demographic history.?11
The issue of affirmative action, as it came to the Court in Bakke in 1978,
implicated the same sociological premises that animated the Court in Griggs v.
Duke Power Co.12 Applicants to the University of California, Davis Medical
School in 1973 and 1974, the years Allan Bakke applied, were in all likelihood
born before Brown v. Board of Education.13 Given the lack of enforcement and
outright defiance of Brown throughout the 1950s and into the 1960s, one can
infer that many black and Hispanic students who applied to medical school in
the early 1970s had been afforded inferior educational opportunities earlier in
their lives. The University of California made precisely this point, arguing in its
opening brief that ?[m]inority students entering medical schools in the 1970?s
are from the generation of minority students who have seen the hope but not the
promise of Brown.?14 In that context, the consideration of race in university
admissions seemed readily justified by the theory of cumulative responsibility.
Why, then, did Justice Powell reject this approach in Bakke? In explaining
why racial and ethnic distinctions are inherently suspect, Justice Powell began
by citing the Court?s observation in the Slaughter-House Cases that the ?one
pervading purpose? of the Fourteenth Amendment was ?the freedom of the slave
race, the security and firm establishment of that freedom, and the protection of
the newly-made freeman and citizen from the oppressions of those who had
9. McCleskey, 481 U.S. at 314.
10. Id. at 339 (Brennan, J., dissenting).
11. 438 U.S. 265, 291 (1978) (opinion of Powell, J.).
12. 401 U.S. 424 (1971).
13. 347 U.S. 483 (1954).
14. Brief for Petitioner at 17, Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1977) (No.
76-811), 1977 WL 187977; see also Brief for the United States as Amicus Curiae at 42?43, Regents of
the Univ. of Cal. v. Bakke, 438 U.S. 265 (1977) (No. 76-811), 1977 WL 189477 (making similar point).
formerly exercised unlimited dominion over him.?15 Justice Powell then
acknowledged that despite this purpose, ?the Equal Protection Clause . . . was
?[v]irtually strangled in infancy by post-civil-war judicial reactionism.??16 Only
after the demise of substantive due process and the foundation laid by United
States v. Carolene Products Co. did the Equal Protection Clause come to life.17
?By that time,? Justice Powell said, ?it was no longer possible to peg the
guarantees of the Fourteenth Amendment to the struggle for equality of one
Justice Powell then made his crucial sociological move. ?During the
dormancy of the Equal Protection Clause, the United States had become a Nation
of minorities,? he wrote, citing the massive influx of immigrants to America
during the late 19th and early 20th centuries.19 ?Each had to struggle,? he said,
?and, to some extent, struggles still?to overcome the prejudices not of a
monolithic majority, but of a ?majority? composed of various minority groups of
whom it was said?perhaps unfairly in many cases?that a shared characteristic
was a willingness to disadvantage other groups.?20 Here he cited, among other
things, a 1977 federal regulation stating that ?[m]embers of various religious and
ethnic groups, primarily but not exclusively of Eastern, Middle, and Southern
European ancestry, such as Jews, Catholics, Italians, Greeks, and Slavic groups,
continue to be excluded from executive, middle-management, and other job
levels because of discrimination based upon their religion and/or national
?As the Nation filled with the stock of many lands,? Justice Powell
continued, ?the reach of the Clause was gradually extended to all ethnic groups
seeking protection from official discrimination.?22 Here he cited cases
recognizing the ?Chinese,? the ?Japanese,? and ?Mexican-Americans? as groups
protected by the Clause.23 ?The guarantees of equal protection,? Justice Powell
said, ?are universal in their application, to all persons within the territorial
jurisdiction, without regard to any differences of race, of color, or of
He acknowledged that Brown, Shelley v. Kraemer,25 and other landmark
cases addressed the exclusion of blacks from the mainstream of American
society. But he said it was no longer tenable to posit a ?two-class theory of the
15. Slaughter-House Cases, 83 U.S. 36, 71 (1873) (quoted in Bakke, 438 U.S. at 291).
16. Bakke, 438 U.S. at 291 (quoting Joseph Tussman & Jacobus tenBroek, The Equal Protection
of the Laws, 37 CALIF. L. REV. 341, 381 (1949)).
17. 304 U.S. 144 (1938).
18. Bakke, 438 U.S. at 292.
21. Id. at 292 n.32 (citing 41 C.F.R. ? 60-50.1(b) (1977)).
22. Id. at 292.
24. Id. at 292?93 (quoting Yick Wo v. Hopkins, 118 U.S. 359 (1886)).
25. 334 U.S. 1 (1948).
Fourteenth Amendment? that treats our society as comprised solely of a white
majority and black minority.26 Explaining that ?[t]he concepts of ?majority? and
?minority? necessarily reflect temporary arrangements and political
judgments,?27 he wrote:
[T]he white ?majority? itself is composed of various minority groups,
most of which can lay claim to a history of prior discrimination at the
hands of the State and private individuals. . . . There is no principled
basis for deciding which groups would merit ?heightened judicial
solicitude? and which would not. Courts would be asked to evaluate the
extent of the prejudice and consequent harm suffered by various
minority groups. Those whose societal injury is thought to exceed some
arbitrary level of tolerability then would be entitled to preferential
[treatment] at the expense of individuals belonging to other
groups. . . . As these preferences began to have their desired effect, and
the consequences of past discrimination were undone, new judicial
rankings would be necessary. The kind of variable sociological and
political analysis necessary to produce such rankings simply does not
lie within the judicial competence?even if they otherwise were
politically feasible and socially desirable.28
Justice Powell?s rejection of the black-white paradigm and corresponding
embrace of ethnic pluralism have been criticized, most notably by Ian Haney
L?pez.29 The ?ethnic analysis? of race, according to Professor Haney L?pez,
understands America as comprised of ?not dominant and subordinate races but a
welter of ?ethnically fungible? groups.?30 The treatment of race as ethnicity
permits the disaggregation of whites into discrete ethnicities, many of which
faced prior discrimination, and in this manner, whites and blacks as well as
Asians, Hispanics, and all other ethnic groups are put on the same constitutional
plane. This ?erase[s] whites as a dominant group,?31 Professor Haney L?pez
argues, and ?excise[s] subjugation from the story of twentieth century American
I agree it is problematic to draw a parallel between the enslavement and
subjugation of blacks and the historical discrimination suffered by white ethnic
groups. ?The subjugation of a historically disadvantaged group,? Professor Fiss
says, ?is the product of policies that cut across all walks of life.?33 It is no
accident that Professor Fiss focuses on the plight of black Americans, for whom
the term ?racial caste? bears painful and continuing relevance. Assimilating race
26. Bakke, 438 U.S. at 295.
28. Id. at 295?97.
29. Ian F. Haney L?pez, ?A Nation of Minorities?: Race, Ethnicity, and Reactionary
Colorblindness, 59 STAN. L. REV. 985 (2007).
30. Id. at 1037.
31. Id. at 1040.
32. Id. at 1039.
33. Owen Fiss, The Accumulation of Disadvantages, 106 CALIF. L. REV. 1945 (2018).
to ethnicity ignores the systematic and intergenerational maintenance of racial
hierarchy between African Americans and other groups.
This is not to deny that other groups, including white ethnic groups, have
experienced past discrimination. But the theory of cumulative responsibility is
not a theory of compensatory justice; it does not aim to sort out who owes what
to whom with the aim of recreating the world as it would be in the absence of
past discrimination (if that were even possible). Instead, the theory is one of
equal citizenship, and it requires institutions to be structured not necessarily to
remedy past discrimination, but to ensure that past discrimination does not
translate into an ongoing condition of racial subjugation.34 That challenge is the
particularly pernicious legacy of slavery and Jim Crow.
It is questionable, however, whether affirmative action policies, disparate
impact liability, or equal protection jurisprudence today can be entirely premised
on the particular history of blacks in America. For one thing, the term ?black?
elides some important distinctions. A recent study of nearly 700 black alumni of
Harvard Law School from the past fifty years found that nearly one in five
reported their primary racial identity as something other than black or African
American; the most common alternatives were Caribbean, African, or
multiracial.35 Whereas older respondents were more likely to identify as black or
African American, over 25 percent of those who went to Harvard after the year
2000 identified as something other than black or African American.36 These data
suggest that when collecting demographic data, we may need two boxes: one for
how society typically identifies you, and another for how you identify yourself.
The Harvard Law School study is consistent with findings by Lani Guinier
and Henry Louis Gates that a majority of Harvard?s black undergraduates are
?West Indian and African immigrants or their children,? or they are ?children of
biracial couples.?37 They estimate that only one-third of black students at
Harvard are from families in which all four grandparents were descendants of
slaves, prompting Harvard sociologist Mary Waters to question the aims of
affirmative action: ?If it?s about getting black faces at Harvard, then you?re doing
fine. If it?s about making up for 200 to 500 years of slavery in this country and
its aftermath, then you?re not doing well.?38 Of course, Harvard is not
representative of institutions generally, but it is significant that Justice Powell in
Bakke cited Harvard?s admissions plan as a key exemplar of constitutionally
valid affirmative action.39
Another Harvard sociologist, Orlando Patterson, has argued that
affirmative action ?should exclude all immigrants and be confined to
AfricanAmericans, Native Americans and most Latinos. [And it] should include an
economic means test. Only those who are poor or grew up in deprived
neighborhoods should benefit. At the same time, poor whites from deprived
neighborhoods should be phased into the program . . . .?40 This proposal echoes
comments by President Obama, who suggested in 2008 that affirmative action
should include poor whites and should not benefit people like his daughters, who
?have had a pretty good deal? in life.41
It is worth noting, in this regard, that the UC Davis affirmative action
program at issue in Bakke did not benefit blacks, Chicanos, Asians, and
American Indians solely by virtue of their race or ethnicity. Applicants from
those groups only benefited if they were found to be ?economically and/or
educationally disadvantaged.?42 Moreover, the program did not formally exclude
disadvantaged white applicants; about a quarter of applicants to the special
program were white. But the university did not admit any white students through
the special program.43
Although Professor Fiss often refers to blacks as a group, his main concern
is what he calls ?the Black underclass,? a group that ?continues to bear the
burden of our past? in the form of ?inadequate educational opportunities and
strikingly high rates of unemployment.? Members of this class ?remain isolated
in inner-city ghettos, and are often deprived of essential public services and are
subject to almost unimaginable levels of violence at the hands of both police and
gangs.?44 The question for public policy and constitutional law is how to
operationalize this focused concern. In defining the groups to be benefited by
affirmative action or protected by disparate impact liability, should we consider
not just race but also the quality of a person?s educational opportunities during
childhood, the extent of segregation in schools and neighborhoods, family wealth
and income, or the degree of economic mobility across generations?
Whatever the sociological facts were a mere generation after Brown, it is
becoming clear today that race alone is not enough to identify those burdened by
historical subjugation. Just as ethnic pluralism should not be permitted to mask
race as a relevant category, race as a category should not be permitted to mask
socioeconomic status or ethnic or cultural pluralism?for that too can result in a
dilution. Due to black immigration45 and the success of affirmative action and
other policies that have expanded the black middle class as well as the black
elite,46 blackness is no longer itself a marker of membership in an underclass to
the extent it was at the time of Brown or Bakke. What Professor Fiss calls ?the
Black underclass? is today defined by race together with socioeconomic status,
geographic isolation, and ethnicity understood as immigrant background
(voluntary versus involuntary47).
This understanding has implications for how institutions collect and report
demographic data. Sound policy-making will require not only the usual racial
and ethnic categorizations, but also cross-tabulations with socioeconomic and
other variables. This understanding also has implications for our discourse on
race. Ever since Bakke, we have conflated concepts of justice with concepts of
diversity. This conflation may be understood as a response to the law?s
endorsement of diversity-based rationales over remedial rationales for
raceconscious decision-making.48 But it has come at a cost. Diversity rationales
greatly expand the number of groups entitled to claim preference or special
protection, and they are an awkward fit as justifications for policies designed to
address entrenched patterns of racial subordination.49 Too often we speak of
45. See MONICA ANDERSON, PEW RESEARCH CTR., A RISING SHARE OF THE U.S. BLACK
POPULATION IS FOREIGN BORN (2015),
46. See BART LANDRY, THE NEW BLACK MIDDLE CLASS IN THE TWENTY-FIRST CENTURY
(2018); KARYN LACY, BLUE-CHIP BLACK: RACE, CLASS, AND STATUS IN THE NEW BLACK MIDDLE
CLASS (2007); MARY PATTILLO-MCCOY, BLACK PICKET FENCES: PRIVILEGE AND PERIL AMONG THE
BLACK MIDDLE CLASS (1999).
47. See Douglas S. Massey et al., Black Immigrants and Black Natives Attending Selective
Colleges and Universities in the United States, 113 AM. J. EDUC. 243 (2007); John U. Ogbu & Herbert
D. Simons, Voluntary and Involuntary Minorities: A Cultural-Ecological Theory of School
Performance with Some Implications for Education, 29 ANTHROPOLOGY & EDUC. Q. 155 (1998).
?Voluntary (immigrant) minorities are those who have more or less willingly moved to the United States
because they expect better opportunities (better jobs, more political or religious freedom) than they had
in their homelands or places of origin.? Ogbu & Simons, supra at 164. ?Involuntary (nonimmigrant)
minorities are people who have been conquered, colonized, or enslaved. Unlike immigrant minorities,
the nonimmigrants have been made to be a part of the U.S. society permanently against their will.? Id.
48. See Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198 (2016); Grutter v. Bollinger, 539 U.S.
306 (2003); Adarand Constructors, Inc. v. Pe?a, 515 U.S. 200 (1995); City of Richmond v. J.A. Croson
Co., 488 U.S. 469 (1989).
49. See Fisher, 136 S. Ct. at 2227?30 (Alito, J., dissenting) (criticizing the University of Texas?s
affirmative action policy for prioritizing blacks and Hispanics while ignoring Asian Americans, and for
ignoring diversity among Asian Americans); Grutter, 539 U.S. at 380?83 (Rehnquist, C.J., dissenting)
(criticizing the University of Michigan Law School?s affirmative action policy for applying the concept
of ?critical mass? differently to different racial or ethnic groups).
diversity when our real concern is racial justice.50 And, as the data on Harvard?s
demographics illustrate, we must be careful not to overstate the extent to which
policies designed to achieve diversity succeed in overcoming historical injustice.
In suggesting a broader sociological frame for addressing race, I recognize
there are aspects of racial hierarchy that are intrinsic to race itself, independent
of ethnicity or socioeconomic class. The most prominent and troubling of these
aspects is the disparate treatment of black people by law enforcement, a
phenomenon that cuts across socioeconomic and immigrant status. Just ask
Senator Tim Scott, tennis star James Blake, or (if he were alive to tell) West
African immigrant Amadou Diallo.51 Whether or not race is an adequate marker
of ongoing subordination in certain educational or employment settings, it is by
itself a salient marker of social subordination in domains like law enforcement.
Consider also the powerful sense of uplift that the election and reelection
of Barack Obama gave to countless black people across America, even though
he was born to a white mother and Kenyan father and grew up in Hawaii.52 It
may be that the advancement of black people of whatever background to elite
schools or positions of leadership potentially yields benefits for the black
underclass. But this thesis has always been controversial,53 and we should not
lose sight of the need for more direct interventions to aid the black underclass,
such as reforming the criminal justice system, improving public education, and
expanding access to good jobs.
Throughout his life?s work, Professor Fiss has spoken with eloquence and
moral clarity about the unfinished work of America?s First and Second
Reconstructions. He has focused his scholarship on the group for whom the
Constitution?s promise of equal citizenship was written but remains unfulfilled.54
50. See Patterson, supra note 40.
51. See Laura Barr?n-L?pez, Black GOP Senator Talks About Being Pulled Over by Police 7
Times in One Year, HUFFINGTON POST (July 15, 2016),
https://www.huffingtonpost.com/entry/timscott-pulled-over_us_5786bfffe4b08608d332eaa0 [https://perma.cc/X723-SPFZ]; Benjamin Mueller et
al., James Blake?s Arrest Brings Swift Apologies From New York Officials, N.Y. TIMES (Sept. 10, 2015),
[https://perma.cc/8EVX-8F62]; Michael Cooper, Officers in Bronx Fire 41 Shots, and an Unarmed Man
Is Killed, N.Y. TIMES (Feb. 5, 1999), https://www.theatlantic.com/magazine/archive/2014/05
52. See, e.g., Ta-Nehisi Coates, My President Was Black, ATLANTIC (Jan./Feb. 2017),
[https://perma.cc/EUC9-237W]; David Marx et al., The ?Obama Effect?: How a Salient Role Model
Reduces Race-Based Performance Differences, 45 J. EXPERIMENTAL SOC. PSYCH. 953 (2009).
53. See, e.g., William A. Darity, Jr., How Barack Obama Failed Black Americans, ATLANTIC,
(Dec. 22, 2016),
https://www.theatlantic.com/politics/archive/2016/12/how-barack-obama-failedblack-americans/511358 [https://perma.cc/2624-2W2Z]; Brown & Bell, supra note 38, at 1240 n.34
(?Years after [W.E.B.] Du Bois proposed the Talented Tenth solution, the concept was attacked and
criticized as being elitist.?).
54. See Fiss, supra note 33; OWEN FISS, A WAY OUT: AMERICA?S GHETTOS AND THE LEGACY
OF RACISM (2003); OWEN M. FISS, THE CIVIL RIGHTS INJUNCTION (1978); Owen M. Fiss, The Forms
of Justice, 93 HARV. L. REV. 1 (1979); Owen M. Fiss, Dombrowski, 86 YALE L.J. 1103 (1977); Owen
Few legal scholars today write the way Professor Fiss does, and his voice is an
inspiration?a reminder of why I chose law?every bit as much now as it was
over twenty years ago in our first-year small group.
I have suggested that a significant challenge for constitutional doctrine and
public policy is how to address our Nation?s most paradigmatic racial inequality
in the context of a racially and ethnically diverse society. Although it is a mistake
to analogize race to ethnicity, it is also a mistake to fixate on race without regard
to ethnicity or socioeconomic status. The black-and-white history of race in
America remains a strong undertow, but the task of eradicating racial hierarchy
has become more complicated as a result of immigration and economic mobility.
We need a more nuanced approach, one that is sensitive to evolving differences
between and within groups, and to differences in the significance of race from
one domain to another. It is fitting that we attend to these contingencies, for
ultimately it must be our shared goal not to reify the categories that defined racial
hierarchy in the past, but to disrupt those categories and that hierarchy in order
to become the Nation that our Constitution says we must become.
3. See Gilmore v. Utah , 429 U.S. 1012 ( 1976 ). Gilmore, the subject of Norman Mailer's 1979 book, The Executioner's Song, was the first person executed in the United States after the death penalty was reinstated in 1976.
4. See Mullane v. Cent. Hanover Bank & Tr. Co. , 339 U.S. 306 ( 1950 ).
5. See Hart v. Cmty. Sch. Bd. of Brooklyn, N.Y. Sch . Dist. No. 21 , 383 F. Supp . 699 (E.D.N .Y.
34. See Kenneth L. Karst , The Supreme Court, 1976 Term-Foreword: Equal Citizenship Under the Fourteenth Amendment , 91 HARV. L. REV. 1 ( 1977 ) ; Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL . & PUB. AFF. 107 ( 1976 ).
35. DAVID B. WILKINS & BRYON FONG , HARVARD LAW SCHOOL REPORT ON THE STATE OF BLACK ALUMNI II , 2000 - 2016 , at 35 ( 2017 ).
36. Id . at 35-37.
37. Sara Rimer & Karen W. Arenson , Top Colleges Take More Blacks, But Which Ones?, N.Y. TIMES (June 24, 2004 ), https://www.nytimes.com/ 2004 /06/24/us/top-colleges -take-more-blacks-butwhich-ones .html [https://perma.cc/D87P-W3Z8].
38. Id .; see also Kevin Brown & Jeannine Bell , Demise of the Talented Tenth: Affirmative Action and the Increasing Underrepresentation of Ascendant Blacks at Selective Higher Educational Institutions , 69 OHIO ST. L .J. 1229 , 1231 ( 2008 ) (?[B]lacks whose predominate racial and ethnic heritage is traceable to the historical oppression of blacks in the U.S. are far more underrepresented than administrators, admissions committees, and faculties realize .?).
39. Regents of the Univ . of Cal. v. Bakke, 438 U.S. 265 , 316 - 17 , 321 - 24 ( 1978 ) (opinion of Powell , J.).
40. Orlando Patterson , Affirmative Action: The Sequel , N.Y. TIMES (June 22, 2003 ), https://www.nytimes.com/ 2003 /06/22/opinion/affirmative -action-the-sequel .html [https://perma.cc /7HR9-6KJ3].
41. Rachel L. Swarns , Delicate Obama Path on Class and Race Preferences , N.Y. TIMES ( Aug . 3, 2008 ), https://www.nytimes.com/ 2008 /08/03/us/politics/03affirmative.html [https://perma.cc/9KDH - WTF3 ].
42. Bakke , 438 U.S. at 272 n. 1 , 274 - 75 & n.4 (opinion of Powell , J.).
43. Id . at 274- 276 & n.5.
44. Fiss , supra note 33, at 1971 .