Not Diverse, Just Black: Reparative and Cultural Justifications for Affirmative Action in Supreme Court

• In Event: Race, Ethnicity, and Civil Law

Abstract

In this article, I analyze the role of the state in creating shifting requirements for obtaining and assessing diversity by coding seven Supreme Court cases that have shaped affirmative action law and the meaning of diversity in higher education. I found a shift from an explicitly reparative frame of diversity to a cultural frame. I connect this shifting understanding of diversity to the shift in Black ethnic patterns of representation in higher education, following Massey et al.’s suggestion that the “sharp increase in [Black ethnic] representation among Black students at elite U.S. institutions” may be due to a field-wide shift from diversity as explicitly racial to diversity as broad (245:2007), which no research has engaged with critically. This analysis expands the typical division of discussion of race in higher education by looking infracategorically. Typical discussions of racial rhetoric in the law often think about how policies and rhetoric affect white people in one way and all non-white people in another way. I use Black variation to display how legal rhetoric actually operates intraracially, using the presence of post 1965 immigrant groups, such as Black ethnics, in higher education to delegitimize affirmative action policies. Thus I expand from remedial and diversity as the primary divisions to “reparative” and “cultural.”

Author

• Michaela McMillian Jenkins, Rutgers University