* Staff Writer, Boston College Third World Law Journal (2003–2004).
1 Grutter v. Bollinger, 123 S. Ct. 2325, 2347 (2003); Joint Statement of Constitutional Law Scholars, Reaffirming Diversity: A Legal Analysis of the University of Michigan Affirmative Action Cases 1 (Civil Rights Project at Harvard Univ. ed., 2003), available at http://www.civilrightsproject.harvard.edu (last visited Jan. 27, 2004).
2 See Gratz v. Bollinger, 123 S. Ct. 2411, 2427–30 (2003); Joint Statement of Constitutional Law Scholars, supra note 1, at 1.
3 See Jack Greenberg, Affirmative Action in Higher Education: Confronting the Condition and Theory, 43 B.C. L. Rev. 521, 525–29 (2002); Paula C. Johnson, Ad-In/Ad-Out: Deciding Victory and Defeat in Affirmative Action Legal Contestations, 66 Alb. L. Rev. 433, 440–41 (2003). See generally Gwendolyn Zoharah Simmons, Racism in Higher Education, 14 U. Fla. J.L. & Pub. Pol’y 29 (2002) (asserting that affirmative action policies are being removed before their time).
4 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2339–40, 2343–44, 2346–47; Eduardo Bonilla-Silva, Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States 2, 9 (2003) [hereinafter Bonilla-Silva, Racism Without Racists].
5 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2339–40, 2343–44, 2346–47; Johnson, supra note 3, at 440. Racial inequality in education continues to have a disparate impact on the lives of African Americans; as Professor Johnson stated, “disparities in educational opportunities at the secondary and higher educational levels are among the societal conditions that limit the social advancement of many in the African American community.” Johnson, supra note 3, at 440.
6 See Bonilla-Silva, Racism Without Racists, supra note 4, at 4.
7 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2339–40, 2343–44, 2346–47; Bonilla-Silva, Racism Without Racists, supra note 4, at 4.
8 Bonilla-Silva, Racism Without Racists, supra note 4, at 2, 3; see Eduardo Bonilla-Silva, White Supremacy and Racism in the Post-Civil Rights Era 137–39 (2001) [hereinafter Bonilla-Silva, White Supremacy]. Today, “[w]hether in politics, housing markets, banks, stores, corporate America, restaurants, schools, or universities . . .” racial inequality is preserved in a style labeled “smiling discrimination.” See Bonilla-Silva, White Supremacy, supra note 8, at 138.
9 See Bonilla-Silva, Racism Without Racists, supra note 4, at 2. Color-blind racism, “which acquired cohesiveness and dominance in the late 1960s, explains contemporary racial inequality as the outcome of nonracial dynamics.” Id. at 2. Bonilla-Silva defines racial ideology as: “[T]he racially based frameworks used by actors to explain and justify . . . or challenge . . . the racial status quo.” Id. at 9.
10 Id. at 2–3.
11 Id. at 2. For example, the belief that minorities were placed on this earth by God in a servile position, or that minorities do not have the mental capacity to vote are no longer as prevalent as during Jim Crow. Id.
12 Id. at 2–3.
13 Id. at 2, 3. See generally Stephan Thernstrom & Abigail Thernstrom, America in Black & White 493–529 (1997) (asserting that while whites’ racial attitudes have come a long way, racial inequality has persisted in a climate where changing public norms have forced racism to become more subtle); Keith N. Hylton, A Framework for Reparations Claims, 24 B.C. Third World L.J. 31, 34–36 (2004) (stating that the social welfare of black families remains well below that of white families, as illustrated by the disparity in poverty rates between the two groups).
14 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2339–40, 2343–44, 2346–47; Bonilla-Silva, Racism Without Racists, supra note 4, at 13–14. According to Bonilla-Silva, racial discrimination is still “an important factor shaping the life chances of people of color.” Bonilla-Silva, Racism Without Racists, supra note 4, at 14. Bonilla-Silva also argues that blacks are still at “the bottom of the well” because of race. Bonilla-Silva, White Supremacy, supra note 8, at 11.
15 See discussion infra Parts III, IV.
16 See discussion infra Parts III, IV.
17 See discussion infra Parts III, IV.
18 See discussion infra Parts III, IV.
19 See discussion infra Conclusion.
20 Bonilla-Silva, Racism Without Racists, supra note 4, at 13. Bonilla-Silva asserts that his book is “a challenge to post-Civil Rights white common sense.” Id.
21 Id. at 12–13. Bonilla-Silva relies primarily on interview data because of his belief that survey results do not accurately depict the racial attitudes of the respondents. Id. The interview data for Bonilla-Silva’s book is derived from two projects, the 1997 Survey of Social Attitudes of College Students (SSACS) and the 1998 Detroit Area Survey (DAS). Id. SSACS surveyed 627 college students (including 451 white students) from three universities in different regions of the country. Of the 451 white students who participated, forty-one were interviewed. Id. at 12. The DAS is a “probabilistic survey of 400 black and white Detroit metropolitan area residents (323 whites and 67 blacks).” Id. at 13. Of the 400 surveyed, 67.5% responded, and eighty-four of these respondents participated in interviews. Id. at 13. The interview data from these two projects is utilized throughout Bonilla-Silva’s book to exemplify the various manifestations of color-blind racism. Id. at 12.
22 Id. 28–29.
23 Id. at 28, 47.
24 Bonilla-Silva, Racism Without Racists, supra note 4, at 28.
25.Id.
26 Id.
27 Id. at 29.
28 Id. at 47.
29 See Gratz v. Bollinger, 123 S. Ct. 2411, 2428–30 (2003); Grutter v. Bollinger, 123 S. Ct. 2325, 2343–44, 2347 (2003); Bonilla-Silva, Racism Without Racists, supra note 4, at 28, 29, 47.
30 Bonilla-Silva, Racism Without Racists, supra note 4, at 53–73. Bonilla-Silva argues that whites rely on the style of color-blindness to “[t]alk [n]asty about [m]inorities without [s]ounding [r]acist.” Id. at 53.
31 Id.
32 Id.
33 Id. at 16.
34 Id. at 53.
35 Bonilla-Silva, Racism Without Racists, supra note 4, at 53–54.
36 Id. at 54.
37 Id. Today, whites generally avoid using terms such as “colored,” “nigger,” or “Negroes” to describe blacks. Id. at 55.
38 Id. at 54. For example, most whites provide disclaimers when stating their racial views. Id. at 57. These disclaimers often take the form of apparent denials (“I don’t believe that, but . . .”), or claims of ignorance “I don’t know”). Id. The disclaimers allow whites to save face if they say something construed as racist because they will have the ability to fall back on these rhetorical shields (“I didn’t mean that because, as I told you, I am not a racist”). Id.
39 Id. at 54. Whites utilize diminutives to mitigate their racially biased opinions. Id. at 66. For example, seldom do whites who oppose interracial marriage state point-blank, “I am against interracial marriage.” Id. Instead, many whites that are against interracial marriage assert, “I am just a bit concerned about the welfare of the children.” Id.
40 Bonilla-Silva, Racism Without Racists, supra note 4, at 54. Bonilla-Silva explains that this rhetorical incoherence (e.g., grammatical mistakes, long pauses, or repetition) is the “result of talking about racially sensitive matters in a period in which certain things cannot be uttered in public.” Id. at 54, 68.
41 Id. at 63–64. Whites often project racism or racial motivations onto minorities to avoid responsibility for the persistence of racial inequality. Id. at 64. For instance, when explaining residential segregation, whites often state that blacks prefer the company of other blacks, and thus do not want to live in a neighborhood comprised mostly of whites. Id.
42 See Grutter, 123 S. Ct. at 2352, 2362 (Thomas, J., concurring in part and dissenting in part); Bonilla-Silva, Racism Without Racists, supra note 4, at 65; Greenberg, supra note 3, at 582–83.
43 Bonilla-Silva, Racism Without Racists, supra note 4, at 75–101.
44 Id. at 77.
45 Id. at 72, 83. Bonilla-Silva proclaims that “[w]ithout these stories, venting racial animosity would be untenable.” Id.
46 See Gratz, 123 S. Ct. at 2428–29. As part of his argument against the University of Michigan’s race-conscious admissions policy, Chief Justice Rehnquist explains that under the policy, person C, a highly qualified white student whose “‘extraordinary artistic talent’ rival[s] that of Monet or Picasso,” would likely be denied admission to the University of Michigan in favor of person B, “a black who grew up in an inner-city ghetto . . . [and] whose academic achievement was lower . . . .” Id. at 2428, 2429.
47 See Greenberg, supra note 3, at 538–46. At law schools that have eliminated race-conscious admissions policies there has been a predictable drop in minority enrollment. Johnson, supra note 3, at 445; see Simmons, supra note 3, at 35 n.28; Ronald Roach, Taking Stock, Resuming Course, Black Issues in Higher Educ., July 17, 2003, at 16, 19.
48 Johnson, supra note 3, at 441; see also Lani Guinier & Gerald Torres, The Miner’s Canary 47 (2002) (concluding that there is still a significant gap in educational attainment among the races); Glenn C. Loury, Affirmed . . . for Now, Boston Globe, June 29, 2003, at D1 (arguing that there is still a dramatic under-representation of blacks and Hispanics among top academic performers).
49 Johnson, supra note 3, at 441. As of 2000, only 17.8% of African Americans over the age of twenty-five had completed four or more years of college, while 34% of their white counterparts could say the same. Vital Signs: Statistics that Measure the State of Racial Inequality, 36 J. Blacks Higher Educ. 81, 83 (2002), available at http://www.jbhe.com/vital/36_ index.html (last visited Nov. 20, 2003).
50 Vital Signs: Statistics That Measure the State of Racial Inequality, 40 J. Blacks Higher Educ. 75, 77 (2003), available at http://www.jbhe.com/vital/40_index.html (last visited Nov. 20, 2003). In 1999, the total number of black men enrolled in higher education was 603,000, while the total number of that same class incarcerated in federal, state, or local prisons was 757,000. Id.
51 See Greenberg, supra note 3, at 525–30.
52 Christopher Jencks & Meredith Phillips, The Black-White Test Score Gap: An Introduction, in The Black-White Test Score Gap 1, 1 (Christopher Jencks & Meredith Phillips eds., 1998).
53 Id.
54 See Greenberg, supra note 3, at 526–27.
55 Theodore Cross & Robert Bruce Slater, Special Report: Why the End of Affirmative Action Would Exclude All but a Very Few Blacks from America’s Leading Universities and Graduate Schools, 17 J. Blacks Higher Educ. 8, 8 (1997).
56 See Greenberg, supra note 3, at 526–27, 538–46; Johnson, supra note 3, at 445; Simmons, supra note 3, at 35 n.28; Roach, supra note 47, at 19.
57 See Greenberg, supra note 3, at 538–46; Johnson, supra note 3, at 444–45; Simmons, supra note 3, at 35 n.28; Roach, supra note 47, at 19.
58 See Greenberg, supra note 3, at 538–46; Johnson, supra note 3, at 444–45; Simmons, supra note 3, at 35 n.28; Roach, supra note 47, at 19.
59 Greenberg, supra note 3, at 538.
60 Id. at 539. In Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), the United States Court of Appeals for the Fifth Circuit’s ruling that Regents of the University of California v. Bakke, 438 U.S. 265 (1977), which held that schools have a compelling interest in achieving a diverse student body and that race may be one of a number of factors considered by a school in reviewing applications, was no longer valid precedent and that the promotion of student body diversity was not a compelling interest, forced Texas to end its use of race-conscious admissions policies. Simmons, supra note 3, at 34 n.20.
61 Greenberg, supra note 3, at 539.
62 See id. at 541. These statistics mask the greater decline of black enrollment at more prestigious colleges and the rise in less selective ones. Id. 542–43. For example, at U.C. Berkeley, the most selective of the California state universities, freshman black enrollment fell from 252 in 1997 to 122 in 1998, and from 144 in 2000 to 138 in 2001. Id. at 543. At U.C. Riverside, however, which is much less selective, black enrollment actually increased after California’s ban on race-conscious admissions policies. Id. Without affirmative action, most blacks will be unable to meet the standards for admission set by the more prestigious state universities, but will still be admitted to schools with relatively low standards. Id.
63 Id. at 538–46.
64 Id. at 538–39, 546.
65 Id.
66 Greenberg, supra note 3, at 539–40, 545.
67 See id. at 546–47.
68 Id. According to Greenberg, in desegregated cities where high schools are integrated, a top percentage plan would not increase minority enrollment at state colleges and universities because well-qualified minorities would generally fall outside the top percentages of the class, which will predominately consist of white students. Id. at 546.
69 Id. at 540, 545.
70 Id. at 540.
71 See Greenberg, supra note 3, at 541, 544; Johnson, supra note 3, at 444–45; Simmons, supra note 3, at 35 n.28; Roach, supra note 47, at 19.
72 Greenberg, supra note 3, at 541; Roach, supra note 47, at 19; see Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).
73 Greenberg, supra note 3, at 541.
74 Id. at 544. This one black student who enrolled at Boalt Hall in 1997 actually had been admitted one year earlier while affirmative action was still in place, but deferred enrolling. Id. The ACLU Newsletter of January 28, 2000, stated that “[a]t the Berkeley School of Law, since the elimination of affirmative action . . . . The new students averaged only one point higher on the LSAT than the students admitted in 1996. The cost of one LSAT point was a 76% drop in admissions of African Americans . . . .” Simmons, supra note 3, at 35 n.28.
75 Greenberg, supra note 3, at 620 app. B.
76 See id. at 538–46; Johnson, supra note 3, at 444–45; Simmons, supra note 3, at 35 n.28; Roach, supra note 47, at 19.
77 See Greenberg, supra note 3, at 538–46; Johnson, supra note 3, at 444–45; Simmons, supra note 3, at 35 n.28.
78 See Gratz v. Bollinger, 123 S. Ct. 2411, 2428–30 (2003); Grutter v. Bollinger, 123 S. Ct. 2325, 2339–40, 2343–44, 2346–47 (2003); Bonilla-Silva, Racism Without Racists, supra note 4, at 2, 3, 9; Greenberg, supra note 3, at 538–46; Simmons, supra note 3, at 29.
79 See Gratz, 123 S. Ct. at 2430; Grutter, 123 S. Ct. at 2347.
80 438 U.S. 265, 320 (1977) (holding that schools have a compelling interest in achieving a diverse student body and that race may be one of a number of factors considered by a school in reviewing applications, but that an affirmative action program may not, in effect, function as a quota).
81 See Grutter, 123 S. Ct. at 2336.
82 Id. at 2347; Joint Statement of Constitutional Law Scholars, supra note 1, at 1.
83 Gratz, 123 S. Ct. at 2430.
84 Id. at 2427–30.
85 See id. at 2428–30; Grutter, 123 S. Ct. at 2339–40, 2343–44, 2346–47; Bonilla-Silva, Racism Without Racists, supra note 4, at 2, 3, 9. It is important to note at the outset that, when advancing the opinion that the Supreme Court utilizes a color-blind ideology, there is a distinction between the “color-blind ideology” depicted by Bonilla-Silva and referred to in this Book Review and the “race-blind approach” discussed elsewhere. See Bonilla-Silva, Racism Without Racists, supra note 4, at 2, 3, 9. The “color-blind ideology” discussed in this Book Review is a subconscious means of accounting for race in a way that appears to be race-neutral. See id. By contrast, the absolute race-blind approach holds that classifications based on race violate the mandates of the Constitution and actually hinder the quest for equality. See, e.g., John Marquez Lundin, The Call for Color-Blind Law, 30 Colum. J.L. & Soc. Probs. 407, 409 (1997).
While the majority holdings in the Supreme Court’s recent decisions reject the absolute race-blind approach advanced by Lundin, Justices Scalia and Thomas utilize not only color-blind ideology, but also adopt an absolute race-blind approach to Fourteenth Amendment analysis. See Grutter, 123 S. Ct. at 2349 (Scalia, J., concurring in part and dissenting in part) (declaring that race-conscious admissions policies in state education institutions are anti-constitutional); id. at 2365 (Thomas, J., concurring in part and dissenting in part) (quoting Justice Harlan’s famous declaration in his dissent to Plessy v. Ferguson, 163 U.S. 537, 559 (1896), that “[o]ur constitution is color-blind, and neither knows nor tolerates classes among citizens”); Joint Statement of Constitutional Law Scholars, supra note 1, at 1. For example, the Court in Grutter concluded that the Fourteenth Amendment does not require color-blind admissions processes at public schools. Grutter, 123 S. Ct. at 2337; see Loury, supra note 48, at D1.
86 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2339–40, 2343–44, 2346–47; Bonilla-Silva, Racism Without Racists, supra note 4, at 15–16. In arguing that the Supreme Court Justices depend on color-blind doctrine and use, in varying degrees, the various forms of color-blind racism in their opinions on the constitutionality of affirmative action, this Book Review in no way intends to suggest that any particular Justice is a racist, or that any Justice believes that race accounts for differences in human character or ability. See Bonilla-Silva, Racism Without Racists, supra note 4, at 172–73. Rather, this Book Review argues that these Justices utilize—perhaps even unwittingly—a currently dominant racial ideology, color-blind racism, that perpetuates racial inequality. See id.
87 See Gratz, 123 S. Ct. at 2427; Grutter, 123 S. Ct. at 2337–38; Joint Statement of Constitutional Law Scholars, supra note 1, at 1.
88 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995) (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 494 (1989)(plurality opinion)).
89 Id. at 227; Girardeau A. Spann, The Law of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies 55 (2000).
90 See Gratz, 123 S. Ct. at 2427; Grutter, 123 S. Ct. at 2337–38; Greenberg, supra note 3, at 538–46.
91 Joint Statement of Constitutional Law Scholars, supra note 1, at 1. The challenges to the admissions policies in Grutter and Gratz as well as the challenges to similar policies at other state universities resulted in significantly different outcomes in the lower federal courts. Id. at 1 n.4. The United States Court of Appeals for the Ninth Circuit in Smith v. University of Washington Law School, 233 F.3d 1188 (9th Cir. 2000), the United States Court of Appeals for the Sixth Circuit in Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002), and the United States District Court in Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000), declared that Bakke was still good law and that promoting diversity is a compelling governmental interest. Id. The Court of Appeals for the Fifth Circuit in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) ruled that Bakke was no longer valid precedent and that the promotion of student body diversity was not a compelling interest. Id. In Johnson v. Board of Regents of University of Georgia, 263 F.3d 1234 (11th Cir. 2001), the Court of Appeals for the Eleventh Circuit ruled that although promoting diversity may be a compelling interest, the University of Georgia’s race-conscious admissions policy was invalid because it was not narrowly tailored to advance that interest. Id.
92 Grutter, 123 S. Ct. at 2339.
93 Id. at 2340. These benefits include training for an increasingly diverse workforce and society, increased cross-racial understanding, and more well-rounded classroom discussion. Joint Statement of Constitutional Law Scholars, supra note 1, at 5.
94 See Grutter, 123 S. Ct. at 2339; Guinier & Torres, supra note 48, at 40; see also Gratz, 123 S. Ct. at 2427–28 (holding implicitly that student body diversity is a compelling interest); Emmanuel O. Iheukwumere & Philip C. Aka, Title VII, Affirmative Action, and the March Toward Color-Blind Jurisprudence, 11 Temp. Pol. & Civ. Rts. L. Rev. 1, 54 (2001) (arguing that “color-blind jurisprudence, although couched in neutral terms, is nothing more than an ideology employed . . . to maintain the [racial] status quo”).
95 See Grutter, 123 S. Ct. at 2339; Guinier & Torres, supra note 48, at 40–41; Iheukwumere & Aka, supra note 94, at 54. “[P]opular animosity toward programs that are regarded as ‘special’ to black people means that [race] targeted programs will increasingly fail . . . . [T]here is evidence [however] that Americans as a general matter would support programs aimed at helping all people . . . .” Guinier & Torres, supra note 48, at 40–41.
96 See Grutter, 123 S. Ct. at 2340, 2341.
97 See Greenberg, supra note 3, at 522, 572, 575. The Supreme Court should uphold affirmative action by declaring that it is a necessary means of improving the social conditions of blacks rather than couch its decisions on the constitutionality of race-conscious admissions policies in abstract terms that mask the social reality of blacks in America. Id.
98 See Grutter, 123 S. Ct. at 2340.
99 See 347 U.S. 483, 495 (1954); Bonilla-Silva, Racism Without Racists, supra note 4, at 182–85; Greenberg, supra note 3, at 522, 572, 575. The Supreme Court’s ruling in Brown focused on the importance of a quality education for children of all races, and ignored the fact that most whites disagreed with the Court about the importance of integration in public schools. See Sharon Elizabeth Rush, The Heart of Equal Protection: Education and Race, 23 N.Y.U. Rev. L. & Soc. Change 1, 2–5 (1997).
100 See Bonilla-Silva, Racism Without Racists, supra note 4, at 182–85; Greenberg, supra note 3, at 522, 572, 575.
101 Gratz, 123 S. Ct. at 2427; Grutter, 123 S. Ct. at 2342.
102 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2343–44 (stating that “[t]he importance of . . . individualized consideration in the context of a race-conscious admissions program is paramount”). Taking the two decisions together, “the most important inquiry into whether race-conscious admissions policy is narrowly tailored is whether it is flexible and provides sufficient consideration of all applicants.” Joint Statement of Constitutional Law Scholars, supra note 1, at 9. Opponents of affirmative action believe that “[t]he principle of racial equality reflects the need to treat people as individuals rather than as mere members of racial groups.” Spann, supra note 89, at 8.
103 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2343–44; Bonilla-Silva, Racism Without Racists, supra note 4, at 28.
104 Grutter, 123 S. Ct. at 2344.
105 Gratz, 123 S. Ct. at 2427–30; Joint Statement of Constitutional Law Scholars, supra note 1, at 9.
106 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2343–44; Bonilla-Silva, Racism Without Racists, supra note 4, at 28.
107 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2343–44; Bonilla-Silva, Racism Without Racists, supra note 4, at 28.
108 See Scott Cummings, Affirmative Action and the Rhetoric of Individual Rights: Reclaiming Liberalism as a “Color-Conscious” Theory, 13 Harv. BlackLetter L.J. 183, 183–84 (1997).
109 See id. at 183, 190, 191; see also Greenberg, supra note 3, at 580. Opposition to affirmative action often stems from the belief that the policy is erroneously based upon a theory of “group rights,” whereas relief under the Fourteenth Amendment’s Equal Protection Clause is only afforded to those who are personally injured. Greenberg, supra note 3, at 580.
110 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2343–44; Bonilla-Silva, Racism Without Racists, supra note 4, at 28.
111 See Gratz, 123 S. Ct. at 2428–30; Bonilla-Silva, Racism Without Racists, supra note 4, at 28.
112 Gratz, 123 S. Ct. at 2428–30.
113 See id. at 2428; Cummings, supra note 108, at 190. Hostility towards race-targeted government programs, such as affirmative action, often originates from the mistaken belief that the programs devalue merit. See Greenberg, supra note 3, at 582.
114 See Bonilla-Silva, Racism Without Racists, supra note 4, at 28. Abstract liberalism is an “[a]bstract and decontextualized extension of principles of liberalism to racial matters in ways that preserve racially unfair situations.” Bonilla-Silva, White Supremacy, supra note 8, at 142.
115 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2337–47; Bonilla-Silva, Racism Without Racists, supra note 4, at 28; Guinier & Torres, supra note 48, at 40–41.
116 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2337–47; Greenberg, supra note 3, at 538–46. Greenberg illustrates the continued gap in the area of higher education by reference to statistics on enrollment from states that have eliminated the use of race-conscious admissions polices from their public institutions of higher learning. Greenberg, supra note 3, at 538–46.
117 See Grutter v. Bollinger, 123 S. Ct. 2325, 2346–47 (2003); Bonilla-Silva, Racism Without Racists, supra note 4, at 29, 43–47.
118 See Bonilla-Silva, Racism Without Racists, supra note 4, at 29. Many whites mistakenly believe that being white is not a socio-economic advantage. See Bonilla-Silva, White Supremacy, supra note 8, at 151–53.
119 See Bonilla-Silva, Racism Without Racists, supra note 4, at 43. According to Gallup, “eighty-five percent of whites believe that black children had the same chance as white children to get a quality education.” Johnson, supra note 3, at 441.
120 See Grutter, 123 S. Ct. at 2346–47.
121 Id. at 2347.
122 See Simmons, supra note 3, at 38. Terrence A. Taylor, chairperson of the Commission on Racism, Justice, and Reconciliation of the Episcopal Diocese of Southeast Florida, stated: “Sure African Americans are doing better today in many respects than in previous generations. Yet we have not begun to scratch the surface of the damage caused by over 300 years of slavery and nearly a century of Jim Crow.” Id.
123 See Grutter, 123 S. Ct. at 2346–47; Bonilla-Silva, Racism Without Racists, supra note 4, at 43–47.
124 See Grutter, 123 S. Ct. at 2428–30, 2346–47; Bonilla-Silva, Racism Without Racists, supra note 4, at 47.
125 See Grutter, 123 S. Ct. at 2428–30, 2346–47; Bonilla-Silva, Racism Without Racists, supra note 4, at 47.
126 See Grutter, 123 S. Ct. at 2428–30, 2346–47; Greenberg, supra note 3, at 538–46; Johnson, supra note 3, at 445; Simmons, supra note 3, at 35 n.28; Roach, supra note 47, at 19.
127 Bonilla-Silva, Racism Without Racists, supra note 4, at 47.
128 See Grutter, 123 S. Ct. at 2428–30, 2346–47; Bonilla-Silva, Racism Without Racists, supra note 4, at 47.
129 See Grutter, 123 S. Ct. at 2352, 2362 (Thomas, J., concurring in part and dissenting in part); Bonilla-Silva, Racism Without Racists, supra note 4, at 63–66.
130 Bonilla-Silva, Racism Without Racists, supra note 4, at 16.
131 Id. at 64.
132 See id.; Greenberg, supra note 3, at 582.
133 See Grutter, 123 S. Ct. at 2362 (Thomas, J., concurring in part and dissenting in part); Bonilla-Silva, Racism Without Racists, supra note 4, at 16, 63–66.
134 Grutter, 123 S. Ct. at 2362 (Thomas, J., concurring in part and dissenting in part).
135 Id.
136 See id.; Greenberg, supra note 3, at 582–83. The inferiority argument is even more unfounded because generalizations about the stigmatizing or stereotyping effect of affirmative action policies are supported by little or no empirical data. See Greenberg, supra note 3, at 583–87.
137 See id. at 582–83; see also Cummings, supra note 108, at 238–39 (declaring that it is a social good for race always to be important in state decision-making because it promotes the value of race and thus diminishes any stigmatizing effect affirmative action may produce).
138 See Cummings, supra note 108, at 238–39; Greenberg, supra note 3, at 582–83.
139 See Grutter, 123 S. Ct. at 2362 (Thomas, J., concurring in part and dissenting in part); Bonilla-Silva, Racism Without Racists, supra note 4, at 16, 63–66.
140 Grutter, 123 S. Ct. at 2362 (Thomas, J., concurring in part and dissenting in part).
141 See id. at 2352, 2362 (Thomas, J., concurring in part and dissenting in part); Bonilla-Silva, Racism Without Racists, supra note 4, at 70.
142 Bonilla-Silva, Racism Without Racists, supra note 4, at 65. “Justice Thomas’ ridiculous stigma argument conveniently overlook[s] the fact that stigma to African-Americans did not start with affirmative action, but has been part of the history of our obsession with the color of a person’s skin.” Iheukwumere & Aka, supra note 94, at 34.
143 See Gratz v. Bollinger, 123 S. Ct. 2411, 2428–29 (2003); Bonilla-Silva, Racism Without Racists, supra note 4, at 77, 83. Opponents to affirmative action view race-conscious programs as “punishing innocent whites who were not the perpetrators of pre-Brown racial discrimination . . . .” Spann, supra note 89, at 8 (citing Brown v. Bd. of Educ., 347 U.S. 483 (1954)).
144 Bonilla-Silva, Racism Without Racists, supra note 4, at 72.
145 See Gratz, 123 S. Ct. at 2428–29; Bonilla-Silva, Racism Without Racists, supra note 4, at 83.
146 Gratz, 123 S. Ct. at 2428, 2429 (internal quotations omitted).
147 Id. at 2429.
148 See id. at 2428–29; Bonilla-Silva, Racism Without Racists, supra note 4, at 83–84.
149 Greenberg, supra note 3, at 589; see also Simmons, supra note 3, at 39 (arguing that the myth that whites have been hurt and displaced by affirmative action policies is also unsupported in the context of employment).
150 Thomas J. Kane, Racial and Ethnic Preferences in College Admissions, in The Black-White Test Score Gap, supra note 52, at 431, 453; see also Greenberg, supra note 3, at 589.
151 Kane, supra note 150, at 453; see also Greenberg, supra note 3, at 589.
152 Kane, supra note 150, at 453; see also Greenberg, supra note 3, at 589.
153 See Bonilla-Silva, Racism Without Racists, supra note 4, at 83–84; Greenberg, supra note 3, at 589.
154 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2339–40, 2343–44, 2346–47; Bonilla-Silva, Racism Without Racists, supra note 4, at 77; Greenberg, supra note 3, at 538–46; Johnson, supra note 3, at 444–45; Charles J. Ogletree, Tulsa Reparations: The Survivors’ Story, 24 B.C. Third World L.J. 13, 28–29 (2004); Simmons, supra note 3, at 35 n.28.
155 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2339–40, 2343–44, 2346–47; Greenberg, supra note 3, at 538–46; Johnson, supra note 3, at 444–45; Simmons, supra note 3, at 35 n.28.
156 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2339–40, 2343–44, 2346–47; Bonilla-Silva, Racism Without Racists, supra note 4, at 2, 3, 9; Greenberg, supra note 3, at 538–46; Simmons, supra note 3, at 29.
157 Bonilla-Silva, Racism Without Racists, supra note 4, at 2, 3.
158 Id.
159 Id. at 28.
160 Id. at 28–29, 53–54, 77.
161 See id. at 13–14.
162 See Gratz v. Bollinger, 123 S. Ct. 2411, 2428–30 (2003); Grutter v. Bollinger, 123 S. Ct. 2325, 2339–40, 2343–44, 2346–47 (2003); Bonilla-Silva, Racism Without Racists, supra note 4, at 12–13.
163 See Johnson, supra note 3, at 442. Johnson calls upon the Court to include a discussion of racial inequality in its recent opinions on affirmative action. Id. The only Justice whose recent opinions stress the importance of closing the racial gap in higher education is Justice Ginsburg. See Gratz, 123 S. Ct. at 2442–46 (Ginsburg, J., dissenting); Grutter, 123 S. Ct. at 2347–49 (Ginsburg, J., concurring). Justice Ginsburg’s opinions, and in particular, her dissenting opinion in Gratz, should be used by the Court as a foundation for a more color-conscious analysis of the constitutionality of affirmative action. See Gratz, 123 S. Ct. at 2442–46 (Ginsburg, J., dissenting); Grutter, 123 S. Ct. at 2347–49 (Ginsburg, J., concurring). Furthermore, in her dissent to Adarand Constructors, Inc. v. Pena, Justice Ginsburg also proclaims that affirmative action programs are necessary because of the persistence of racial inequality in the United States. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 270–75 (1995) (Ginsburg, J., dissenting).
164 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2339–40, 2343–44, 2346–47; Guinier & Torres, supra note 48, at 40–41.
165 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2339–40, 2343–44, 2346–47; Simmons, supra note 3, at 32–33. Americans “have forgotten the intent of affirmative action is to correct and to remedy historic wrongs and [seem] to believe the right-wing rhetoric against the policies and [are] supporting a return to the pre-civil-rights status quo, which upholds white skin privilege.” Simmons, supra note 3, at 32–33.
166 See id. at 38.
167 See Grutter, 123 S. Ct. at 2347; Greenberg, supra note 3, at 607–08. Professor Greenberg contends that affirmative action in higher education aids blacks in improving their overall social conditions. Greenberg, supra note 3, at 607–08.
168 See Bonilla-Silva, Racism Without Racists, supra note 4, at 182–85; Greenberg, supra note 3, at 604–08. Affirmative action can be defended as constitutional by viewing the policy as a means of improving the social standing of blacks. See Greenberg, supra note 3, at 607–08.
169 See Bonilla-Silva, Racism Without Racists, supra note 4, 182–85; Greenberg, supra note 3, at 604–08.
170 See Gratz, 123 S. Ct. at 2428–30; Grutter, 123 S. Ct. at 2339–40, 2343–44, 2346–47; Bonilla-Silva, Racism Without Racists, supra note 4, at 2, 3.
171 See Grutter, 123 S. Ct. 2346–47; Loury, supra note 48, at D1. As Professor Loury noted in reference to Justice O’Connor’s “twenty-five years” prediction:
Although the legal significance of . . . [Justice O’Connor’s] speculation is uncertain, the fact that this statement appears in the opinion should serve as a clear warning to supporters of affirmative action. We must not rest on our laurels. This recent victory may well be our last, and its benefits may be short-lived. Unless over the course of the next generation the dramatic underrepresentation of blacks and Hispanics among top academic performers is remedied, their access to selective institutions of higher education may one day be severely curtailed.
Loury, supra note 48, at D1.