Sunday, August 18, 2013
Racial stereotypes -- generalizations that categorically attribute certain characteristics to members of a given race -- can take negative and positive forms. Negative racial stereotypes, which assign unfavorable traits to members of a given race, have justified odious practices, including slavery and segregation. These stereotypes, and the attendant practices, are rightfully seen as inconsistent with American law and the meaning of identity and equality in contemporary society.
This Article explores and exposes the problematic nature of positive racial stereotypes, which attribute favored or valued traits to members of a given race. In arguing that both negative and positive racial stereotypes should be seen as incompatible with the law and current social thinking on identity and equality, this Article identifies positive racial stereotypes in employment and admissions decisions that are condoned by courts, points out that these positive racial stereotypes carry unique and underappreciated social harms, and suggests that the positive racial stereotypes are not sustainable under Supreme Court’s existing equal protection jurisprudence. It also discusses whether the problems with positive racial stereotypes may spill over to the delicate political context of preferences given to Native-Americans in employment.
This Article closes by proposing that a fundamental legal norm -- that an individual be assessed according to his or her actual qualities rather than on the basis of assumptions tied to identity -- be applied to these areas of law.