Friday, June 28, 2013

Latina/o Law Professors Respond to SCOTUSBlog Commentary on "Hispanics and Affirmative Action in State Universities After Fisher"

On Monday, the U.S. Supreme Court handed down its ruling in Fisher v. University of Texas, the much-awaited affirmative action case.  David Bernstein (George Mason) participated in a SCOTUSBlog on-line symposium of responses to Fisher.  His piece, Commentary: Hispanics and affirmative action in state universities after Fisher, which to me came somewhat out of the blue given that these issues were not raised in the case before the Court, questioned Latina/o identity, whether Latina/os should be eligible for affirmative action programs, and opined that Latina/os were the primary beneficiaries of the program at the University of Texas. 


A group of Latina/o law professors, led by Professor Tanya Hernandez (Fordham), respond here to Prefessor Bernstein's commentary. (I am one of the signatories to the letter.).  The letter begins:

"We are a group of Latino/a Law Professors who wish to address some of the fallacies of the David Bernstein ScotusBlog Commentary of June 25, 2013, “Hispanics and affirmative action in state universities after Fisher.” While this complex issue cannot be fully addressed in a short letter, we believe that the variations in Latino/a identity do not undermine the justifications for affirmative action because of the commonality in how “Hispanic” has been negatively racialized. We may all look different, have different cultures, linguistic abilities, and histories, but U.S. society tends to lump together all ”Hispanics” and often negatively stereotypes us as a result."

The letter continues:

"Stereotypes and pervasive animus have had devastatingly negative impacts on our people leading to their frequent mistreatment in this country. Latinos/as, historically and in the present, have been treated as inferior and discriminated against by White, Anglo (or English-speaking) America. The discrimination has included school segregation, residential segregation, and employment discrimination throughout the Southwest and in many other parts of the country. From the military annexation of lands formerly belonging to Latino/a people, as in the case of Mexico and Puerto Rico, or government efforts to remove us , as in the forced expulsion campaign of Operation Wetback that expelled U.S. citizens and noncitizens alike, to the overtly blatant efforts to forcibly demonize us and our cultures, as in the case of the “Americanization” or English-only efforts of the Twentieth Century, history is replete with examples of institutionalized racism that merits remedial redress.

The negative stereotypes and rampant discrimination create barriers across our society and in particular in the educational context impediments that affirmative action seeks to address. With respect to the University of Texas in particular, it is important to note that Mexican Americans are dramatically underrepresented in terms of numbers, at least partly because racism towards Mexican Americans, and towards all Hispanics, continues to rear its ugly head."


Professor Bernstein has posted a short follow-up to his commentary on The Volokh Conspiracy.  Among other things, he says that "I think that some subgroups of the Hispanic population (among others) may very well qualify for affirmative action under the social justice rationale . . . . "


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