Racial Classification and the Flawed Pursuit of Diversity: How Phantom Minorities Threaten "Critical Mass" Justification in Higher Education

Brigham Young University Law Review, 2007 by Thomas, Edward C

A. The Racial Continuum: From Bona Fide to Phantom Minorities

To ascertain what type of minority fulfills the Grutter Court's justifications for critical mass, this Comment looks at five fictional, arguably "Mexican"87 law school students-each claiming a varying degree of Mexican ancestry. Due to the nature of the phantom minority problem, this Part may appear driven more by social policy considerations than a strict legal analysis,88 but such a description is necessary to establish the problems with the current system, which can then be analyzed legally. Each of the hypothetical characters has blatant stereotypes, which the author does not agree with, but includes them here to make the reader aware of the possible racial differences worthy of affirmative action. It is the author's hope that each reader will appreciate these hypotheticals for the issues they raise, not the stereotypes they might contain. After all, one of the reasons the Grutter Court endorsed racial preferences within critical mass was to break down racial stereotypes.89

Removing gender from the equation,90 each Mexican student is male and a beneficiary of affirmative action in law school. A description of each student follows and is accompanied by a brief analysis of his minority status and contribution to critical mass. Of course, this list is in no way comprehensive of all possible degrees of Mexican ancestry or minority status, but it will provide a sufficient vehicle for discussion.

1. Juan Rodríguez del Carmen

Juan is originally from Obregón, Mexico. His family moved to the United States when he was ten years old so his parents could become migrant workers in Nebraska and, hopefully, provide a better life for themselves. Juan is easily recognized as Mexican because he has darker skin and frequently refers to his Mexican ancestry. Although Juan's family has been in the United States for nearly fifteen years his mother still has not learned English beyond common shopping words and farm terminology. Juan struggled in elementary school but had a Hispanic guidance councilor91 in high school that encouraged him to get good grades and attend college, which he did.92 He is now finishing his first year of law school.

Based on the policy justifications given in Grutter, there is little doubt that Juan is a bona fide minority-even if the Supreme Court were to apply a closer scrutiny of his minority status. Juan is likely to have a unique racial perspective that would add to "student body diversity"93 because his family does not speak English, he was born in another country, he speaks another language, he grew up as a migrant laborer alongside his father, and he has likely experienced racial prejudice - at least to the extent that it exists in Nebraska.94 He could, most likely, contribute to critical mass because other students will recognize that he is Mexican because of his appearance and comments.95 He could help change stereotypes about Mexican migrant workers and make class discussion more enlightening.96 He could also help his peers prepare for the workforce by allowing them to interact with someone with a different racial background and with unique life experiences. It appears that Juan is exactly the type of minority that will meaningfully contribute to critical mass.97