Friday, May 07, 2021

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 Abstract

Excerpted From: Kenneth B. Nunn, Diversity as a Dead-end, 35 Pepperdine Law Review 705 (April, 2008) (217 Footnotes) (Full Document)

 

KennethBNunnIn January 2007, pictures surfaced on the Internet of a party hosted by a group of law students at the University of Connecticut. The posted pictures were not flattering. While the students were doing nothing illegal, the behavior depicted in the photographs is hardly reflective of the type of conduct one would expect from future lawyers, judges, and political leaders. In fact, the pictures caused a firestorm of controversy and the interim dean and incoming dean of the school issued the obligatory expressions of concern. Unfortunately, the subject of the pictures, a “ghetto party,” is not a rare phenomenon on majority white college campuses. In this post-civil rights era, ghetto parties have occurred with regular frequency on historically white college campuses attended by clean-cut middle- and upper-class white students.

A “ghetto party” is a type of costume party where privileged white students dress up as low income Black or Latino inner city residents and act in ways that they perceive these inner city residents would act. White students adopt the dress codes, language styles, and body postures stereotypically possessed by urban Blacks and Latinos in order to gain a sense of superiority, or to experience vicariously the thrill of acting in the unrestrained ways they attribute to members of these communities. Sometimes white students dress in blackface to emphasize the otherness of the people they mock and to connect, consciously or unconsciously, with old racist tropes.

A few pictures illustrate the ghetto party phenomenon succinctly. In Figure 1, from the University of Connecticut law school party, a white male student wears a do-rag, a large bejeweled chain, and conspicuous gold-capped teeth, (otherwise known as a “grill”). A young woman, who is wearing a baseball hat set askew and covered by a hooded jacket, accompanies him. Both white students are mocking styles of dress exhibited by young urban African-Americans. In Figure 2, also from the University of Connecticut law school party, a young woman who appears to be pregnant wears a Baby Phat top while holding a bottle of wine. Baby Phat is a clothing line that is popular in inner city areas and has a predominantly Black clientele. Figures 3 and 4 are from a ghetto party held at Clemson University in January, 2007. In Figure 3, a white male student is shown in blackface. Figure 4 shows three white female students posing. The female student on the left has stuffed her pants with some material in order to enhance the size of her buttocks. In each of these pictures, alcohol containers are displayed prominently, as if the students intend to emphasize the licentious character of their behavior.

Figure 5 features a white female student from Tarleton State University in Texas. She is dressed like Aunt Jemima, a stereotypical Black image, with a handkerchief on her head. She is holding a bottle of pancake syrup in one hand and bottle of malt liquor wrapped in a paper bag in the other. The picture was taken at a ghetto party the students held to commemorate the Martin Luther King, Jr. holiday.

While these pictures are not necessarily exemplary of college student behavior, they are significant. They demonstrate the continuing salience of race on college campuses after years of integration and during an era of official colorblindness. The students depicted in these pictures may not be virulent “Bull Connor” racists, but they are evidently willing to enhance their own social standing by denigrating someone else's or, at the very least, they are prepared to entertain and titillate themselves without regard for the feelings of others. That their targets are vulnerable sectors of the African-American community simultaneously shows their ignorance of Black culture and their disdain for the African-American community as a whole. What matters here is not whether all white students participate in these kinds of parties, but why some number of otherwise intelligent college or law students would find a ghetto party to be an attractive social outlet.

One cannot help but wonder, upon seeing pictures such as these, whether the Supreme Court's rulings on diversity in higher education have made any difference at all. Of course, the answer to this question depends both on how one frames the problem represented by the “ghetto party” phenomenon and how one interprets the Supreme Court's diversity jurisprudence. Certainly, it could be argued that the ghetto partygoers suffer from a lack of exposure to African-American people and culture. On the other hand, the inverse could be true. It may be that the presence of African-American students on historically white campuses has generated this new entertainment trend as a form of backlash. In other words, the problem raised by the ghetto parties could be framed either as one resulting from an existent monoculture, with an insufficient distribution of people of African descent, or as one that is in essence the result of an oppressive power hierarchy. To illustrate this latter possibility, consider that in 1850, when Africans in South Carolina constituted almost sixty percent of the population, their problem was not insufficient numbers, but a brutal and dehumanizing slavery.

Even if the problem was isolated to one resulting from a monocultural environment, the Supreme Court's diversity cases could only assist if they defined diversity in a way that allowed institutions to admit significant numbers of the type of individuals that the institutions were lacking. In the remainder of this essay, I argue that this is precisely what the Supreme Court's cases on diversity do not do. Furthermore, I argue that the Supreme Court's view of diversity is flawed because it does not address existing power differentials between Blacks and whites. As a result, it is my contention that diversity, as it is defined by the Supreme Court, is a dead-end for those who are concerned about social justice and equity in higher education.

In Part II of this article, I explore the origins of the diversity concept and contrast it with the competing concept of remediation.

In Part III, I summarize the Supreme Court's recent jurisprudence on diversity and examine how the Supreme Court defines diversity for purposes of permitting affirmative action in higher education.

In Part IV, I point out some critical shortcomings with the Supreme Court's definition of diversity. I conclude with the observation that diversity, as it is presently conceptualized, is a bad choice for social justice advocates and suggests an alternative course of action for the future.

[. . .]

Between 1979 and 1985, the Supreme Court succeeded in making remedial-based affirmative action more difficult to sustain by requiring it to meet strict scrutiny. At the same time, the Court opened another basis for affirmative action--diversity. As a consequence, racial justice activists, civil rights litigators, and educational institutions have moved away from the remedial path and chose the way of diversity. But diversity ultimately will prove to be a dead end for reasons I have detailed in this essay. If court-based relief is to provide any benefit to communities of color, it will be through the remedial branch of antidiscrimination law. Because most of the Court's opposition to remedial affirmative action appears to be ideological in nature, social justice advocates must either work to emulate the success of the civil rights movement in changing the political culture, or accept the reality of American racism and return to reliance on collective activity for education and economic advancement.


Professor of Law, University of Florida Levin College of Law. A.B., 1980, Stanford University; J.D., 1984, University of California, Berkeley School of Law (Boalt Hall).


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