Copyright (c) 2001 University of Michigan Law School

Michigan Journal of Race & Law

 

Fall, 2001

 

7 Mich. J. Race & L. 33

 

 

ARTICLE: A GENERAL THEORY OF CULTURAL DIVERSITY

 

Steven A. Ramirez*

 

 

* Professor of Law, Washburn University School of Law. Of Counsel, Polsinelli, Shalton & Welte, Kansas City, Missouri. I wish to thank Associate Professor Alex Glashausser for contributing many helpful suggestions and valuable insights to this Article. 

 

SUMMARY:

 ...  It does not appear that this approach to cultural diversity has yet been fully understood by either institutional or legal authorities. ...  Valuing cultural diversity is a facially neutral consideration that is best practiced and viewed not as race-conscious but instead as culture-conscious. ...  The key issue underlying whether valuing cultural diversity violates racial discrimination laws is the legal construction of race, particularly in the context of the law of racial discrimination. ...  Indeed, not only does "race" not exist, but giving any content to the scientific meaning of the term would require either that the number of racial categories be sufficient to account for innumerable local genetic variations or that twenty generations of genetically engineered inbreeding be undertaken. ...  This illustrates the divergence of race from culture; genes do not dictate cultural facility and do not ensure the benefits of cultural diversity. ...  Thus, valuing cultural diversity means looking past race to determine an individual's potential contribution to cultural diversity. ...  Thus, valuing cultural diversity is merit-driven in that each individual's contribution is assessed independently of their "race. ...  Under this approach to valuing cultural diversity, and given the empirical case in favor of diversity, it is difficult to see how the Court could ever find valuing cultural diversity to be "motivated by race. ...  

 

TEXT:

 [*33]  

INTRODUCTION

 

 Recent affirmative action litigation involving the University of Texas, n1 the University of Washington, n2 and the University of Michigan n3 has once again ushered the diversity rationale for affirmative action onto center stage. This Article focuses on a different aspect of diversity that entails culture-conscious decision-making that seeks to exploit meritorious cultural insights, experiences, and facilities offered by persons of traditionally-excluded backgrounds. It does not appear that this approach to  [*34]  cultural diversity has yet been fully understood by either institutional or legal authorities. Harvard and Justice Powell understand, n4 but few appreciate fully what they are saying. n5 If the goal of an institution is to achieve increased cultural diversity then the best way of doing so is through decision-making that values cultural diversity. Valuing cultural diversity is a facially neutral consideration that is best practiced and viewed not as race-conscious but instead as culture-conscious. n6 Race need not be a proxy for cultural diversity. n7 Race and culture are overlapping and divergent. n8 Culture crosses racial boundaries. n9 People of any "race" may become  [*35]  acculturated to cultural traits of other groups. n10 Cultural diversity is achieved by looking at a host of factors (i.e., geography, socio-economic status, unique experiences) beyond race. n11 So, if cultural experiences and insights are a legitimate non-racial institutional value, and not just a proxy for race-based decisions, making classifications based upon the possession of cultural insights or experiences is not tantamount to making racial classifications, and therefore cannot run afoul of proscriptions on racial classifications. n12 Such an approach to embracing diversity is not about racial fairness or remedying the racial hangover permeating our society after centuries of race-based oppression. n13 Instead it is about the rationalization of our nation's increasing diversity and the recognition that cultural diversity is a strength, not a weakness. n14 A side benefit of embracing diversity is increased opportunities for traditionally-excluded groups, but this side effect is not due to a racial preference. n15 Ironically, this side effect is due to  [*36]  our nation's racist past; traditionally-excluded groups benefit from an emphasis upon diversity because our nation needs a more culturally polylithic power structure than what is currently in place to maximize the opportunities implicit in an increasingly culturally polylithic environment. n16

An example illustrates the point: a more diverse business environment is quickly taking hold in corporate America due to increasing economic globalization and powerful demographic forces that promise to leave America with a more diverse population than ever before. n17 This environment is causing business to embrace diversity and to find ways to rationally respond to its new, more diverse environment. n18 One way business is doing this is by rationally seeking employees with more cultural diversity so as to attain a diverse workforce that can better understand and communicate with more diverse consumers and other constituencies. n19 Along the way, business has discovered that a diverse workforce is more creative, innovative, and, ultimately, more productive than a culturally monolithic workforce. n20 Diverse employees offer employers a new dimension of individual merit: the contribution of more culturally diverse insights, experiences, and understanding. n21 Such individual contributions provide value to employers because, traditionally, corporate America has been dominated by a single cultural perspective: that of the upper middle-class White male. n22 This value is naturally increasing in tandem with the increasing diversity in the business environment. n23 Employers that seek cultural diversity seek insights, knowledge, and understanding, not skin  [*37]  color, and not ancestral characteristics. n24 Similarly, seeking a diverse workforce entails no racial preference; instead, all persons (regardless of race) offer some ability to provide cultural insights. n25 The question is what value to place upon these insights. The answer will depend on whether the employer already has sufficient access to such insights or has a deficit of such insights within its workforce. n26 Employers will rationally value those cultural backgrounds that they need the most in light of their need for a given cultural background and the cultural make-up of their preexisting workforce. n27 Certainly, this movement has pried open opportunities for women, minorities, and other traditionally-excluded groups, but only because of the largely segregated nature of corporate America, not because of any preferences. n28 These initiatives are facially neutral, merit-driven, and culture-conscious, not race-conscious. n29 Thus, they do not violate anti-discrimination law. n30

This Article seeks to extend the analysis of these developments in the corporate world to anti-discrimination law under the Equal Protection Clause of the Fourteenth Amendment. n31 This Article will show that discrimination based upon cultural insights or experiences is distinct from race discrimination and will articulate a general theory of why and under what circumstances this holds true. The difference between culture-based discrimination and using culture as a proxy for race (Which would then be race discrimination) requires a careful and non-mythological understanding of what race is, and what race is not. Moreover, showing that culture discrimination is not prohibited by anti-discrimination law does not really resolve much, as cultural discrimination carries the risks of many of the evils our anti-discrimination laws are designed to address. n32  [*38]  Therefore, this Article concludes with proposals for regulating cultural discrimination so that fair discrimination based upon specific cultural facility, ranging from communication skills to cultural insights, is not accompanied by the potential for parasitic cultural discrimination. n33

A foundational element to fully comprehending the nuances of culture is a full understanding of what race is. Part I of this Article reviews the putative definitions of race which form the foundation of racial discrimination prohibitions. There is no scientific basis to race. Indeed, recent genetic learning teaches that the morphological features that have traditionally defined racial categories are literally only skin deep. The concept of race is instead largely based on the pseudo-science of yesteryear. Thus, race is mythological; a function of legal and social construction. The key issue underlying whether valuing cultural diversity violates racial discrimination laws is the legal construction of race, particularly in the context of the law of racial discrimination. Courts that enforce laws against racial discrimination have essentially left "race" undefined and instead rely upon an ad hoc analysis. Such an approach is understandable given the lack of scientific basis to the term "race." But, in the end, this part will show that "race" has always been legally constructed to turn upon morphological features and heritable traits. Although it is conceivable, perhaps even foreseeable, that morphological features will be a more remote element of the legal construction of race, morphological links to the legal construction of race are too deeply imbedded in our culture to  [*39]  ever be eliminated from the legal construction of race. Consequently, discrimination based upon cultural facility is not race discrimination, because cultural skills do not require any particular morphological features. This part of the Article concludes that race is an archaic concept, and that any modern formulation of race would exclude discrimination based upon cultural skills from racial discrimination prohibitions.

Cultural insights, understandings, and experiences are, however, non-mythological and, in a given context, a legitimate source of value. Part II of this Article examines both why and when morphological attributes are relevant to the institutional value of cultural diversity. Cultural insights and differences can be an important means of furthering an institutional mission. It seems as though the more we study cultural diversity, the clearer the benefits of diversity become. The benefits of cultural diversity do not stem from morphology or genetic bonds to ancestry but from insights that inhere to a unique cultural experience. The value of cultural insights knows no racial boundaries. Institutions can be expected to rationalize their approach to these benefits by seeking individuals with cultural backgrounds that have the most value to the institution based upon a contextual analysis of need as well as a contextual analysis of an individual's cultural background and experience. This analysis will increasingly focus upon a nuanced inquiry and relegate race or morphology to a side issue. Cultural diversity is important to a given institution generally because its institutional reality is less polylithic than its institutional mission requires. Institutional missions generally require more diversity due to a more diverse institutional environment, both domestically and internationally. Institutional realities lack multicultural facility and communication skills because of an exclusionary tradition. This is the case for diversity; it is utterly independent of morphology. This means of valuing cultural diversity stands in stark contrast to America's tradition of White supremacy; nevertheless, embracing cultural diversity is the rationalization of both America's increasing diversity as well as recent genetic learning.

Part III of this Article provides a framework for integrating values of cultural diversity (and to some extent the new learning from the world of genetics) into the law of Equal Protection. This part of the Article will provide a means for Equal Protection analysis to distinguish the rational embracing of cultural diversity from invidious and pernicious discrimination. First, because cultural facility is real and not mythological this Article concludes that discrimination based upon cultural abilities must be regulated less strictly than discrimination based upon mere skin color. Second, this part of the Article concludes that the Court must update its use of language and express increased scrutiny of merit systems that transmit embedded White supremacy as a means of accounting for the "new genetics." Finally, the Article argues that, although not illegal, invidious discrimination on any grounds, including cultural attributes, can lead to  [*40]  many of the evils we have witnessed again and again in this century and throughout human history. Therefore, even though the Court has not appeared anxious to protect individuals from discrimination based upon cultural elements, the Court should insist that any culture-based discrimination be carefully scrutinized to assure that it is not used invidiously to perpetuate discrimination, as the logic of race has been used in the past.

This Article concludes that it is not unconstitutional to truly value cultural diversity. The ultimate implication of this Article is that proscriptions against discrimination should be recast in a more rationalized and ultimately broader concept of Equal Protection. In the end, this Article suggests that the legal system begin coming to terms with the archaic nature of the term "race" and the reality of America's increasing diversity.

I. The Science, Pseudo-Science and Social Science of Race

 

 Race historically exists only as a tool of hierarchy based upon discredited psuedo-science, and dates to the beginning of the period of the western European conquest of most of the world. n34 This section will attempt to establish three points. First, modern science rejects the existence of race and traditional racial categories on a biological and genetic basis. Second, although there is no scientific basis to race, there is a historic conception of race that is based upon 18th and 19th Century psuedo-science, and which still holds sway today, much as it took almost four hundred years for full acceptance of Galileo's rejection of an earth-centric universe. n35 Third, unfortunately, despite its mythological nature, our legal system continues to adhere to a non-mythological, immutable conception of race, with the United States Supreme Court leading the way. This section of the Article concludes that, as presently conceived, the legal construction of "race" has inherent morphological and genetic dimensions.  [*41]  In the end, under the current conception of race, racial discrimination means discrimination based upon skin color, related morphological features, and other heritable traits. n36

There is no scientific concept of race. n37 Instead of any racial "continental divide" to biological and genetic variation, such variation (involving both visible and invisible biological traits) is expressed "continuously across continents." n38 "Small local populations vary slightly from each other as one proceeds from east to west from East Asia to Western Europe, or north to south from Scandinavia to the Congo basin." n39 Facets traditionally associated with "racial appearance," including skin color, hair, and facial features, do not "abruptly and discretely stop and start." n40 Most importantly, "invisible biological and genetic features vary independently, and not in accordance with traditional visible racial markers such as skin color or hair form." n41 Literally, one cannot judge genetic contents through genetic packaging. n42 Moreover, genetic variability of individuals within putative racial groups exceeds genetic variability of individuals from different populations. n43 Thus, scholars have observed that instead of simplistic racial categories, human biological variability should be thought of as "marble cake, crazy quilt, and tutti-frutti." n44 Simply stated, skin color and other racial markers have about the same significance as shoe size. n45

 [*42]  More recently, geneticists have studied human genetic content as part of the Human Genome Project, a monumental undertaking in which scientists from around world are mapping the human genetic code. n46 One extension of this endeavor is the Human Genome Diversity Project (HGDP), which is looking at the human genetic code to catalogue and define human biological variability. n47 Luigi Luca Cavalli-Sforza is the head of this effort, and has emphatically stated that traditional racial markers are literally skin deep. n48 Geneticists who have carefully studied non-visible  [*43]  human variation "have confirmed that homogenous races do not exist." n49 Morphological features that have traditionally served as racial markers are only superficial genetic differences that have evolved in response to differing climatic conditions; only a few genes of little significance are responsible for these features. n50 Indeed, not only does "race" not exist, but giving any content to the scientific meaning of the term would require either that the number of racial categories be sufficient to account for innumerable local genetic variations or that twenty generations of genetically engineered inbreeding be undertaken. n51 This is because genetic differences of populations represent less than 8% of human genetic variation and no major genetic discontinuities across populations have been observed. n52 Moreover, most human variation predates the migration of humans out of Africa. n53 Geneticists posit that the concept of relatively homogeneous groups with major biological differences is inconsistent with genetic evidence. n54 In sum, if race is defined as some arbitrary level of statistically significant genetic divergence between population groups, such variability is provided by insular local populations instead of visible morphological features. n55

Some do still believe in race. n56 Fundamentally, however, those arguing in favor of some scientifically based concept of race must fail. First, there  [*44]  is no better evidence regarding biological variation than the human genetic code. Consequently, the failure of geneticists to uncover any genetically defined racial boundaries undercuts any biological basis to putative racial differences. Second, even in the absence of definitive genetic evidence showing the existence of no tenable racial categories, it appears relatively clear that no system of racial classifications can account for vast human genetic diversity. n57 Third, those believing in race ignore the futile history of any attempts to place race upon a scientific foundation. n58

Once upon a time, scientists tried to show that race existed as a physical reality turning upon skull measurements. n59 Samuel Morton meticulously studied cranium measurements of various groups, finding that Whites had the biggest heads, and inferentially the most brain power of all the races. It was not until almost 1977 that this pseudo-science was shown to be ill-founded and biased. n60 Anthropologists attempting to create pigeon holes within which to fit human diversity have at various times concocted anywhere from 3 to 100 racial groups. n61 Over time, no coherent means of any racial classification system has ever emerged, and some efforts are almost laughable but for the pervasive human suffering that has invariably accompanied racial demarcations.

For centuries, scientists have tried in vain to give the concept of race a scientific basis. In 1795, for example, one prominent system of racial classification provided for five curious divisions: Caucasian, Mongolian, Ethiopian, American, and Malayan. n62 The term Caucasian was selected by Johann Friedrich Blumenbach because of the geographic proximity of Mount Caucus to the homeland of what he felt to be the most beautiful  [*45]  race of man - the Georgian. n63 Blumenbach based his racial classification system upon skin color, hair, and skull and facial characteristics. n64 Anthropologists built upon this foundation and busily set about to measure the differences in physiology that could be attributed to racial differences. n65 Indeed, this kind of anthropometry was the focal point of anthropology throughout the 20th Century. n66 Ultimately, this effort led to the idea of a "facial angle." n67 This angle was formed by two lines: one from the bottom of the nose to the forehead, and the second from the bottom of the nose to the orifice of the ear. n68 Supposedly, the greater the angle, the higher the indicated intelligence; once again, the Caucasian scientists assumed that Caucasians had the greatest facial angle of any racial group. n69

Charles Darwin tried to base racial categories upon the attractiveness of an individual to different kinds of lice. n70 J. Philippe Rushton, a leading psychometrician, tried to build racial categories based upon the distance semen traveled when a male ejaculated. n71 While none of this is very flattering to those who have attempted to place race upon a scientific basis, it is ultimately upon this sordid foundation that the social and legal construction of race rests.

Race does function, despite its lack of scientific basis, in the social realm, where it acts to categorize individuals based upon perceived morphological features, ancestry, and individual volitional choices as to racial identity. n72 Complex social conventions attach to a given set of morphological features and are associated with a specific racial identity. n73 This process mirrors yesteryear's pseudo-science. As a result of this process,  [*46]  individuals experience vastly different cultural realities. n74 This difference in cultural experience has a wide range of consequences that may be manifested in anything from scores on so-called intelligence tests to criminal incarceration rates. n75 These indicia of a fundamental divergence in social experience with no genetic explanation are emblematic of a society mired in racial oppression. n76 However, for purposes of this Article, the important consequence of "race" is that the unique cultural experiences associated with a racial identity provide a basis for institutions to achieve enhanced innovation, creativity, small group action, and broader institutional cultural facility. n77

Where science has failed, society has succeeded. America has always been plagued by racial categories, and these categories benefit from both social and legal sponsorship. n78 Although science could only find nonsensical racial categories, it prostituted itself to society's need for a racial hierarchy. Nonetheless, social mores and law need not rest on a rational basis. n79 Indeed, racial fabrication and government sponsored categorization continues to exist through the beginning of the 21st Century. n80 Pseudo-science failed, but that same pseudo-science lives on today in the form of the social and legal construction of race, which essentially mirrors that psuedo-science. n81 Society was a jealous mistress to the effort of scientists. n82  [*47]  In the end, science could only work to reflect the social mores of its cultural context. n83 Indeed, when science failed in the effort to construct race, it was rudely dismissed. n84 Thus, the pseudo-science of race is no more than reflective of cultural demands for a racial hierarchy. It is upon this same pseudo-scientific basis that our legal system has defined race. Law has played a central role in the social construction of race. n85 Racial fabrication has always involved an admixture of law, pseudo-science and social mores. n86

The definition of race has been legally synthesized in a number of contexts, most notably in the naturalization and race discrimination contexts. In the naturalization context, the Court defined race in terms of whether a given individual was a "White person" for purposes of satisfying the prerequisites for naturalized citizenship. n87 In Ozawa v. United States n88 the Court was faced with a Japanese petitioner seeking citizenship. n89 The Court held that he was not a member of the race "popularly known as Caucasian" and rejected his bid for citizenship. n90 The Court specifically invoked "numerous scientific authorities" that held Japanese persons to be "clearly of a race which is not Caucasian." n91 It is noteworthy that in its exercise of racial fabrication, the Ozawa Court specifically relied upon both "popular" beliefs as well as "scientific." In United States v. Thind n92 the Court rejected an Asian Indian's bid for citizenship because "the understanding of the common man" did not put Asian Indians  [*48]  within the White race, even though "scientific manipulation" had so included Asian Indians. n93 It is interesting to note that the Court recognized in Thind that racial categories were untenable. n94 The Court noted the lack of scientific success in defining racial categories. n95 Still, the Court continued its exercise in racial fabrication in finding that "White" meant a "racial" group defined by the "common man" as a "Caucasian" that is of European descent. n96 Moreover, this newly fabricated race was focused upon "physical group characteristics" that could "merge into the mass of our population." n97 Thus spoke the Supreme Court in fabricating the "White" race.

In each of these cases, the Court synthesized race based upon the same popular thinking that led science to strain beyond all rationality to validate both "race" and a racial hierarchy. n98 When science fell out of step with "the understanding of the common man," it was no longer deemed valid science. n99 In sum, even if the Court did not completely defer to scientific categories of racial groups, these cases treated race as immutable and supported by pseudo-science with regard to the significance of morphological features and ancestry. Significantly, this means that the process  [*49]  of racial fabrication was freed from any scientific mooring and anchored only by judicial divination of "popular" thought or "scientific" authority, as the Court saw fit. In other words, "race" is ultimately refined from the highest extent of judicial fiat and forged from popular social views.

Nor has the Court in more modern times come to grips with the lack of any scientifically based racial grouping. In 1987, the Court did note the futility of racial classifications, but then proceeded to treat race as an immutable element of individual genetic reality. n100 Most recently, in Rice v. Cayatano, n101 the Court seemed to assume that people are born into an immutable racial category of some sort that proceeds from some distinct physical characteristics. n102 The Court relied upon the use of lines of "ancestry" and "physical characteristics" to find a "racial classification." n103 The Court certainly did not reject "race" as a tenable basis for grouping individuals, nor did the Court take the opportunity to discredit or debunk racial mythology. Instead, the Court actually extended the construction of races by finding a whole new racial classification, essentially created by judicial fiat. n104 And, the Court even went further, seemingly laying down a formulation for the continued legal viability of the construction of race: the Court stated that racial discrimination is that which singles out "identifiable classes of persons ... solely because of their ancestry or ethnic characteristics." n105 In no case has the Court bothered to justify its approval of a continued process of racial fabrication; thus, speculation is the only means to explain the Court's interest in continuing the law's leading role in the social construction of race. n106 It is not as if there is a dearth of accessible learning that the Court could draw upon in demolishing the facade of race. n107 After Rice, the Court is in uncharted territory in terms of  [*50]  finding "races." Race still vexes the Court and the Court still brandishes it to get the results it seeks, just as it did in Ozawa and Thind.

Certainly, the Court is to be applauded for its sensitivity to laws that, without basis, treat distinct groups (defined genetically or ancestrally) with enhanced or diminished recognition or respect. n108 Still, given the heinous history of the concept of race and its utter lack of scientific viability, doing so under the auspices of race seems ill-advised at best. n109 Moreover, given the Court's central role in racial fabrication, it would seem appropriate to exit the business of race. n110 The core problem is that people really do not belong to any "race." n111 So, any statement of Equal Protection tied to that concept is doomed to suffer from logical infirmities. The Court has shown some inclination to move to ancestry as an exclusive basis of Equal Protection. n112 There is strong support for such a shift; still, if Governor Hatfield awards a state contract to some contractor other than a McCoy should this kind of "ancestral" discrimination really rise to Equal Protection magnitude? n113

 [*51]  In any event, Rice makes clear that the Supreme Court has not yet come to terms with the archaic nature of "race" and seems fundamentally unable to relegate race to the ash bin of history while still preserving the central purpose of the Equal Protection Clause in eliminating discrimination on the basis of pseudo-scientific race. n114 Moreover, Rice reaffirmed the importance of group "physical characteristics" in the process of racial fabrication and the creation of some kind of genetically immutable racial categorization. n115 Thus, in the Supreme Court's continuing efforts to legally construct some concept of race, physical characteristics and ancestry have played a pivotal role in the definition of race. n116 Culture, to the extent that it plays any role in the fabrication of races, is an afterthought at best. n117 In fact, the Court has refused to protect individuals from discrimination based upon cultural attributes, even when those attributes seem to be in pursuit of weak values and could easily be emblematic of invidious discrimination against sub-racial groups. n118

So, to date, the Supreme Court has hardly progressed beyond the pseudo-science of yesteryear. The Court seems to insist there is some basis to categorizing people based upon morphological characteristics and ancestry. n119 As hard as it is to expound any logical basis to "race" based upon the Court's opinions to date, it always requires some genetic bond, some heritable trait, and some "identifiable" characteristic. n120 Culture, cultural experience, and cultural insights do not fit this "racial" bill. They are simply not heritable.

II. The Value of Cultural Diversity

 

 Culture is different from race, and although there is a unique cultural experience associated with race, there is no unique cultural perspective  [*52]  that can be associated with race in a monolithic fashion. n121 The reality of race and culture is that members of the same race can have radically different cultural experiences and perspectives. n122 Individuals can become acculturated to certain elements of a racial identity while retaining their own racial identity. n123 Others may retain a racial identity that is largely divorced from the mainstream culture associated with that identity. n124 Thus, one cannot infer a given cultural experience with a certain "race." n125

Each of these propositions flows from the legal construction of race articulated by the Supreme Court, which has always been dependent on some genetically transmitted morphological features. n126 It is axiomatic that culture is not genetically attached to those genes that influence the legal construction of racial morphological features. n127 In other words, our racialized society can influence, but not dictate, cultural experiences, identity, and knowledge. n128 The reality of a non-genetic and non-morphological culture-based value is also manifest in the empirical and theoretical case supporting the benefits of cultural diversity. This Article focuses upon the case in support of cultural diversity in two related contexts:  [*53]  corporate America and higher education admissions. These areas enjoy a well-developed body of research into the benefits of cultural diversity, as well as the nature of such benefits. As such, they demonstrate that the benefits of cultural diversity are fundamentally non-morphological and non-heritable. Instead, institutions that value cultural diversity seek specific mental capabilities, such as cultural perspectives, insights, and skills.

The thinking that is driving corporate America to hire more persons than ever before from traditionally-excluded backgrounds is not that skin color will enhance performance. The business world, as could be expected, has taken the lead in rationalizing its approach to America's diverse populations by managing diversity to increase profitability. n129 Specifically, the business world is showing how to manage diversity to provide more innovative thinking, to spark creativity, to provide superior marketing insights, and to better manage more diverse workforces. n130 On virtually all of these fronts, business is exploiting the fundamentally different cultural insights and experiences of traditionally-excluded groups. n131 In addition, corporate America is learning that diversity initiatives create a positive environment for all employees, and thereby give employers a competitive advantage in an increasingly tight job market. n132 In no case does the business approach  [*54]  to cultural diversity depend upon exploiting an individual's morphological features. n133 Thus, the business case for embracing diversity depends not upon exploiting an element of race but a consequence of race - the unique cultural experience and insights that arise from complex social conventions.

The same is true with respect to the benefits of diversity in the context of education. Here, too, cultural diversity helps to facilitate the institutional mission of colleges and universities. n134 A diverse student body provides a learning environment where problems are attacked from more diverse view points. n135 Students consequently learn more and think in  [*55]  deeper, more complex ways in a diverse educational environment. n136 Diversity also facilitates the ability of students to function in a pluralistic democracy. n137 Moreover, "students who are exposed to a multicultural education through course work increase their level of racial awareness and understanding of multiple cultures." n138 The results of recent surveys support all of the evidence regarding the educational value of diversity. Eighty percent of White graduates from elite universities favor retaining or increasing their school's emphasis on diversity. n139 Similarly, seventy percent of law students responding to a survey regarding the benefits of diversity in the law school context reported that diversity has positively impacted the quality of their education. n140 Remarkably similar numbers were obtained by a survey of college faculty. n141 It is fair to say that impressive  [*56]  evidence supports the benefits of diversity in higher education in preparing students to excel in a multicultural world and a more diverse America.

Additionally, the educational mission of institutions of higher learning cannot be divorced from the needs of corporate America or American society generally. Many commentators have recognized that because corporate America needs a more diverse workforce, America's colleges should produce a more diverse group of graduates. n142 Indeed, this mandate permeates all levels of our educational system. We as a society need to address why it is that so many students from traditionally-excluded groups are inadequately educated and thereby excluded from the highest levels of our society. n143 It is also clear that much of the divergence in the "qualifications" of minority group members versus "Caucasians" is directly attributable to standardized tests. n144 As previously mentioned, these tests have been shown to reflect embedded societal racial bias. n145 In other words, the college admissions process is saddled by merit measurements that transmit racial oppression into education, where they function to shut doors to the very opportunities that can allow individuals to escape oppression. n146 Ultimately, American business will suffer from these policies of exclusion as tightening labor markets take a slow toll on growth. n147 All of this is in the name of standardized tests designed by psychometricians, when geneticists tell us that there are no race-based differences in ability. n148 This is a grim result for American business, American education, .  [*57]  American students, and American society. n149 A Rand Corporation study suggests that colleges are not meeting the needs of corporations because college graduates are lacking the cross-cultural competencies that are sorely needed for our nation to compete in a more globalized economy. n150

At the dawn of the 21st Century, the unfortunate truth is that "all too many Americans today live in separate racially homogenous worlds." n151 Consequently, "the mists of racial misunderstanding becloud the shared visions and aspirations and the common struggles that have the potential to bring us together." n152 It is clear that if cultural diversity is not appropriately valued, this same pathological segregation will burden American higher education and relegate its students to an inferior educational result. n153 Valuing cultural diversity gives institutions the ability to turn a societal albatross into an institutional strength. n154 Since it is viewed as fundamentally merit-driven, valuing cultural diversity can be achieved  [*58]  without creating additional tensions or generating racial resentment. n155 Institutions are therefore faced with a choice of allowing pervasive segregation and oppression to impede their ability to achieve their missions or embracing the potential benefits of cultural diversity as a means of rationally responding to a diverse environment. n156 Evidence showing the benefits that can be achieved from embracing cultural diversity explains why so many educational and business organizations are pursuing such an approach. n157

Both the business context and the educational context illustrate the far-ranging potential benefits of diversity. Neither serves to define those benefits. In virtually any institutional context, there are likely to be benefits from embracing cultural diversity. n158 In law enforcement, in order to understand and facilitate interaction with "racial" communities, police departments would want to hire individuals with a cultural experience with such communities. n159 Although it is certainly true that race as legally and socially constructed has nothing to do with fire fighting ability, n160 specific cultural linguistic skills certainly could help firefighters learn critical information rapidly in ways that may save lives - either by locating a fire or people imperiled by fire, or for treatment of those victimized by fire. n161  [*59]  Indeed, there is reason to believe that any institution that has a need to effectively communicate with the full breadth of American or world culture will benefit from cultural diversity. n162 Similarly, any institution that relies upon group decision-making can expect benefits from diversity. n163 Any institution that addresses problems can benefit from the deeper more multi-faceted thinking that is provided by culturally diverse groups. n164 In short, more work needs to be done to define the benefits of cultural diversity in a myriad of institutional contexts, but the general theory of cultural diversity predicts specific non-morphological, non-ancestral benefits arising from cultural insights and facility in a plethora of areas.

An important element of the value of cultural diversity is the growing empirical data validating the benefits of cultural diversity in a specific context. In the business arena there are studies showing that firms managing cultural diversity achieve greater innovation and creativity, n165 provide a more attractive workforce to potential workers, n166 and, ultimately, achieve enhanced market performance. n167 In the education context, empirical data supports the benefits of cultural diversity in terms of creating a more dynamic learning environment and graduates that are better prepared to deal with a more multicultural society. n168 All of this empirical data shows the value of cultural diversity and not specific morphological features. n169 Cultural facility is divorced from race, as no specific cultural insights or experiences are genetically transmitted. n170 Indeed, it is not just the addition of morphologically diverse individuals that triggers the institutional benefits that diversity practitioners seek. n171 Rather, institutions must manage diversity in a way that logically works to unleash the benefits of cultural diversity. n172 This illustrates the divergence of race from culture; genes do not dictate cultural facility and do not ensure the benefits of cultural diversity. n173 As a consequence, the empirical data supporting the case for diversity very often includes assumptions, implied or expressed,  [*60]  that diversity be properly managed. n174 Because morphological features alone do not logically support the benefits of cultural diversity, commentators recognize that institutions must strive to create environments that will unleash the valuable cultural facility and perspectives that institutions seek. n175 Obviously, valuing cultural diversity means looking for ways to make cultural diversity pay for an institution, as the benefits of cultural diversity do not accrue by dint of mere skin color. n176

This does not diminish the power of valuing cultural diversity in terms of extending opportunities to traditionally-excluded groups. This power can be thought of in theoretical terms or from a very pragmatic perspective. Theoretically, diversity will pay dividends so long as an institution faces a deficit of valuable culturally-based insights, in light of its institutional needs and the extent of its monolithic cultural tradition. n177 The more exclusive the institutional tradition, the more opportunities for individuals that offer cultural diversity. n178 The more diverse the relevant institutional environment, the more cultural diversity is likely to prove valuable. n179 From a pragmatic view, the numbers of traditionally-excluded persons who stand to benefit from institutional adoption of cultural diversity initiatives seem to exceed those who benefit from "affirmative action." n180 For example, those corporations valuing cultural diversity hire from within traditionally-excluded groups at a disproportionate rate - sometimes exceeding over 50 percent of new hires. n181 Some such corporations have boards or a group of officers and managers that also reflect a  [*61]  polylithic approach to assembling senior management teams. n182 Certainly, it is fair to say that these corporations mean business about cultural diversity. n183

As America continues its great multicultural odyssey, "race" will likely continue to diverge from culture and the whole concept of racial identity will lose gravity and become more complex. n184 The descendants of Thomas Jefferson provide a high-profile, but likely common, example. n185 As is well known by now, Thomas Jefferson took his role as founding father quite seriously. n186 In addition to his White family, Jefferson fathered a number of African Americans, at least as conventionally defined. n187 The Jefferson-Hemings family illustrates the separateness of race and culture as well as the utter instability of race. One branch of the Jefferson-Hemings family tree rejects any African American link and has acculturated into the mainstream majority population - in other words, they have "passed" into White America. n188 The other branch of the Jefferson-Hemings family morphologically also appears what would conventionally be termed White, but rejects anything other than African  [*62]  American identity and culture. n189 The two branches have the same essential DNA insofar as racial morphology and ancestry is concerned (hereinafter, for lack of any suitable term, "racial DNA") and so the "race" of each branch seems to turn upon cultural volition and identity volition. n190 Presumably, the "White branch" would have standing to sue if it suffered from a state-imposed racial classification that benefits African Americans; and the branch with the same "racial DNA," but a different racial identity, would have standing to sue if it suffered from a state-imposed racial classification benefiting Whites. n191 The law has not really faced up to this variable reality to racial identity; the Supreme Court has always assumed that one is "born" with a racial identity that is immutable and genetically defined. n192 Eventually, there will probably be some recognition that people are entitled to their own racio-ethnic identity, but there is reason to doubt that our world is presently equipped to deal with such a regime. n193

Now, consider the Jefferson-Hemings family but shift the focus from "racial DNA" to culture. Because culture is real and not founded on mythology, each family has fundamentally different cultural experiences and perspectives, despite having nearly identical "racial DNA." n194 Where an  [*63]  institutional mission is furthered by including persons who understand the stresses accompanying racial passing, the "White branch" Jefferson-Hemings would have an advantage regardless of their "racial DNA." n195 Meanwhile, the African American Jeffersons can almost certainly offer some rather unique views on the reality of racism in America; indeed, it may well be that an African American with the appearance of a White person can see racism like neither an African American who looks African American, nor a White person. n196 In any event, both groups of Jeffersons offer unique cultural insights and experiences in very different ways, despite the fact of the high degree of similarity in terms of "racial DNA" and related morphological features. n197

Establishing the overlapping and divergent nature of culture and race is just the beginning of the analysis. There must be more than "culture in the air" - there must be some basis for finding valuable cultural insights. The premise of cultural diversity is that all persons offer cultural insights and experiences. n198 Thus, returning to the Jefferson clan, it is true that, in our highly racialized society, both sets of Jefferson descendants offer a unique set of cultural attributes. n199 Still, selecting one over the other on the grounds of culture identification alone may be tantamount to racial discrimination. Only culture differs. And, if culture is deemed to differ in every instance that race differs, then culture truly is only a proxy for race. n200 Holding one set of cultural attributes to be superior to the other is presumptuous and indulgent of race-based stereotypes, and is thus contrary  [*64]  to the general theory of cultural diversity. n201 It is simply too easy to say "no persons of African American culture need apply" instead of "no African Americans need apply." Valuing cultural diversity does not turn, however, upon general cultural preferences. n202 Central to valuing cultural diversity is a focused and targeted pursuit of specific cultural facility, not merely cultural identity. n203 Unfounded cultural preferences are anathema to embracing cultural diversity - the whole point is for the institution to allow individuals with all cultural backgrounds to flourish. n204 It is this fundamental embrace of all cultural backgrounds that renders cultural diversity a facially-neutral value. But, in order to be facially neutral mere cultural identity cannot support cultural diversity; instead the merit must be found in specific cultural facilities. "Merit" serves to separate specific valuable cultural attributes from those having no value, but only in context.

Merit is also a slippery concept. High SAT scores, for example, seem ill-suited for measuring most skills, and would be an irrational basis for measuring many skills, like musical aptitude. n205 But, there is a growing recognition that merit is best defined as those individual attributes that serve to most further the institutional mission of the entity at issue, with a specific focus on the need at hand. n206 If the institution is a consumer products  [*65]  conglomerate seeking to penetrate upper middle-class Virginians, then it would seem wiser to hire the White Jeffersons to assist with that task. n207 Therefore, the first element to establishing cultural diversity as a legitimate measure of merit is a showing of institutional need for some non-morphological, non-ancestral (i.e., non-racial) cultural insight, knowledge, or experience.

A second element of merit is that it must be individually based. n208 Again, if mere membership in a racial group is "meritorious," then there is little difference between culture based discrimination and racial discrimination. n209 Only under the most narrow circumstances is race a legitimate measure of merit - in the sense that morphological and ancestral features really can be a non-invidious part of an institutional mission. n210 Consequently, there must be some individualized assessment that a given  [*66]  candidate is likely to promote the institutional need for cultural diversity. This means that there must be some reason beyond race for supposing that a given individual has the cultural insights, knowledge, or experience needed to further the institutional mission. For a decision to be culture-conscious, the culture-based value, not race, must be decisive. Interviews, personal statements, and other more nuanced inquiries are indicative of a bona fide investigation for cultural facility than mere reliance upon racial categories. Only through such a process can an institution rationalize its approach to cultural diversity in terms of a dimension of merit. n211

Finally, valuing cultural diversity is a facially neutral practice. n212 Valuing cultural diversity means a fundamental institutional appreciation for the potential value of all cultural perspectives. n213 There can be no cultural preference in such an environment. n214 If there is any bias resulting from cultural diversity, it arises from the shortage of perspectives from traditionally-excluded groups, because of a traditionally exclusive society. n215 The cultural insights of White males are valuable, too. n216

It may well be true that unfair cultural discrimination is dangerous even when it is not being used as a cover for racial discrimination. Indeed, perhaps unfair cultural discrimination should even be strictly prohibited. Nevertheless, when properly deployed in accordance with empirical data showing how to reap the benefits of cultural diversity, discrimination  [*67]  based upon specific cultural facility is no different from discrimination based upon any other measure of merit, which our society has long been so deeply wedded to on a theoretical level. Like any other measure of merit, it is individually based. Like any other measure of merit, it is dependent upon the needs of a given institution. Although it may be difficult to measure, it can be assessed similar to any other dimension of merit; every measure of merit entails assessment risks and predictive infirmities. In short, cultural diversity is a value that is best pursued in a race-neutral, merit-driven, culture-conscious manner.

III. Equal Protection and Cultural Diversity

 

 Cultural diversity can lead to important institutional benefits in a variety of institutional contexts. n217 These benefits result from non-morphological and non-heritable factors, and are, therefore, distinct from all conceptions of race. n218 Benefits arise from meritorious contributions that are offered by individuals in a race-neutral, culture-conscious manner. n219 The benefits are supported by powerful empirical evidence and arise from integrated efforts to unleash the insights that cultural diversity offers. n220 As such, valuing cultural diversity violates no theory of Equal Protection heretofore articulated. n221 Depriving our society of these multicultural benefits would serve no interest at all and could only be justified as a last gasp for White supremacy. n222

 [*68]  Although the pursuit of White supremacy is in accordance with American history, n223 it is not in accord with the best American ideals, nor with America's future. n224 Embracing cultural diversity is the only means available for maximizing our nation's performance. n225 The new genetic learning confirms that White supremacy is an irrational value, ignorant of the best scientific evidence, and is surely no basis for the foundation of a modern society. n226 As previously mentioned, empirical data also demonstrates that embracing cultural diversity does not generate racial tensions or resentment because it is merit-driven. n227 Thus, this part of the Article argues that there is no substantial policy basis upon which to object to embracing cultural diversity. n228 Policy weighs heavily in favor of facilitating cultural diversity.

 [*69]  In the past, the Court has recognized that a given institutional mission may render cultural familiarity or facility a meritorious contribution and specifically held that pursuit of such a value was not a "racial" preference. n229 Certainly it is the case that due to America's tradition of exclusion, minorities typically offer cultural skills that institutions may find in short supply relative to those of upper middle-class White males; still, the Court has never held that a legitimate measure of merit should be suspect merely because it has some level of correlation to racial groups. n230 Instead, the Court has recognized that a facially-neutral explanation "means an explanation based upon something other than ... race." n231 A factor will be deemed facially neutral even though it may "bear a close relation" to racial factors. n232 Finally, the Court has never stated that mere racial consciousness is constitutionally suspect; instead, the Court seems to be reaching a consensus that race must be a "predominant factor" in a given decision. n233 At the very least, the Court has recognized that when "race-consciousness" is inherent in a given context, it cannot be allowed to freeze government action. n234 At no time has the Court held that admissions decisions for higher education must not be race-conscious; to do so would be to abolish face to face interviews, require censorship of personal essays, and eliminate careful interviews with  [*70]  references. In education, as in hiring, no monochromatic curtain can be erected to assure an absence of race-consciousness. n235

All of this suggests strongly that the court would not reject true culture-conscious decisions, in accordance with the standards articulated in this Article for embracing cultural diversity. Race, properly defined is no more than an archaic pseudo-scientific concept, historically utilized as a means of asserting White supremacy and as a moralization for racial oppression. n236 But racial identification, as opposed to race, defined as a series of categories based upon yesteryear's pseudo-science, can lead to powerful cultural experiences and insights in our racialized society. n237 The use of an individual's racial identification to serve as a marker of potential cultural facility, is thus a rationalized use of an individual's own definition of their cultural experience. n238 An institution seeking specific cultural facility should be expected to look beyond a given racial identification; but given the value of cultural diversity, and the power of diverse racial experiences in our racialized society, prohibiting the use of race as a marker is destructive of the very cultural diversity that has been shown to be so valuable. n239 In short, the use of racial identification as a marker for culture-conscious decisions, if based upon bona fide institutional need for diversity, should not be constitutionally prohibited. In the activities discussed herein, hiring and college admissions, race-consciousness is unavoidable; moreover, culture and race are so intertwined that in order to unlock the full value of culture, race-consciousness is inherent to the exercise of valuing cultural diversity. n240

On the other hand, this Article has gone to great lengths to establish that cultural diversity values the possession of insights and other mental capabilities and processes and not morphology or "racial DNA" or ancestry. n241 It would be irrational to make decisions on the basis of "race" instead of on the basis of the ability to contribute cultural diversity in an institutionally meaningful way. n242 Using "race" as a marker is rational in a  [*71]  highly racialized society; using it as a sole factor is a race-based, not a culture-based decision. n243 Making race-based decisions under the cover of cultural diversity is still fundamentally using race as a proxy for culture. The Supreme Court will not allow such a practice, absent a compelling state interest. n244 Thus, valuing cultural diversity means looking past race to determine an individual's potential contribution to cultural diversity. n245 As previously highlighted, this means that some bona fide investigation beyond race must be conducted. n246

So conceived, valuing cultural diversity also does not run afoul of the Supreme Court's emphasis on the personal and individual nature of Equal Protection rights. n247 As Justice Powell highlighted in Bakke, an individual's contribution to cultural diversity can be assessed just as any other measure of merit - on an individualized basis. n248 It may be that the value of a given individual's diversity contribution is variable based upon the needs of the institution and the supply of different kinds of diversity available to the institution, but this is the case with all measures of merit. n249 Similarly, there may be infirmities in the process of assessing the value of an individual's contribution to meritorious diversity; again, however, no measure of merit is free of predictive imperfections. n250 In short, cultural diversity is no different from any other meritorious value. Thus, valuing cultural diversity is merit-driven in that each individual's contribution is assessed independently of their "race."

 [*72]  The constitution does not prohibit discrimination based upon merit. n251 Indeed, the Supreme Court has never stricken down a measure of merit that acts to legitimately (i.e., in a non-racial fashion) further an institutional mission. n252 Rather, the Supreme Court has acted aggressively to preserve the semblance of a "meritocracy." n253 This emphasis on "individual merit" would be for naught if the Court would reject the value of cultural diversity, for it would then be clear that insights and experiences would be embraced and valued only in accordance with the color of the individual who possesses such insights and not in accordance with their institutional value. n254 Nor is the Court free to substitute its judgment of  [*73]  the institutional value of cultural diversity; institutional values must be determined in the first instance by the institution. n255 Under this approach to valuing cultural diversity, and given the empirical case in favor of diversity, it is difficult to see how the Court could ever find valuing cultural diversity to be "motivated by race." n256

Still, merely showing that cultural diversity can be valued in a way that is squarely within Equal Protection doctrine is a start rather than an end. Both valuing cultural diversity and the "new genetics" challenge Equal Protection doctrine. A "revolution" has occurred in scientific thought on race and diversity; law must keep pace. n257 As it stands today, Equal Protection treats race as "immutable" and something an individual is "born" with, as opposed to recognizing the inherent instability of race, and that there really is only one race. n258 Similarly, the courts have thus far failed to recognize that cultural diversity is a meritorious value that exploits a non-morphological, non-heritable, dimension of an individual's racial experience, and is a key element to fulfilling America's promise and multicultural destiny. n259 The primary barrier to exploiting our cultural diversity to the maximum benefit of our society is the hangover of White supremacy, as ensconced in law by, among others, the Supreme Court. The implications of these defects are important.

With respect to the first problem, the Supreme Court has stumbled upon the right approach through no fault of its own. "Racial" classifications are almost always irrational, as shown by the new genetic learning, and should rightly be subject to the strictest scrutiny. n260 An adjustment is needed, however, in the language deployed to reach this result. The Court should redefine "race" (which is a rather fundamental concept in the law  [*74]  of Equal Protection) in a manner that reflects scientific teaching. Thus, race only has meaning as a historical relic turning upon traditional classifications of humanity based upon certain morphological features and other heritable traits. n261 The Court should frankly acknowledge the absurdity of thinking in racial terms and start an important process of national re-education by highlighting its own missteps in this area, which is vital to the well-being of our society. n262 Fundamentally, strict scrutiny should continue to apply to racial classifications, but the Court should clarify that this degree of scrutiny is reserved for classifications that turn upon the backwards thinking of the 19th and 20th Century pseudo-scientists regarding the significance and cataloging of racial groups based upon heritable morphological features. n263 In sum, the Court should refuse to participate in the further racialization of any group and strike down any laws targeting groups that have previously been racialized, at least as a general proposition. n264

This approach does not preclude all racial classifications. Strict scrutiny has been a controversial concept, but the Court has never treated strict scrutiny as always fatal. n265 Examples abound in which it is entirely illogical to ignore race even though race itself is entirely illogical. n266 The common theme to these cases, in general, is that a race-based classification rationally furthers important state missions in a non-invidious manner. n267 This approach is also fundamentally agnostic regarding race-based affirmative action. Affirmative action would instead turn on whether judges view unwinding or dismantling White supremacy as a "compelling" state interest. Given the traditional ideals and rhetoric of our republic, and the heinous history of racism in America and under law, it is difficult to comprehend that such an interest is not  [*75]  compelling. n268 The "new genetics" now means that any assumption of inferiority must be rejected, and all racial inequalities should be presumptively deemed to be caused by the vestiges of state sponsored White supremacy. n269 Three decades after the death throes of White supremacy de jure, "affirmative action" is needed. n270 Cultural diversity is our destiny, and without elimination of vestigial White supremacy, getting there will be more painful, more tortuous, and, possibly, more bloody. n271

A further adjustment would entail increased scrutiny of supposed non-race-based classifications that have a patent and embedded racial bias. n272 Currently, the Court will apply strict scrutiny to state action undertaken with a racially discriminatory intent, meaning that it is unexplainable on grounds other than race. n273 This can be a very high standard. n274 Under this formula, for facially neutral acts, just about any explanation will do in terms of serving as a cover for racism. n275 If valuing cultural diversity means anything, it means tearing down artificial barriers to success. n276 If the "new genetics" teaches that specific morphological and heritable features have virtually no general genetic significance, then actors cannot justify utilizing measures of ability that have a wide disparity  [*76]  between traditionally-defined racial groups. So far, the courts seem to indulge measures of merit that have embedded racial bias, while not allowing institutions to compensate for embedded racism. n277 One glaring example involves the University of Texas Law School. n278 Despite a tradition seething with overt racism, the Fifth Circuit explicitly approved legacy status as a basis for preference, while prohibiting any use of race. n279 Thus, relatives of alumni from times when only Whites could attend enjoy a preference over equally-qualified African Americans. Such a ruling can only be emblematic of judicial comfort with reinforcing embedded White supremacy. Another example is continued use of standardized tests, like the SAT and LSAT and other psychometrician efforts to rank human talent. n280 We know that these tests have an embedded racial bias in that they transmit racial oppression, yet they are warmly received by schools. n281 To address instances such as these, the Court should now condemn reckless racial discrimination, at the very least. n282 Under such a formulation, it would be tantamount to intentional discrimination to knowingly use measures of merit with unjustified racial biases. If we are to unleash the  [*77]  full benefits of our cultural diversity, such discrimination must be stemmed.

Finally, the Court needs to revisit cultural discrimination. In Rice, the Court came close to recognizing that discrimination against cultural groups is prohibited but, instead, invoked the time-worn process of racial fabrication. n283 But if the "new genetics" teaches that there are no genetically significant group distinctions, then there is no basis for requiring any such heritable bond for protection. Group oppression is the gist of Equal Protection, with or without a putative genetic bond. n284 The obsession with heritable traits is emblematic of fundamentally racist thinking. n285 When cultural groups are faced with discrimination based solely on attributes of cultural group membership, as opposed to the possession of valuable cultural insights or facility, the Court should extend the highest degree of Equal Protection. This will preclude discrimination based upon cultural elements or attributes (like language) without impairing our nation's ability to harness cultural skills. If we are to truly facilitate exploitation of our multicultural strengths, then cultural oppression and discrimination must be eliminated. n286

CONCLUSION: A Model of Cultural Discrimination

 

 This Article has attempted to resolve the challenges posed to Equal Protection doctrine by the "new cultural diversity," including the "new genetics." Each of these developments requires that the Supreme Court revise its fundamental approach to race. The "new genetics" teaches that since there are no genetically-defined racial groups, there is no immutable racial identity. The "new cultural diversity" shows that non-morphological and non-ancestral benefits, in the form of cultural understanding and insights, can be achieved by embracing cultural diversity, and that these benefits can be achieved in a facially-neutral, merit-driven, and culture-conscious manner. These benefits do not arise from ancestry, genetics, or the morphological features that are traditionally associated with race. They  [*78]  arise from a kind of learned knowledge that should be treated as any other measure of merit.

The Article has attempted to articulate a model of cultural diversity that reconciles Equal Protection doctrine with the "new cultural diversity" and the "new genetics." Essentially, this Article advocates a conservative retooling of Equal Protection so that discrimination based upon cultural facility or specific cultural expertise is widely permitted while generalized cultural discrimination is treated as tantamount to racial discrimination. Moreover, this Article advocates that the Supreme Court explicitly recognize the archaic nature of race and reject its own approach which is based upon the idea of racial immutability. The upshot of this approach is to maximize protection against irrational racial discrimination while permitting full exploitation of America's multicultural assets and ideals. At the same time, this Article urges that the Court begin to move beyond race and address the vestiges of state-sponsored racial oppression in a more aggressive fashion that reflects both the recognition that our society must embrace cultural diversity and that there is no genetic basis to the rampant inequalities within our society.

 

 

FOOTNOTES:

n1. Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1995) (holding that the University of Texas Law School, despite a notoriously racist history, may not consider race in its admissions process in order to attain a racially diverse student body). The Texas admissions program appears to have been custom made for a challenge on Equal Protection grounds since the plan segregated applications on the basis of race and subjected minority applicants to a separate admissions process. This hardly seems to be in accordance with the Bakke decision which simply held that race could be a "plus" factor that may be considered in a lawful admissions program. Univ. of Cal. Bd. of Regents v. Bakke, 438 U.S. 265, 316-17 (1978) (Powell, J., concurring). See also Johnson v. Board of Regents of the Univ. of Ga., 263 F.3d 1234, 1244 (11th Cir. 2001) (holding that pursuit of diversity must be narrowly tailored).

n2. Smith v. Univ. of Wash. Law School, 233 F.3d 1188, 1197 ( 9th Cir. 2000) (finding that diversity rationale may support a properly designed affirmative action program entailing race conscious admissions).

n3. Gratz v. Bollinger, 135 F. Supp. 2d 790 (E.D., Mich. 2001). The University of Michigan is embroiled in discrimination litigation regarding its race-based admissions process. Ironically, Michigan has established the importance of cultural diversity to its educational mission. However, it has thus far failed to show that its admission process merely entails discrimination based upon cultural facilities. The Michigan admissions litigation is the focus of a detailed University web page. University Of Michigan, Information on Admissions Lawsuits, at http://www.umich.edu/<diff>urel/admissions (last modified Nov. 2, 2001). The University could certainly accomplish much of its diversity goal by imposing a regime of culture-conscious decision-making. Such a policy would probably have an only marginally different entering class than that yielded by race-based decision-making. See infra notes 177-83 and accompanying text.

n4. Bakke, 438 U.S. at 316-18 (Powell, J. concurring) (discussing Harvard's emphasis on cultural diversity in its admission process).

n5. All prior legal scholarship addressing diversity generally focuses upon whether it is a justification for race-conscious measures, and not whether embracing diversity is a culture-conscious dimension of merit. This Article posits that culture-conscious initiatives can accomplish much that affirmative action (i.e., race-based initiatives) can achieve in terms of increasing opportunities for traditionally-excluded groups, without violating strictures against racial discrimination. Some argue that affirmative action differs from seeking diversity and that embracing diversity is, at least in the specific context of law school admissions, a facially neutral and merit driven practice. See Arnold H. Loewy, Taking Bakke Seriously: Distinguishing Diversity from Affirmative Action in the Law School Admissions Process, 77 N.C. L. Rev. 1479, 1480 (1999) (distinguishing diversity from affirmative action and stating that "where diversity is desirable, it is because it makes the institution better"). However, even these scholars generally assume that valuing diversity is a race-conscious practice. Id. at 1501-02. See also, e.g., Lino Graglia, Professor Loewy's "Diversity" Defense of Racial Preferences: Defining Discrimination Away, 77 N.C. L. Rev. 1505, 1507 (1999) ("Possible arguments for advantaging some individuals on the basis of race - and therefore necessarily disadvantaging others - are few and unpromising ... and diversity has become the new shibboloth."); Amy L. Wax, Discrimination as Accident, 74 Ind. L.J. 1129, 1187-90 (1999) (analyzing economics of diversity initiatives but failing to consider meritorious contributions of diverse individuals to enhancement of productivity); Jim Chen, Diversity in a Different Dimension: Evolutionary Theory and Affirmative Action's Destiny, 59 Ohio St. L.J. 811, 828 (1998) (stating that diversity has thus far been ill-defined in the legal arena and that "if we would entertain any hope of defining diversity, we had better consult analogous areas of ... non-legal knowledge."); Jennifer L. Hochschild, The Strange Career of Affirmative Action, 59 Ohio St. L.J. 997, 1016-18 (1998) (discussing business community's lack of interest in abolishing affirmative action, but failing to comprehend the use of individual diversity contributions as a dimension of merit). Some scholars object to the use of diversity as a justification for racial justice on the ground that it furthers the exploitative needs of embedded White supremacy; here too, the assumption is that diversity entails race conscious measures. E.g., Barbara Phillips Sullivan, The Gift of Hopwood: Diversity and the Fife and Drum March Back to the Nineteenth Century, 34 Ga. L. Rev. 291, 293 (1999) (criticizing "diversity for its service to White supremacy").

n6. See infra Part II.

n7. See infra notes 118-50 and accompanying text.

n8. See infra notes 184-203 and accompanying text.

n9. Culture is in fact defined in non-racial terms. See The Random House Dictionary of the English Language 488 (2d ed. 1987) (defining culture, in relevant part, as "the behaviors and beliefs characteristic of a particular social, ethnic, or age group" and "the sum total of the ways of living built up by a group of human beings and transmitted from one generation to another."); Webster's Third New International Dictionary 552 (1986) ("the total pattern of human behavior and its products embodied in thought, speech, action, and artifacts and dependent upon [humanity's] capacity for learning and transmitting knowledge to succeeding generations through the use of tools, language, and systems of abstract thought" and "the body of customary beliefs, social forms, and material traits constituting a distinct complex of tradition of a racial, religious, or social group"). Any racial dimension of culture is almost besides the point. Valuing cultural diversity means valuing insights, understandings and experiences that flow from group affiliation or exposure, not from skin color or other morphological features.

n10. Acculturation means the "process of intercultural borrowing marked by the continuous transmission of traits and elements between diverse peoples and resulting in new and blended patterns ... ." Webster's Third New International Dictionary 552 (1986).

n11. Bakke, 438 U.S. at 321-24 (appendix to the opinion of Powell, J.) (reprinting statement by Harvard describing its admissions program).

n12. E.g., Eric Yamamoto, Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America, 95 Mich. L. Rev. 821, 847-48 (1997) ("Culture discrimination is not necessarily wrong and may even be rational; anti-discrimination law allows it.").

n13. Despite its high ideals and its relatively multicultural history, America has yet to come to grips with its pervasively racist past. For example, American mythology still lionizes slave holders such as George Washington and Thomas Jefferson. Moreover, although most Americans have a passing familiarity with the outrages perpetrated against African Americans, few understand that until 1952 only "White persons" were eligible for naturalization, or that as recently as 1954 our government launched a program known as "Operation Wetback" that resulted in the deportation of over one million persons of Mexican descent, citizens included. Ian Haney Lopez, White by Law 38, 43 (1996).

n14. See John P. Fernandez, The Diversity Advantage 14-15 (1993) (noting that America is uniquely positioned to exploit diversity to achieve greater international competitiveness).

n15. This is a vital side benefit. The costs of American White male supremacy are enormous, albeit difficult to quantify. For example, respected commentators have raised the specter of a race war if racial tensions in our country do not ease. E.g., Richard Delgado, The Coming Race War? And Other Apocalyptic Tales of America After Affirmative Action and Welfare 119-27 (1996) (theorizing race war ignited by right wing extremists); Carl T. Rowan, The Coming Race War in America 282 (1996) ("I must say honestly that I doubt there is any way to prevent bloody racial strife in America").

n16. The extent to which minorities have been excluded from mainstream America and marginalized, even through the end of the 20th Century, is astounding. One commentator recently noted that "African Americans now comprise 50.8 percent of [the] prison population." Rowan, supra note 15, at 193.

n17. Steven A. Ramirez, Diversity and the Boardroom, 4 Stan. J.L. Bus. & Fin. 85, 109-23 (2000) (providing detailed overview of increasing diversity in American business environment).

n18. Id. at 88-90 (detailing efforts of corporate America to embrace diversity to enhance competitiveness).

n19. Id. at 101 (citing studies showing that diversity facilitates communication).

n20. Id. at 96-100 (citing studies showing enhanced creativity).

n21. Id. at 102-03 (citing studies showing competitive advantage for firms embracing diversity).

n22. Id. at 90 n.13 (citing statistics showing the continued exclusion of minorities and women).

n23. Id. at 106-07 (citing evidence of increased performance by companies embracing diversity).

n24. Thus, these initiatives do not violate Title VII, which does not prohibit discrimination based upon contribution of more valuable insights. Steven A. Ramirez, The New Cultural Diversity and Title VII, 6 Mich. J. Race L. 127 (2000) (showing that merit-driven, facially-neutral and culture-conscious initiatives do not violate Title VII).

n25. Id. at 128 n.3 (citing statements by diversity management experts that embracing diversity means valuing all employees).

n26. Id. at 149 n.108 (citing statements by diversity experts that merit requires an analysis of institutional needs and institutional context).

n27. See id. at 137 n.45 (citing study by economists showing that diversity is being driven by need to rationalize a more culturally dynamic environment).

n28. Id. at 131 n.13 (citing statistics showing that corporations embracing diversity are hiring higher percentages of minorities).

n29. See id.

n30. See id.

n31. U.S. Const. amend. XIV, 1 (no state "shall deny to any person ... the equal protection of the laws").

n32. The 20th Century has witnessed government sponsored and government coordinated hate campaigns and group oppression based upon socio-economic class, religious beliefs, race, political affiliation, ethnicity, and culture. Millions have died and millions more have been stripped of fundamental human dignity and human rights. All of the suffering has had the same root cause, manifested in particular circumstances against particular groups: the political expediency of indulging popular hatred, prejudice, and the need for scapegoating, eliminating enemies, and asserting dominance. American slavery posed an opportunity for our republic to come to grips with this phenomenon in the 19th Century before mechanized murder and oppression were feasible. The logical end of the Equal Protection Clause transcends slavery to prohibit all government sponsored and government coordinated hatred and oppression. Many of the Framers of the Equal Protection Clause seemed to recognize its transcendent purpose and the plain language of the Amendment does not limit its applicability to "suspect classifications" nor to race. "The 39th Congress was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular need and plight of the newly freed Negro slaves." McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 296 (1976). See also Bakke, 438 U.S. at 293 (citing statements from the Framers of the Fourteenth Amendment to show that the Equal Protection Clause states a principle of "universal application"). This Article seeks, however, only to fit cultural diversity initiatives within existing Equal Protection doctrine, and not to fundamentally rework the basis for that doctrine.

n33. The protection individuals enjoy with respect to fundamental rights acts to protect any group, culturally defined or otherwise, from extreme forms of oppression or discrimination. See Chester James Antieau & William J. Rich, Modern Constitutional Law 29.00 (2d ed. 1997). Of course, this has not prevented group based oppression that stripped citizens of basic rights. See Korematsu v. United States, 323 U.S. 214 (1944) (upholding internment of American citizens of Japanese ancestry).

n34. See generally Roger Sanjek, The Enduring Inequalities of Race, in Race 2, 10 (Steven Gregory & Roger Sanjek eds., 1994) (stating that the "roots and growth" of an "international racial hierarchy" developed as a justification for "conquest, dispossession, enforced transportation, and economic exploitation of human beings" beginning in the 1400s; and "that is what race is and all that it is").

n35. The Catholic Church recently rescinded its condemnation of Galileo. William D. Montalbano, Earth Moves for Vatican in Galileo Case, L.A. Times, Nov. 1, 1992, at A1 ("The Roman Catholic Church has admitted to erring these past 359 years in formally condemning Galileo Galilei ... ."). Continuing to extend racial mythology despite its lack of foundation will expose "racists" to this same type of historical embarrassment. See Leonard Lieberman, Alice Littlefield & Larry T. Reynolds, The Debate Over Race: Thirty Years and Two Centuries Later, in Race and IQ Expanded Edition 72 (Ashley Montagu ed., 1999) ("The word is out, the Earth is no longer the center of this Universe. The word is spreading, the human species is not divided into discrete races. A revolution is occurring in scientific thinking.").

n36. Yamamoto, supra note 12, at 847. See also Neil Gotanda, A Critique of "Our Constitution is Colorblind," 44 Stan. L. Rev. 1, 32 (1991) (citing Justice Scalia's focus upon "blood" as indicative of a biologically based notion of race).

n37. Marek Kohn, The Race Gallery 7 (1995) ("When Steve Jones, Professor of Genetics at the Galton Laboratory of University College London, remarked ... that race would not return to science, I objected that it was already thriving in psychology. Yes, he replied, but not in science."). See also Lieberman, Littlefield & Reynolds, supra note 35 (providing summary of surveys of anthropologists, content analysis of textbooks, monographs on human variation, research on human variation and media reports to document the demise of "race" in science).

n38. Sanjek, supra note 34, at 7.

n39. Id.

n40. Id.

n41. Id. See also Kelly Owens & Mary-Claire King, Genomic Views of Human History, 286 Sci. 451, 453 (1999) (stating that genetics shows that "stereotypic" racial features are "quite literally superficial, in that they affect exposed surfaces of the body" and "involve limited numbers of genes with very specific physiological effects").

n42. Sanjek, supra note 34, at 7 ("There is more "contents' than "package' in our biological makeup, and simplistic racial categories based merely upon a few "package' traits hardly constitute a scientific approach to biovariability.").

n43. Lieberman, Littlefield & Reynolds, supra note 35, at 84. At one point, this fact was noted by the Supreme Court. See Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 610 n.4 (1987) (and authorities cited therein).

n44. Sanjek, supra note 34, at 7.

n45. More scientifically stated:

 

Recent analysis of the melanocortin-stimulating hormone receptor gene (MCIR) suggests that various alleles of this single locus may underlie much of observed human variation in skin and hair color. This variation is largely due to varied amounts of eumelanin (brown and black melanins) and phaeomelanin (red and yellow melanins) produced by melanocytes. Eumelanin protects against ultraviolet (UV) radiation, whereas phaeomelanin may contribute to skin damage, including melanoma, induced by UV. The balance of melanins is regulated by melanocyte-stimulating hormone, which acts through its receptor. Amino acid sequence variants occur at multiple sites in the second transmembrane domain, the first extracellular domain, and the seventh transmembrane domain of the MCIR protein. Variation at these sites was found in more than 80% of individuals with red hair and fair skin that burns rather than tans, but in less than 4% of British or Irish individuals with skin that tans without burning, and in no African individuals. Among Asians, still other amino acid substitutions in MCIR are common. Nucleotide diversity at MCIR is several times higher than the average nucleotide diversity in human populations. High nucleotide diversity, coupled with common variation at nonsynonymous sites, suggest that MCIR variation is an adaptive response to selection for different alleles in different environments, possibly to differences in day length and hence available sunlight at different latitudes. If true, variation at this locus, which encodes evolutionarily important but superficial traits, has been the cause of enormous suffering. Variation in other traits popularly used to identify "races" is likely to be due to similarly straight-forward mechanisms, involving limited numbers of genes with very specific physiological effects. Of course, prejudice does not require a rational basis, let alone an evolutionary one, but the myth of major genetic differences across "races" is nonetheless worth dismissing with genetic evidence.

 

Owens & King, supra note 41, at 453 (citations omitted).

n46. See Human Genomics: The Home Straight, The Economist, May 13, 2000 (providing overview of Human Genome Project).

n47. See Elizabeth Pennisi, NRC OKs Long-Delayed Survey of Human Genome Diversity, 278 Sci. 568 (1997) (summarizing mission of HGDP).

n48. Scott Winokur, Maybe We're Better Off Back in the Family of Man, S.F. Examiner, Apr. 25, 2000, at A19 (quoting Cavalli-Sforza: "It is because they are external that these racial differences strike us so forcibly ... and we automatically assume that differences of similar magnitude exist below the surface ... this is simply not so."); Sharon Begley, Three is not Enough: Surprising New Lessons From the Controversial Science of Race, Newsweek, Feb. 13, 1995, at 67 (reviewing findings of Human Genome Diversity Project and interviewing project Chair, Luca Cavalli-Sforza: "The more we learn about humankind's genetic differences ... the more we see that they have almost nothing to do with what we call race.").

n49. Luigi Luca Cavalli-Sforza, Genes, Peoples, and Languages 13 (2000).

n50. Id. at 9-13. Geneticists specifically reject any genetically based differences in intelligence. See Matt Ridley, Genome: The Autobiography of a Species in 23 Chapters 86 (1999) ("There are differences between average IQ scores of Blacks and Whites, but there is no evidence that these differences are themselves heritable. Indeed, the evidence from cross-racial adoption suggest that the average IQ of Blacks reared by and among Whites is no different from that of Whites.").

n51. Cavalli-Sforza, supra note 49, at 13 (stating that pure races do not exist and would have to be artificially created through "inbreeding" for "at least" 20 generations); Id. at 25-27 (stating that population of Ithaca, New York is probably sufficiently genetically divergent from Albany, New York to be deemed separate races).

n52. Lieberman, Littlefield & Reynolds, supra note 35, at 84 (summarizing the results of three genetic studies).

n53. Cavalli-Sforza, supra note 49, at 27.

n54. Owens & King, supra note 45, at 452-53.

n55. Cavalli-Sforza, supra note 49 at 25-27.

n56. See Begley, supra note 48, at 67 (stating that as recently as 1989, only 70 % of cultural anthropologists and 50% of physical anthropologists reject race as a biological category). Psychologists too are wedded to the three race model. It allows them a simple and easy means of organizing many of their test results and other findings. Id. at 67. One such spectacle arose in 1995, when two psychometricians attempted to convince the American public that there were racial differences in intelligence, and that therefore, affirmative action should be radically modified. Richard J. Herrnstein & Charles Murray, The Bell Curve 340 (1994) (arguing that writers should "avoid flamboyant rhetoric about ethnic oppression" as an explanation for inequalities and accept that racial and ethnic differences in standards of living and other important areas stem from differences in "cognitive ability"). Their thesis has been subjected to powerful attack. See Ramirez, supra note 24, at 151-54 (summarizing evidence against racially based differences in intelligence). See also Lieberman, Littlefield & Reynolds, supra note 35 at 84 ("While individuals vary in their inherited intelligence, the claim that large subdivisions of the human species also vary in that regard has been demonstrated by a century of debate over race and IQ to be no more than the product of pseudoscientific imagination.").

n57. Cavalli-Sforza, supra note 49, at 30 (stating that there may be 1,000,000 genetically distinct social groups on Earth).

n58. Thomas F. Gossett, Race: The History of an Idea in America 69 (2d ed. 1997) ("The Nineteenth Century was a period of exhaustive and ... futile search for criteria to define and describe racial differences.").

n59. Sanjek, supra note 34, at 5.

n60. Id. (citing Stephen Jay Gould, The Mismeasure of Man 50-62 (1981)). The efforts to articulate some principled basis to categorize humanity into races, and the related quest of finding genetically based human intelligence is pocked by "scholarship" tainted by bias and even fraud. Cavalli-Sforza, supra note 49, at 188-89. See also generally Jeffrey Rosen & Charles Lane, The Sources of the Bell Curve, in The Bell Curve Wars 58-61 (1995) (reviewing discredited sources).

n61. Cavalli-Sforza, supra note 49, at 27.

n62. John S. Haller, Jr., Outcasts From Evolution: Scientific Attitudes of Racial Inferiority 1859-1900 4-5 (2d ed. 1995) (reviewing 19th Century pseudo-science regarding race).

n63. Id. at 5.

n64. Id.

n65. Id. at 7.

n66. Id.

n67. Id. at 9-14.

n68. Id.

n69. Id. at 11.

n70. Gossett, supra note 58, at 81.

n71. Henry A. Giroux & Susan Searles, The Bell Curve Debate and the Crisis of Public Intellectuals, in Measured Lies: The Bell Curve Examined 80 (Joe L. Kincheloe, Shirley R. Steinberg & Aaron D. Greesson III eds., 1996). It would be somewhat redeeming to state that Rushton hails from the 1920s or even the 19th Century; but in fact Hernnstein & Murray relied upon Rushton's work in the Bell Curve, and specifically defend him against charges of being a crackpot. Rosen & Lane, supra note 60, at 60 (quoting Rushton as stating: "It's a trade-off: more brain or more penis.").

n72. Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.-C.L. L. Rev. 1, 7 (1994) ("I define race as a vast group of people loosely bound together by historically contingent, socially significant elements of their morphology and/or ancestry."). Professor Haney Lopez summarizes scientific evidence regarding racial categories and the sordid scientific history of race in great detail. Id. at 11-18 (equating belief in race to belief in the "Easter Bunny.").

n73. Id. at 27-52.

n74. Id. at 38-39 ("Race is revealed as historically contingent, socially mediated systems of meaning that attach to elements of an individual's morphology and ancestry.").

n75. See Ramirez, supra note 24, at 150-52. Indeed, one could use such divergent indicia to construct an index of racial oppression that could be used to test various societies and their "success" in constructing categories that have social significance. Such an index would likely not cast American society in the most favorable light globally. See Craig Turner, U.N. Study Assails U.S. Executions as Biased Justice, L.A. Times, Apr. 4, 1998, at Al (reporting United Nations finding that death penalty in the U.S. is tainted by racism).

n76. Indeed, at least one commentator has explicitly posited that divergent standardized test scores are evidence of a social caste system. John U. Ogbu, The Consequences of the American Caste System, in The School Achievement of Minority Children 19 (Ulric Neisser ed., 1986). See also Ramirez, supra note 24, at 151 ("Alleged IQ differentials stem from pervasive social oppression.").

n77. See infra Part II.

n78. Haney Lopez, supra note 13, at xii.

n79. Owens & King, supra note 41.

n80. An example of the complex relationship between the social mores, psuedo-science and the law of race is the U. S. Census Form. See Population Census Bureau, Race and Ethnicity in the Census: 1860 to 2000, at http://www.prb.org/AmeristatTemplate.cfm? Section=RaceandEthnicity&template=/ContentManagement/ContentDisplay.cfm& amp;Content ID=3553 (last visited Nov. 13, 2001) (providing a chart summarizing the highly dynamic racial categories used on census forms from 1860-2000). In 1860, there were three races: White, African American and mulatto. In 2000, there are 21.

n81. Haney Lopez, supra note 13, at 13 (arguing that the history of science has long been the history of failed attempts to justify racial social beliefs).

n82. Haller, supra note 62, at x ("What this study intends to show is the manner in which their science provided a vocabulary and a set of concepts which rationalized and helped to justify the value system upon which the idea of racial inferiority rested in American thought.").

n83. United States v. Thind, 261 U.S. 204, 214 (1922) (holding that racial term "Caucasian" should be interpreted in accordance with "common speech" because "scientific manipulation" had extended White race too far).

n84. Id.

n85. Haney Lopez, supra note 13, at 9 ("The prerequisite cases compellingly demonstrate that races are socially constructed. More importantly, they evidence the centrality of law in that construction.").

n86. See supra notes 72-85 and accompanying text.

n87. Haney Lopez, supra note 13, at 5.

n88. 260 U.S. 178, 189-90 (1922) (holding that a person who was a resident of the U.S. for 20 years, who was a graduate of an American high school, who studied at the University of California, could not become a naturalized citizen because he was "of the Japanese race.").

n89. Id. at 189.

n90. Id. at 197 (stating that the words of the statute import a "racial meaning" and that "individual" color is irrelevant because "even" Anglo-Saxons range from "fair" to "swarthy").

n91. Id. at 198.

n92. 261 U.S. 204, 210 (1922) (holding that an "Aryan" of "high caste Hindu stock" could not naturalize because the "Aryan theory" has been discredited by ethnology as a "racial basis.").

n93. Id. at 211 ("The word Caucasian is ... at best a conventional term ... which, under scientific manipulation, has come to include far more than the scientific mind suspects.").

n94. Id. at 212 (stating that racial categories suffer from "irreconcilable disagreement" and that "the innumerable varieties of mankind run into one another by insensible degrees.").

n95. Id. ("Blumenbach has five races; Keane following Linneaus four; Deniker, twenty-nine.").

n96. Id. at 213-15.

n97. The Thind court posited:

 

It is a matter of familiar observation and knowledge that the physical group characteristics of the Hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as White. The children of English, French, German, Italian, Scandinavian, and other European parentage, quickly merge into the mass of our population and lose the distinctive hallmarks of their European origin. On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry. It is very far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.

 

Id. at 215. Like Ozawa, the Court in Thind relied upon a blend of science and common understanding. Id. at 210 (excluding "Aryan Theory" because of "modern" technology).

n98. Supra notes 78 to 86 and accompanying text.

n99. Thind, 261 U.S. at 211 (rejecting "scientific manipulation" of who gets the privilege of being a Caucasian).

n100. See Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 610 n.4 (1987). Ultimately the Court held that a plaintiff must show discrimination for being "born" into an "identifiable" group with "genetically" transmitted "ethnic or ancestral characteristics." Id. at 613.

n101. 528 U.S. 495, 513 (2000) (holding that classification benefiting those Hawaiians with ancestors dating before 1778 on Hawaiian islands was a racial classification because ancestry was used as a proxy for race).

n102. Id. at 513-14 (stating that Hawaiians in 1778 "shared common physical characteristics," "had a common culture," and that therefore a classification based upon ancestral lines was racial discrimination).

n103. Id. at 513-17.