New York University Public Law and Legal Theory Working Papers

Document Type



Indiana Law Journal, Vol. 83, 2008


According to trial testimony cited by Justice Kennedy in his dissent in Grutter v. Bollinger, one admissions officers at the Michigan Law School posed the question: Are Cubans Hispanic? Cubans, as everyone knows, are Republicans. Similar attempts at Hispanic parsing dotted the record of the law school case. Grutter, together with Gratz, presented the Supreme Court with a classic choice between rules and standards. In this symposium contribution, I argue that in blessing the individualized consideration conducted by the law school and eschewing the mechanical points-based program of the college of arts and sciences, the Court got its narrow tailoring analysis backwards, and the story of the excluded Cuban Republicans tells us why. The ultimate effect of individualized consideration is to augment, rather than limit, the harms of race-conscious decisionmaking by the state. Individualized consideration gives state actors the power to make authenticity judgments about the identities of individuals and groups, subsequently creating incentives for groups to define themselves using authenticity as a metric. When it comes to taking race into account, if our goals include reducing the salience of race, rules rather than standards should be the order of the day. In the course of defending this proposition in the narrow context of affirmative action, I hope to make a broader point about the importance of conceptualizing the category of Latino expansively. Because I believe authenticity claims to be polarizing and antagonistic to a civil rights agenda that simultaneously rejects colorblindness but seeks Latino assimilation into a mainstream political culture, I believe it is essential, when defining Latino, to be inclusive along lines of race, class, national origin, citizenship status, and linguistic identification. Such an approach helps destabilize the concepts of race and ethnicity without denying that they are relevant to social life and status.

Date of Authorship for this Version

July 2008