We are a group of Latino/a Law Professors who wish to address some of the fallacies of the David Bernstein ScotusBlog Commentary of June 25, 2013, “Hispanics and affirmative action in state universities after Fisher.” While this complex issue cannot be fully addressed in a short letter, we believe that the variations in Latino/a identity do not undermine the justifications for affirmative action because of the commonality in how “Hispanic” has been negatively racialized. We may all look different, have different cultures, linguistic abilities, and histories, but U.S. society tends to lump together all “Hispanics” and often negatively stereotypes us as a result.
For instance, Marcelo Lucero, a New York resident of Ecuadorian descent with Lawful Permanent Resident status, was murdered in 2008 while simply walking in Long Island when a group of White teenagers declared they were out to attack “a Mexican.” This lethal game of what they called “beaner hopping” lumped all Hispanics together into an undifferentiated derided whole.
Stereotypes and pervasive animus have had devastatingly negative impacts on our people leading to their frequent mistreatment in this country. Latinos/as, historically and in the present, have been treated as inferior and discriminated against by White, Anglo (or English-speaking) America. The discrimination has included school segregation, residential segregation, and employment discrimination throughout the Southwest and in many other parts of the country. From the military annexation of lands formerly belonging to Latino/a people, as in the case of Mexico and Puerto Rico, or government efforts to remove us , as in the forced expulsion campaign of Operation Wetback that expelled U.S. citizens and noncitizens alike, to the overtly blatant efforts to forcibly demonize us and our cultures, as in the case of the “Americanization” or English-only efforts of the Twentieth Century, history is replete with examples of institutionalized racism that merits remedial redress.
The negative stereotypes and rampant discrimination create barriers across our society and in particular in the educational context impediments that affirmative action seeks to address. With respect to the University of Texas in particular, it is important to note that Mexican Americans are dramatically underrepresented in terms of numbers, at least partly because racism towards Mexican Americans, and towards all Hispanics, continues to rear its ugly head.
Affirmative action attempts to remedy racism; the availability of this remedy for Latinos should not be attacked because there also exists some racism among Latinos, let alone among individuals who might conceivably be classed as Hispanics. Affirmative action seeks to repair the ongoing harms directly attributable to past racism, and also responds to continuing discrimination and stereotyping. Or more fundamentally: affirmative action seeks to promote racial integration and racial reconciliation. It thus appropriately helps those groups long racialized as inferior–among whom, unfortunately, Latinos in the United States certainly should be counted.
*School affiliation provided only for purposes of identification.
Tanya Kateri Hernandez, Fordham Law School
Arthur Acevedo, John Marshall Law School
Raquel Aldana, Professor of Law; Pacific McGeorge School of Law
William D. Araiza, Brooklyn Law School
Larry Catá Backer, Pennsylvania State University School of Law
Steven W. Bender, Seattle University School of Law
Fernando Colon, Thurgood Marshall School of Law
Leticia M Diaz, Barry University School of Law
Eloisa C. Rodriguez-Dod, Florida International University College of Law
Silvia F. Faerman, Southwestern Law School
José Gabilondo, College of Law, Florida International University
Ruben Garcia, UNLV Law School
Eileen Gauna, University of New Mexico Law School
Laura E. Gómez, UCLA School of Law
Manuel A. Gomez, Florida International University College of Law
Steve Gonzales, Phoenix School of Law
Carmen G. Gonzalez, Seattle University School of Law
Marc-Tizoc González, St. Thomas University School of Law
Enid Trucios-Haynes, University of Louisville
César Cuauhtémoc García Hernández, University of Denver Sturm College of Law
Kevin Johnson, UC Davis Law School
Rogelio Lasso, John Marshall Law School
Ian F. Haney López, University of California, Berkeley
Maria Pabon Lopez, Loyola New Orleans College of Law
Antoinette Sedillo Lopez , University of New Mexico Law School
Guadalupe T. Luna, Northern Illinois University
Anita Ortiz Maddali, Northern Illinois Univ. College of Law
Pedro A. Malavet, The University of Florida
Solangel Maldonado, Seton Hall Law School
Leo P. Martinez, University of California, Hastings College of the Law
M. Isabel Medina, Loyola University New Orleans
Miguel A. Méndez, UC Davis School of Law
Margaret E. Montoya, Univ New Mexico School of Law
Elena Marty-Nelson, NSU Law Center
Ana M. Novoa, St Mary’s University School of Law.
Michael A. Olivas, University of Houston Law Center
Maria L. Ontiveros, University of San Francisco
Laura M. Padilla, California Western School of Law
Juan Perea, Loyola Univ. Chicago School of Law
Victoria Plaut, Berkeley Law
Jorge A. Ramírez, Texas Tech University
Steven A. Ramirez, Loyola University Chicago School of Law
Maritza Reyes, Florida A&M University College of Law
Ediberto Roman, Florida International School of Law
Tom I. Romero, II, University of Denver Sturm College of Law
Jasmine Gonzales Rose, University of Pittsburgh School of Law
Miguel Schor, Drake Law School
Joe Thome, Univ. of Wisconsin Law School
Arturo Torres, Texas Tech University School of Law
Gerald Torres, UT Austin Law School
Berta Hernandez Truyol, University of Florida School of Law
Anthony E. Varona, American University Washington College of Law
Yolanda Vázquez, University of Cincinnati College of Law
Gloria Valencia-Weber, University of New Mexico School of Law