AuthorSterling, Robin Walker

This Article is the first to describe how systemic racism persists in a society that openly denounces racism and racist behaviors, using affirmative action and disproportionate minority contact as contrasting examples. Affirmative action and disproportionate minority contact are two sides of the same coin. Far from being distinct, these two social institutions function as two sides of the same ideology, sharing a common historical nucleus rooted in the mythologies that sustained chattel slavery in the United States. The effects of these narratives continue to operate in race-related jurisprudence and in the criminal legal system, sending normative messages about race and potential using the same jurisprudential trick: denial of our country's race-bound legacy. By juxtaposing the rhetoric and jurisprudence concerning the underrepresentation of white people in the criminal legal system with the rhetoric and jurisprudence concerning the underrepresentation of Black people in higher education, this Article illuminates a key feature of how systemic racism persists.

Obscuring the history of how both affirmative action and disproportionate minority contact came to be, the racially contorted narratives that we have adopted about affirmative action in both guises described here--affirmative action that benefits people of color by accepting them into institutions of higher learning and that which benefits white people by diverting them from the criminal legal system--allow systems to thrive under a guise of presumed racial innocence. Unmoored from the force of history, we rudderlessly reinforce well-worn social norms, no matter how discriminatory they might be.

Table of Contents INTRODUCTION I. THE PARALLEL ORIGINS, HISTORIES, AND CONSEQUENCES OF RACE-CONSCIOUS ADMISSIONS AND DISPROPORTIONATE MINORITY CONTACT A. Slave Rebellions, Fear, and the Birth of Stereotypes 1. The Myth of Black Intellectual Inferiority 2. The Myth of Black Dangerousness 3. The Myths Take Hold B. The Birth of Affirmative Action: Affirmative Action and De Jure Segregation C. Affirmative Action and De Facto Segregation D. A Brief History of Disproportionate Minority Contact 1. 1972: The Boom Begins 2. Superpredators, Mandatory Minimums, and the War on Drugs 3. Hyperincarceration II. RACE AS A FACTOR IN RACE-CONSCIOUS ADMISSIONS AND IN DISPROPORTIONATE MINORITY CONTACT A. Race as a Factor in Admissions 1. The Relegation of the Remedial Rationale 2. The Diversity Rationale Prevails 3. The Effects of Elevating the Diversity Rationale B. Race as a Factor in Disproportionate Minority Contact III. INNOCENCE AND GUILT IN THE MIRROR A. Innocence in Race-Conscious Admissions B. Innocence in the Criminal Legal System CONCLUSION INTRODUCTION

Law enforcement's underwhelming response to the breach of the United States Capitol on January 6,2021, starkly contrasts with the heavy-handed reaction to Black Lives Matter protests in the summer of 2020. (1) January 6 marked the first time the Capitol had been breached since 1814, when British troops set fire to the building while it was still under construction. (2) Several hundred Trump supporters scaled the Capitol's walls, broke windows and doors, and used battering rams to gain entry to the building while congresspeople were certifying the electoral college results of the November 2020 presidential election. Many protestors wore bullet proof vests, armor, and riot gear. (3) Protestors were armed with zip ties, flag poles, and bear spray. (4) In addition to the weapons used at the Capitol, pipe bombs were later found at the headquarters of the Republican and Democratic National Committees just blocks away. (5) The rioters quickly overwhelmed police officers to gain entry. Once the building was breached, congresspeople were evacuated or hidden for their own safety. Staff members blockaded themselves in offices with furniture and hid under tables. A noose had been erected outside; the rioters chanted "Hang Mike Pence," (6) "Fuck the Blue," (7) and called for House Speaker Nancy Pelosi (8) as they moved through the building. The police union would later report that 140 officers were injured, many of them seriously. (9) Two responding Capitol Police officers died by suicide after the attack. (10)

This attack was not a surprise. In the days leading up to the insurrection, Parler and other social media platforms were "seething with references to potential violence," plainly revealing the rioters' intent. (11) Pronouncements of violence were so widespread that FBI intelligence privately warned of the coming insurrection. (12) The first barriers were breached between 12:53 p.m. and 1:03 p.m. (13) The sergeant-at-arms would not deem the building secured until after 5:00 p.m., a full four hours later. (14)

In stark contrast, the police response to the preceding summer's overwhelmingly peaceful Black Lives Matters demonstrations (15) was so violent that police conduct seemed to reaffirm the need for protest. (16) Examples of police violence abound, many of them recorded. On May 30, an NYPD officer approached an African American protestor who was wearing a mask over his nose and mouth as a COVID precaution. (17) The civilian had his hands up. The officer walked up to the man and pulled down his mask to better pepper spray him. (18) On that same day, Atlanta police broke the windows of the car of two college students, tased one of them, then dragged them out of the car through the broken windows. (19) The students were on their way home from buying food after the city's 9 p.m. curfew and got caught in traffic caused by a protest against police violence. (20) On June 4 in Buffalo, New York, an officer pushed a seventy-five-year-old man while "another extended] his baton toward him with both hands." (21) The elderly protester fell to the ground. As the elderly protester was lying motionless, blood flowing from his right ear, officers walked past without rendering aid. (22) Perhaps the most infamous example of law enforcement's overreaction to Black Lives Matter protests (23) was the June 1 incident in which a phalanx of law enforcement officers removed a diverse group of peaceful protesters from Lafayette Square, near the White House, with chemical agents and rubber bullets. (24)

Of all the possible reasons for the difference in law enforcement's response, the most obvious is also the most popular. The sea of faces the police would have seen when they looked out into the crowds looked very different in the two situations. While the pro-Trump protestors were predominantly white, a more diverse group protested police violence for Black Lives Matter. (25) While the BLM protests were meant to express explicit support for the worth of Black life, the Capitol insurrection expressed explicit support for a candidate who was endorsed by many far-right, white supremacist groups, (26) who won every white demographic, (27) and who lost every demographic of every other racial or ethnic group decisively. (28) And while the BLM protests were overwhelmingly peaceful, (29) Trump supporters came to the Capitol armed. (30) But while police officers met the BLM protesters with tear gas and rubber bullets, officers took selfies with the pro-Trump protesters and helped them down the stairs of the Capitol. (31) The protests share an inverted relationship, as if reflected in a funhouse mirror. This distorted relationship is also reflected in the way race and underrepresentation are treated in our societal institutions.

Consider the following example. In March 2018, days after the mass shooting that killed seventeen people and injured seventeen others at Marjory Stoneman Douglas High School, (32) high school students across the country mobilized to participate in a series of nationwide protests urging gun reform. (33) Many principals, spurred in part by the march's being scheduled for a school day, reacted by sending out notices threatening students who participated in the demonstrations with suspensions and other disciplinary action. (34) In response, Yale, MIT, Boston University, the University of Virginia, Dartmouth, Amherst, Brown, Smith, and dozens of other prominent colleges and universities posted tweets reassuring students that school discipline resulting from participation in antigun protests would not jeopardize their chances of admission. (35) A sample tweet from Brandeis read, "Brandeis supports students' right to stand up for their beliefs. Those who participate in peaceful protests will not jeopardize their admission to Brandeis. Speak up, speak out." (36) Attendees of these protests were predominantly white. (37) No arrests of the thousands of protesters who gathered were reported. (38) At least one of the organizers, a white teenager named David Hogg, went on to matriculate at Harvard, (39) one of the prestigious colleges that had promised amnesty for participants.

In the aftermath of Derek Chauvin's murder of George Floyd in May 2020, protesters marched in cities all across the United States. (40) Floyd's killing sparked peaceful protests, riots, and looting. (41) The country has seen similar community reactions in the wake of the deaths of Michael Brown, Tamir Rice, Freddie Gray, Stephon Clark, and other unarmed Black men, women, and children at the hands of police--a mix of peaceful vigils and protests, sometimes accompanied by scattered destruction of property and looting.

Coming on the heels of the deaths of Ahmaud Arbery and Breonna Taylor, Floyd's death led to a dramatic increase in white participation in protests against police brutality. (42) Before George Floyd's killing, participants in police-brutality protests were predominantly nonwhite. (43) Schools generally did not issue reassurances to any teenaged protesters who might have participated in these actions. They did not validate the choice of a student who might have taken part to "speak up" or "speak out."

This story, of the predominantly white groups who...

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