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