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Monday, February 18, 2008

Excluding "Whites" From Review Sessions

Richard Delgado's "Ask Mom" series on Blackprof is regularly fascinating and provocative, if I may sum up my reactions to it in a neutral and non-specific way.  Today's post is no exception.  "Mom" answers a question from a "reader" who writes to ask whether it is permissible for her to hold support sessions for students with grade-point averages of B or lower.  The "reader" began holding these sessions because she noticed that many of her lower-scoring students were black or Latino.  Some white students have complained that the sessions should be opened to all students no matter their grade-point average, and have suggested that the policy is covertly aimed at students of color alone.  "Mom" advises his "correspondent" to stick to her guns.

The fun in reading Delgado's Ask Mom series is in thinking about which aspects of his answers you agree with, which you disagree with, and so on, so I won't impose my own conclusions on you; decide for yourselves.  Two observations, though.  First, there is of course nothing wrong with aiming review sessions at students, of whatever color, who are having more trouble in class than their colleagues.  I agree fully with "Mom" that the "teacher" has "no obligation to offer additional sessions for A-minus students wishing to earn an A-plus."  But "Ask Mom" gives his own post the title "Should I exclude whites from my review sessions?"  So is the point that this "teacher" really wants to exclude whites from her reviews?  That her use of grades as a limit really is an imperfect but deliberate proxy for race?

The other observation is that the entire spectrum of Delgado's vision can apparently be summed up as follows: "white," "black," and "Latino."  That's it.  Missing from these categories are, among other things, "Asian," "American Indian," "Persian," "Arab," and so on.  Not to mention the very reason I've put quotes around all these words: also missing are "biracial," "complex mix," and "none of the above."  (Not to mention, as always, "disabled," although I acknowledge that's a different kind of category.)  At Southwestern Law School in Los Angeles, the last law school I taught at full-time, Delgado's categories wouldn't have come within miles of describing the profound and exciting racial, ethnic, and socio-economic diversity of the student body.  It's an extraordinary place, and I would hate to think anyone would attempt to describe it with only three words.  He ought to pay it a visit sometime.

Posted by Paul Horwitz on February 18, 2008 at 09:59 AM in Life of Law Schools | Permalink


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No, I didn't forget Arlington Heights. I simply displayed my lack of familiarity with the subject in the intervening years.

Under that test, I assume the law is upheld if there is a compelling state interest. I still think there is one.

Posted by: Jeff Lipshaw | Feb 21, 2008 11:39:33 AM

Jeff, you are mostly correct but you have apparently forgotten the case of Arlington Heights. Facially neutral laws don't get an automatic pass because if that was the case then it would be absurdly easy for legislatures to pass discriminatory laws by claiming that they were about economics or whatever and not race. Hell, by definition facially neutral laws don't mention race but that's not the end of analysis.

It's true that facially neutral laws are usually examined under rational basis but if there is disparate impact on a suspect class and the plaintiff can give evidence suggesting that there was a discriminatory intent behind the law at issue then the standard is strict scrutiny unless the government can show they would have made the same decision anyway without the bad motive.

At least that's what I learned last semester in con law but please correct me if I erred somewhere.

Posted by: Vincent | Feb 20, 2008 10:08:45 PM

Following your reasoning, states could legislate that only those with cars valued over $30,000 can use the HOV lanes? They want to keep minorities out so they create a facially neutral rule with a racially discriminatory effect. It's a fundamental right not to be discriminated against based on race - that's where the whole analysis begins.

Posted by: Jill | Feb 19, 2008 10:34:30 AM

Jill, it's been a while since I did con law, but my intuition tells me that voting is a fundamental right, and any restriction is subject to strict scrutiny. Hence, a court is entitled to dig into racial effect and motivation. On the other hand, facially neutral laws (say like tax brackets or health codes or noise restrictions or after-class aid to sub-par students) not involving a fundamental right or a suspect classification are only tested for rational basis.

Assuming that the standard applies to the professor here, it seems to me that "extra help for sub-B" students invokes neither a fundamental right nor a suspect classification, and hence we only look to whether it is rational.

Under your argument, we could be litigating whether HOV lanes are racially discriminatory because they create de facto racism if somehow minorities (say because they don't own cars) can't use them. As I understand it, we never get to that question or the question of bad intent, because it's socio-economic legislation not involving a fundamental right or a suspect classification.

Posted by: Jeff Lipshaw | Feb 19, 2008 9:53:48 AM

Ah Jeff, but you miss the problem. You can't have a wholly "non-suspect" classification that creates de facto racism and/or is based on an intent to advantage one race. For instance, the old law you could vote if you could either 1) read/pass a test or 2) your grandfather was registered to vote was facially neutral. Facially neutral policies don't hold up when they are motivated by racial discrimination.

Posted by: Jill | Feb 19, 2008 8:41:32 AM

The post seems like a pretty strong indictment of affirmative action and a pretty strong endorsement of anonymous grading.

Also, there's nothing wrong in principle with what the prof wants to do, but it sounds like she's somehow managed to annoy absolutely everyone in the way she's carried it out.

Posted by: 2005 | Feb 19, 2008 7:58:51 AM

Let's not let this interesting discussion go without mentioning Harvard Law School's "Saturday School" program (at least, circa 1990). HLS had extra-help sessions for minority law students on Saturday morning, to which whites were excluded ON RACIAL GROUNDS. At exam time, special exam prep sessions were held, again only for minority students. So while you are debating the interesting Delgado hypo, please know that HLS was doing something much more pernicious. Probably still is.

Posted by: Abadaba | Feb 18, 2008 10:04:57 PM

Links from Above the Law always bring up our readership. Welcome, all! Chris, while I think there are legitimate reasons to disagree with the "teacher's" approach, I must respectfully disagree with at least a couple of the arguments you offer.

First, I don't think the teacher is making herself unavailable to her students, except in the zero-sum sense that she is available for two or three fewer hours per week while she provides the review session -- although note that by conducting a review for a number of under-performing students at the same time, she may actually expand the number of hours she has available for consultation with other students! If I have a standing offer to conduct a review session for students who demonstrably appear to need extra help, that does not mean I don't continue to maintain office hours for anyone who wants to show up (including top performers), to hang around after class, and so on. So I don't think she is in any way "breaching her contract"; to the contrary, I think it is entirely appropriate for a teacher to devote extra time and resources to those who appear to be most in need of it. You and I also have a difference of opinion as to whether law schools would benefit from adopting a more consumerist approach to legal education, I think; I am fairly certain that law *students* often don't benefit from such an attitude. We've kicked that issue around quite a bit on Prawfs and I'll leave it alone for now. (By the way, none of this is meant to suggest that law schools shouldn't be trying much harder to be responsive to their students across a broad range of areas, including but not limited to career services and routine administrative issues. They [we] should.)

Second, while law schools generally do judge "merit" anonymously, anonymous grading, I believe, came well after law schools had settled into the business of teaching and examining large numbers of students en masse, a la Langdell. Anonymous grading is a common approach in most universities today, for a variety of reasons, but I don't think the anonymity is either particular to or essential to law school grading, although certainly one has every right to expect fairness and impartiality. Also, lots of law school grades are awarded non-anonymously: participation marks, clinic grades (if any), seminar papers, etc.

Posted by: Paul Horwitz | Feb 18, 2008 9:37:38 PM

Well, I have a number of concerns.
- The (white) professor has now made public that she associates (certain kinds of) minority students with poor performance and believes that they require extra help to get even average grades. As the black students in her course have apparently made clear to her, they do not consider her patronism helpful. They've stopped attending the sessions because of it. The demoralization likely to come from their teacher's racism may even lead them to perform poorly on the exam.
- Many people genuinely confused by her course's complex subject matter may be excluded from her review sessions simply because they did well in other, perhaps easier, courses in the past. If they are seriously struggling, why should they be excluded?
- Through their tuition dollars, the students are paying substantial sums to the professor so that they will be taught. It is really a breach of her contract to intentionally make herself unavailable to some of these paying customers. I really think schools would benefit from more of a customer service mentality toward students, which is obviously lacking here.
- Law school grading is intentionally designed to anonymously judge merit. The reason for curves, anonymous grading, and other strict controls on the law school experience is to standardize student grades. Her effort undercuts that.

As should be obvious, of the four concerns I mention here, only one has to do with race. As the three other arguments make clear, I think it would be wrong for her to target review sessions to students with lower grades even if race weren't a factor.

The one objection I have about race isn't an objection on principle, but rather about reality: Her racially-motivated pedagogy seems to hurt, offend, and alienate the very students she believes are inferior and in need of special assistance. I think that makes the case against her strategy all the more compelling.

Posted by: Chris | Feb 18, 2008 9:14:48 PM

Nor do white students have a legitimate gripe. She doesn’t exclude them—they simply don’t fall (most of them, at any rate) within the range she has declared eligible for the sessions.

That's what many of us have been saying about "disparate impact" arguments all along!

Posted by: Mike | Feb 18, 2008 9:14:32 PM

Other than the title of Prof. Delgado's post, it all seems perfectly reasonable to me, but it took reading the full post to get there because of the tinge of the title. The classification is made on a wholly non-suspect basis. There is no suggestion that a white student with a sub-B average would be excluded. The classification avoids any association between race or ethnicity and performance, and simply puts aside the sociological issues surrounding why those students are tending to be of particular minority groups.

If a professor were excluding students on race or ethnicity that would be one thing, but the idea that this is an objectionable surrogate for race-based discrimination? C'mon. Try this hypothetical. Suppose her secret motivation, wholly unexpressed and not apparent from any action, was to provide remedial training to minorities because she believed them to be genetically inferior and incapable of success without the help. But all she does in fact is to offer review sessions to sub-B students. Is that inference as objectionable to included minorities as the "exclude whites" inference is to the majority? I suspect it would be, but neither has anything to do with what's actually happening!

I suspect I don't agree with Prof. Delgado on much, but on this one, the professor absolutely should stick to her guns.

Posted by: Jeff Lipshaw | Feb 18, 2008 1:24:07 PM

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