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Thursday, May 31, 2012

Is Diversity for White People?

The recent cert grant in Fisher v. University of Texas has led to a great deal of speculation about the future of affirmative action. After Grutter v. University of Michigan, the diversity rationale remains the central hope of those who wish to maintain affirmative action in educational institutions.  In previous posts and my recent scholarship, I have discussed the way that the diversity rationale -- and diversity thinking more generally -- leads to the commodification of non-whiteness.  Driven by our intense social and legal preoccupation with diversity, society has come to view non-white racial identity as a commodity to be pursued, captured, possessed and used.

The commodification of racial identity that follows from the diversity rationale highlights the profound difference between the diversity and remedial rationales for affirmative action.  At first blush, the rationale might not seem to matter a great deal in practice.  Whether the Court ultimately adopted the diversity rationale sanctioned by Justice Powell's concurrence in Bakke, or whether it explicitly adopted a remedial rationale, the result on the ground would be similar:  an applicant's identification as a racial minority would be taken into account as a positive factor in a holistic evaluation of the applicant.  Yet when we look more closely, the rationales reveal dramatically different mindsets, with dramatically different social consequences.

The diversity rationale is premised on the notion that it benefits white people, not just people of color.  White people can benefit from racial diversity; moreover, white people can, themselves, be diverse.  Diversity is more palatable because (some) white people can convince themselves that it's good for everyone -- white and non-white alike. Moreover, anyone can contribute to diversity. People from North Dakota contribute to diversity. So do bassoon players. And, sure, so do people directly descended from black slaves.  Interestingly, some research suggests that classroom diversity may primarily benefit white people. The social science evidence on this subject is too voluminous and complex to summarize in a blog post: some has found that classroom diversity benefits everyone; other research has found no benefits and even some negative consequences. Still, it's worth noting that one expert report on which the University of Michigan relied particularly heavily in litigation found that the impact of diversity on learning outcomes "is especially impressive for white students." But -- although the report understandably doesn't emphasize this fact -- the underlying research found no positive impacts and even some modest negative impacts from classroom diversity on African American students' learning outcomes. I don't want to make too much of the results of this particular study, because it's just one study, and because it also suffers from various issues that others have catalogued. But it's telling that the study on which the University of Michigan relied most heavily in litigation showcases the "impressive" benefits for white students from classroom diversity while glossing over evidence that students of color may benefit far less -- or not at all -- from the proffered rationale.

By contrast, the remedial rationale for affirmative action doesn't rely on the purported benefit of diversity to white people.  It suggests that affirmative action is an appropriate policy because of harms perpetrated against certain racial groups in the past -- harms whose consequences linger today.  Under the remedial rationale, the point of affirmative action is to rectify past racial injustice by increasing the number of underrepresented minorities in colleges and universities.  It suggests that affirmative action is sound policy regardless of whether it benefits white people or not.  While the diversity rationale is ahistorical, the remedial rationale acknowledges history.  It forces us to confront the empirical evidence that past wrongs continue to engender systemic disadvantage.  It forces us to acknowledge the realities of longstanding and ongoing racial prejudice, both overt and subconscious.  Perhaps most importantly, the vitality of the remedial rationale doesn't depend on the value of diversity to white people.  If it were shown that racial diversity was of no benefit to white people -- indeed, even if it were shown that some white people had worse educational outcomes as a result -- the remedial rationale would still require affirmative action as a matter of corrective justice.  Under the remedial rationale, racial minorities' access to elite institutions of higher education is mandated by fundamental fairness, not merely conditioned on its purported benefit to white people.

So the choice of rationale for affirmative action may not have much effect on actual admissions outcomes -- on whether an individual candidate is or isn't admitted to a particular school.  But that choice has profound consequences for the way we think about the affirmative action and for the shape of our national conversation about racial remedies.  Some -- notably the late Professor Derrick Bell -- have argued that the diversity rationale distracts us from the most compelling reasons for affirmative action.  The remedial rationale embraces a way of thinking that strives to acknowledge and rectify past wrongs, while the diversity rationale embraces a way of thinking in which such wrongs are eclipsed by the recitation of advantages associated with diversity.  And this embrace of diversity results in a subtle but profound shift in our discourse about race.

I continue to support affirmative action, and I do think that racial diversity makes a difference in the classroom. Having taught now at three different schools (American, William & Mary, and now Denver) it's abundantly clear to me that racial diversity improves classroom discourse. For example, I teach criminal procedure, and there's simply no comparison between the richness of a discussion of racial profiling that takes place in a racially diverse class and one that takes place an all-white class. As with everything in life, having a range of perspectives and past experiences enriches discussion, and people of color -- particularly young men -- tend, in the aggregate, to have had a different range of experiences with law enforcement officers than their white counterparts.

But I remain troubled by the idea that race-based affirmative action must be constitutionally justified on the basis of its value to white people. The diversity rationale conditions affirmative action policies on whether white people also derive benefits from those policies -- and if the Court decides that diversity really isn't all that beneficial to white people, then the rationale supplies no alternative justification for affirmative action.

Posted by Nancy Leong on May 31, 2012 at 10:04 AM in Constitutional thoughts | Permalink


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@"Jimbino": Allow me to refer you to my previous post on principles for productive conversations about race, in particular principle #4:

Now, notice the way you've presented your argument here. You've offered a single anecdote -- one involving yourself -- and then from that one anecdote drawn the conclusion that an policy affecting millions of Americans is "a crock." This simply isn't an intellectually rigorous form of engaging in a policy debate. I appreciate very much, however, your willingness to provide me with an example of how *not* to make a compelling argument, which I will gladly incorporate into my future classes for the benefit of my students.

If you can muster the courage to shed your protective veil of pseudonymity, I'd be more than happy to offer you suggestions for reading that might improve your understanding of the facts surrounding the affirmative action debate as it pertains to people besides you. As an educator who takes my role quite seriously, I'd also be more than happy to offer suggestions for improving the quality of your argumentation. I can be reached at [email protected].

Posted by: Nancy Leong | Jun 2, 2012 11:11:41 AM

Thanks to those who offered thoughtful comments.

@Larry: The reason I find the remedial rationale far less problematic is that it attempts to rectify disadvantage to people of color deliberately and systemically created over hundreds of years. I'm not only talking about slavery, but also about economic disparities that were consciously created along racial lines as the result of New Deal policies that remained in place for almost fifty years, or the disparate administration of the GI Bill, which actually served to reinforce Jim Crow and widen existing racial disparities. Given the breadth and duration of these policies, it seems an overstatement to say that race is a "wildly inaccurate proxy" for identifying those "in need of a remedy."

I also read you to be objecting to the remedial rationale partly on the ground that it's overinclusive -- that is, it might benefit people of color who are already relatively advantaged.

Here are two initial thoughts in response. First, nothing in the remedial rationale inherently requires that race serve as the *only* "proxy" for disadvantage. Race can be used as one of several factors, including class. So, to be clear, I think that socioeconomically disadvantaged white individuals should also benefit from affirmative action. In my own experience on admissions committees, I think that at many -- perhaps even most -- schools such applicants do benefit from affirmative action. I agree with you that there may be some difficulty in determining which applicants are eligible, but this is an argument for reading personal statements carefully and perhaps even implementing interviews. That something is difficult doesn't mean we shouldn't do it.

Second, I disagree with the premise that simply because a person of color is financially well-off that person hasn't experienced disadvantage in their lives. The social and cognitive literature examining implicit bias and discrimination is voluminous -- people commonly cite the field study finding that resumes sent out under white-identified names like "Emily" or "Greg" receive significantly more responses than those sent out under black-identified names like "Lakisha" or "Jamal," as well as the paired-audit used car sales study led by Ian Ayres that found that white men receive better prices than both women and blacks. These are only two examples, but there are literally thousands of others, and in my view the most parsimonious explanation is that members of some racial groups are treated worse than others. So simply because a black person and a white person start with the same amount of economic advantages doesn't mean that those two people have experienced similar obstacles and similar social disadvantage during the course of their lives. Empirical research shows that people of color, in the aggregate, are treated differently and worse.

Posted by: Nancy Leong | Jun 2, 2012 11:06:59 AM

Yeah, and welfare is a crock since a few people game the system. Our criminal justice system is a crock since people game the system. Any system that is perfect, that can't be gamed in some way, let me know.

Posted by: Joe | Jun 1, 2012 10:14:48 PM

Larry Rosenthal is so right.

I, a blue-eyed, fair-skinned Irish/English American born with an educational silver-spoon, was granted the only Hispanic scholarship for my class at UT Austin Law School, solely by virtue of my having been born in Paraguay.

I was already a National Merit Scholar, Summa cum Lauda Valedictorian of my college class, already in possession of an MS in Physics from the University of Chicago. Law school at UT Austin then was virtually free--it cost less than $2000 for three years' tuition and fees. I didn't need the scholarship, but, like those who get income tax exemptions and deductions regardless of income or wealth, merely by virtue of their marital or parental status, I felt entitled to suck at the gummint tit, knowing that my morals would require me to reveal the fact of my White, rich-kid benefit gained at the expense of less fortunate taxpayers. That's what I'm doing here!

AA is a crock.

Posted by: Jimbino | Jun 1, 2012 4:44:32 PM

I also think any solution in this process is not going to be free from any risks so some attempt to game the system is going to be there regardless. It is sometimes flagged to say the solutions are themselves a problem but the flags seem usually to be selectively thrown.

Posted by: Joe | May 31, 2012 1:21:39 PM

The diversity rationale is part of the reason for AA and it helps everyone. Thurgood Marshall spoke of white and black children while addressing the Court in Brown and Cooper v. A. and it's important to realize that we are not (though it by itself is valuable) just helping "them." The public as a whole appreciate general benefits, even when specific ones are quite appropriate. This is also seen in the context of health care and SS benefits.

Posted by: Joe | May 31, 2012 1:20:19 PM

Professor Leong:

I find your arguments about the problematic nature of the diversity rationale for race-based admissions persuasive, but I am puzzled about why you seem to find the remedial rationale less problematic. Race, of course, is a wildly inaccurate proxy for identifying those in need of a remedy for the continuing effects of prior discrimination. For example, as the President likes to observe, race-based admissions can advantage wealthy students who have faced little discrimination in their lives, such as his daughters. Also, since these preferences are generally used for students who have done well enough in school that are thought capable of succeeding in higher education (as in the Fisher case), they benefit a class who are far less likely to be experiencing the continuing effects of prior discrimination as compared to, for example, impoverished children from high-crime, disadvantaged schools who have done poorly in school, or even dropped out, and who have no hope of being admitted to the University of Texas. Isn't using race as a proxy for identifying those most in need of a remedy for prior discrimination itself problematic? Indeed, given the many complexities in understanding the life course of any individual, is there even reason to believe that university admissions officials are capable of identifying students who are experiencing the continuing effects of prior discrimination?

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | May 31, 2012 12:00:25 PM

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