Wednesday, November 22, 2017

Deirdre M. Bowen


Deirdre M. Bowen, American Skin: Dispensing with Colorblindness and Critical Mass in Affirmative Action, 73 University of Pittsburgh Law Review 339 (Winter 2011) (204 Footnotes)


ABSTRACT
 

“The desire for a racially diverse community, particularly a diverse school community, is, like the desire for romance, attractive to consider in the abstract. . . . [However,] [r] eality is the enemy of romance.”
 

Numerous schools tout diversity in their glossy lookbooks, websites, and admissions packets, but further examination of the materials, the actual percentage of minorities in the campus population, or both, reveals little as to why the school prioritizes a diverse student body.

The new affirmative action paradigm focuses on the benefits of diversity for all students, unlike in the past where the short-lived focus was on redressing past discrimination. The Court held in Grutter v. Bollinger that the University of Michigan Law School had a compelling state interest in preparing its students for an increasingly diverse work force and society by promoting cross-racial understanding and breaking down racial stereotypes. However, both proponents and opponents of affirmative action viewed with skepticism the Court's adoption of the affirmative action diversity paradigm. Opponents and supporters of diversity articulated dire predictions about what student diversity via affirmative action would offer. Opponents asserted that diversity affirmative action would ultimately take the form of thinly disguised quotas, and supporters worried about tokenism. The question remains, though, how a “diverse student body” rationale benefits or harms students who are the diversity-i.e., students of color. I seek to empirically answer that question in this article.

My research presents the first examination of the post-Grutter cohorts' perceptions of the benefits of diversity. I hope to provide insight into how students of color-a group for whom both opponents and proponents profess concern in the affirmative action debate-fare under the Grutter Court's race-neutral model of diversity. My goal is to factually interrogate some of the predictions that opponents and proponents made in the wake of the diversity model of affirmative action.

This study adds insight to the debate about the appropriateness of diversity and, specifically, critical mass as rationales for maintaining affirmative action. It has been eight years since the Supreme Court issued its twin decisions of Grutter and Gratz, and six years since institutions of higher learning adjusted their admissions plans to comport with the new “forward looking” diversity model of affirmative action-long enough for a university's transformed student body to reflect on the alleged harms and benefits of diversity. Using empirical data collected in November 2009 from a national sample of 372 under-represented minority undergraduate students majoring in the sciences, this article offers a first look at how affirmative action as a diversity model operates for the population of students defined as diverse.

Moreover, it seeks to answer Justice O'Connor's recent call for more research. The paper examines two questions. First, has affirmative action achieved the benefits set out in Grutter of increased cross-racial understanding and decreased racial stereotyping? In short, the majority of under-represented students of color do report increased racial understanding in a diverse classroom. However, increased racial understanding does not necessarily translate into achieving Grutter's second goal of decreased racial stereotyping. Less than a third of minority students present in a diverse classroom report a decrease in the stigma associated with eradicating racial stereotyping.

The second component of this first question asks whether these benefits, however incremental, differ when affirmative action is added to the equation of a diverse classroom. Students who report both a decrease in stigma associated with racial stereotyping and an increase in racial understanding do not differ in their responses based on whether they attend an affirmative action institution.

At first glance, these results suggest the failure of affirmative action. But a more nuanced look at the data is required. This question focuses solely on a diverse classroom. Remember, students of color, regardless of where they attend school, are more likely to find themselves in a diverse classroom. In fact, under-represented students of color have, for most of their educational careers, been in classrooms that consistently provide the opportunity to improve their own racial understanding. However, Grutter rationalized affirmative action as providing race neutral benefits. The concern, then, may be that diverse settings alone do not guarantee that white students in the class will increase their cross-racial understanding and decrease racial stereotyping of minority students. That is why the linchpin of affirmative action was its ability to go beyond diversity and fashion critical mass.

Hence, the second question gets to the central theme of this study. How does critical mass affect minority students' perceptions of the Grutter benefits, and how does affirmative action play a role in their realization? Because students in affirmative action states were more likely to report decreased stigma from racial stereotyping and an increase in racial understanding than students in anti- affirmative action states, the data suggest an important caveat. Diverse classrooms actually require meaningful critical mass, and affirmative action may facilitate the latter. After all, as the Michigan Law School argued in Grutter, a key ingredient of affirmative action's effectiveness is critical mass.

Thus, it might be possible that students in affirmative action institutions are experiencing decreased stigma at greater rates than their counterparts in anti-affirmative action institutions because the affirmative action institutions' student bodies possess more than diversity. They may craft critical mass diversity. “Critical mass diversity” refers to a concentration of students of a particular ethnic or racial background in the classroom such that others are able to see the variety of experiences and viewpoints that students in that racial or ethnic group hold. In addition, critical mass offers students in that racial group an opportunity to get beyond tokenism and no longer sense their presence in the classroom as the spokesperson for their race or ethnicity.

A quick reading of these particular results may inspire a cause for celebration. Again, restraint is urged in favor of nuance. It is not affirmative action alone that creates the benefits. It is a specific type of classroom diversity, i.e., meaningful critical mass that could encourage the Grutter benefits. To state it plainly, affirmative action simply creates the opportunity for meaningful critical mass to occur in the classroom. However, embedded in the concept of critical mass is the idea that it initiates functional diversity.

Critical mass may well set the stage for functional diversity, but I conclude in this study that institutional over-reliance on it may actually stymie the emergence of affirmative action benefits. Add the discourse of colorblindness to the setting, and the benefits are probably significantly thwarted. My pessimism comes from the fact that only about one-third of minority students actualized these benefits in the critical mass classroom of affirmative action institutions. In anti-affirmative action states, the derisory rate was one-fifth.

Hence, I am compelled to argue that institutions of higher learning should let the concept of critical mass dissipate and reignite color consciousness.

The results of the study invite controversy. A quick read of the results can lead to a conclusion that affirmative action makes no difference for the majority of students of color in terms of achieving Grutter benefits. While the anti-affirmative action camp may embrace this shortsighted inference in support of its notion that diversity is, at best, window dressing and, at worst, a vaguely disguised quota system in violation of the Equal Protection Clause, such a claim ignores what could be possible with affirmative action.

On the other hand, supporters of affirmative action must also examine the limits of critical mass diversity as a concept. We must demand institutions of higher learning to do more to bring into fruition the benefits of diversity for all students. The cautionary tale in this study is that the diversity model of affirmative action is still a work in progress. In reaching critical mass, affirmative action can play an essential role in setting the stage to transform the mindset of diversity consumers. However, a cultural shift away from post-race and critical mass dependence will give rise to functional diversity: to create a kind of racial understanding that eliminates stigma caused by racial stereotyping.

Part II of this article briefly explores the legal and social-scientific definitions, criticisms, and benefits of the diversity paradigm. Part III explains the methodology employed to conduct this study. Part IV examines the results. This section is organized into four components. First, it presents the entire sample's perceptions of encountering the Grutter benefits while learning in a diverse environment. The second section then explores this question more deeply by comparing the perceptions of students who attended affirmative action institutions with those of students who attended anti-affirmative action institutions. In section three, I return to the results of the entire sample but examine the crucial question of how critical mass in the classroom affects the emergence of the Grutter benefits. Finally, the last section addresses the fundamental question by interrogating how critical mass intersects with the type of institution a student attends. Are affirmative action students in critical mass classrooms the most likely to report the incidence of increased racial understanding and decreased racial stereotyping?

Part V discusses the implications of these results. I specifically argue that the diversity model of affirmative action is a work in progress. It is not yet meaningful for a majority of students of color. I argue that affirmative action allows for the possibility of critical mass. However, critical mass only sets the stage for the essential part of the challenge. In the end, the concept of critical mass may be irrelevant. A far more imperative goal is for institutions of higher learning to annihilate the paradox of manufacturing diverse classrooms while operating in a mythical colorblind society. I conclude that without moving beyond critical mass towards color consciousness, the Grutter goals of diversity are rendered dysfunctional. Finally, I offer recommendations for the future of diversity in higher education. I suggest what I call a “Contextualized Social Contingencies” model, in which we use a vibrant model of affirmative action to explore color consciousness and then learn from it to achieve Grutter's benefits. Part VI concludes.

* * *

“[A] school's self-portrayal as [an] institution committed to racial justice amounts to little more than ‘an opportunity of self-important romance’ reminiscent of a ‘late-night fit of drunken sentimentality.”’

Affirmative action provides a potentially powerful tool to do right by students of color-to build functional diversity. To do racial justice. In the end, colleges and universities must recognize that attributes of “diversity” do not operate in a vacuum. Institutions of higher learning would do well to consider why critical mass falls short for so many students of color. Instead, adopting a color-conscious approach that recognizes social identities and equips students and faculty with the skills to interact in a beneficial way for all will lead to a more honest form of affirmative action for students of all skin colors.


. Deirdre M. Bowen is an associate professor of lawyering skills at Seattle University. This article was supported in part by Grant No. U54 DE019346 from the National Institute of Dental and Craniofacial Research, NIH.

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