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Excerpted From: Angela Onwuachi-Willig, Emily Houh, and Mary Campbell, Cracking the Egg: Which Came First--Stigma or Affirmative Action?, 96 California Law Review 1299 (October 2008) (135 Footnotes) (Full Document)


OnwuachiWilligHouhCampbellFor nearly thirty years, the American public has debated the merits of race-based affirmative action in higher education. From Allan Bakke's challenge to the admissions program at the University of California, Davis School of Medicine, to the current legislative challenges in states such as Arizona and Colorado, opponents of race-based affirmative action have attacked the policy as discriminatory and constitutionally invalid.

The initial challenges to affirmative action focused primarily on arguments concerning the policy's ineffectiveness as a solution to racial inequality and the innocence of Whites who found themselves “negatively” affected by affirmative action programs. As time progressed, however, rather than focusing primarily on affirmative action's purported unfairness to Whites, many affirmative action opponents increasingly began to articulate what they saw as the policy's unfairness to one group of beneficiaries: underrepresented racial minorities. According to this group of activists, the most damaging consequence of “unfair” affirmative action policies was the stigma that racial minorities experienced because of the programs. Proponents of this view identified both internal stigma--doubt of one's own qualifications--and external stigma--the burden of the doubts of others in one's qualifications--as reasons for dismantling affirmative action programs.

For example, in 1992, Terry Eastland, a former fellow at the Ethics and Public Policy Center and a former publisher of the American Spectator, proclaimed that stigma was “[p]erhaps the most damning judgment against affirmative action . . . [given that it] comes in the form of objections that could only be expressed by blacks and members of other minority groups typically included in affirmative action programs.” Eastland focused primarily on the harms of internal stigma, which are “the feeling[s] of dependency, inadequacy, and at times guilt that can strike those who believe themselves to be beneficiaries of affirmative action.” Eastland gave as an example a statement from a Latino officer at Bank of America: “'Sometimes I wonder: Did I get this job because of my abilities, or because they needed to fill a quota?”’

Since the late 1980s, arguments concerning the internal effects of stigma have gained significant power and persuasive force, in part due to the voice given to them by conservative members of racial minority groups. In fact, as proof of internal stigma, white opponents of affirmative action often cite anti-affirmative action statements from minority conservatives, such as Shelby Steele, who once asserted that “when a black student enters college, the myth of inferiority compounds the normal anxiousness over whether he or she will be good enough.”

Additionally, scholars and pundits have repeatedly noted the force of the stigma arguments presented by Justice Clarence Thomas, the second black man to serve on the United States Supreme Court. Indeed, Justice Thomas, who is likely the most well-known opponent of affirmative action, notably denounces the policy on the grounds of internal stigma in his concurrence in Adarand Constructors, Inc. v. Pena:

[T]here can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. . . . Inevitably, [affirmative action] programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government's use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are “entitled” to preferences.

In addition to internal stigma, opponents of affirmative action also contest the policy on the grounds of external stigma, which is “the burden of being treated or viewed differently by others, or as though one is unqualified, based on the assumption that one is a beneficiary of affirmative action.” For example, in Grutter v. Bollinger, Justice Thomas raises the argument of external stigma in a manner that many considered to be personal, stating:

It is uncontested that each year, the [University of Michigan] Law School admits a handful of blacks who would be admitted in the absence of racial discrimination. Who can differentiate between those who belong and those who do not? The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the “beneficiaries” of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma--because either racial discrimination did play a role, in which case the person may be deemed “otherwise qualified,” or it did not, in which case asking the question itself unfairly marks those blacks who succeed without discrimination.

Justice Thomas's arguments in Grutter echo past statements by black conservatives, such as Steele, who similarly argued that “[m]uch of the 'subtle’ discrimination that blacks talk about is often (not always) discrimination against the stigma of questionable competence that affirmative action delivers to blacks.” Recently, Professor Richard Sander of UCLA School of Law has utilized the external stigma rationale to explain the high attrition rate of black and Latino attorneys at law firms and to argue against the use of affirmative action in that context.

Given the effectiveness of the stigma argument as a rhetorical and substantive weapon against affirmative action, we decided to explore the relationship between stigma and law school affirmative action admissions policies. To do so, we collected, for the first time ever, survey responses from both white students and students of color in the Class of 2009 at seven high-ranked public law schools. The seven law schools we included in our survey are: (1) the University of California, Berkeley (“UC Berkeley”); (2) the University of California, Davis (“UC Davis”); (3) the University of Cincinnati; (4) the University of Iowa; (5) the University of Michigan; (6) the University of Virginia; and (7) the University of Washington. Four of these schools--the University of Cincinnati, the University of Iowa, the University of Michigan, and the University of Virginia--employed race-based affirmative action when they admitted the Class of 2009 law students, while the remaining three--UC Berkeley, UC Davis, and the University of Washington--did not use such programs.

By gathering and analyzing data from students at these seven law schools, we were able to compare the responses of students at institutions that use affirmative action in their admission process with those of students at institutions that do not use affirmative action in their admission process. Specifically, we situated and analyzed the collected results within the context of legal scholarship on stigma and affirmative action so that we could empirically examine arguments about internal and external stigma as applied to this small selection of educational institutions. In so doing, we generated new descriptive evidence that counters the stigma arguments that are commonly advanced against affirmative action.

In conducting our survey, we focused primarily on the question of internal stigma. Our goals, as they related to internal stigma, were twofold. First, we wanted to examine the truth, if any, behind the controversial assumption regarding the causal connection between stigma and affirmative action--the argument that affirmative action results in internal feelings of inferiority by its beneficiaries. Although previous studies had found that minority students at elite institutions of higher education graduated at very high rates and went on to have careers equally distinguished as those of their white peers, none of these studies specifically addressed the potential effect of affirmative action on the internal thoughts and feelings of minority law students while in school. Consequently, in our study, we placed special emphasis on exploring the following question: To the extent that students of color do feel stigmatized, is it affirmative action that causes such stigma, or does the stigma result from a complex set of environmental, societal, and cultural factors? We wanted to explore whether potential beneficiaries of affirmative action would agree with activist Eva Patterson, who once facetiously proclaimed, “'Stigmatize [us], give[us] that degree.’ [It's not] [a]s though if you don't have [an elite] degree you're not stigmatized as a black person.”

Second, we analyzed the issue of external stigma. However, we considered the examination of external stigma to be of less importance than internal stigma because we wanted to focus on what Eastland referred to as “the most damning judgment against affirmative action.” Nevertheless, we did examine questions concerning external stigma and affirmative action as a means of analyzing opponents' claims that external stigma will disappear when affirmative action is no longer in place. Additionally, we examined the question of external stigma in order to understand the environments in which minority law students may be battling the effects of stereotype threat.

Overall, we wanted to question the validity of the stigma argument because, as Professor Cornel West would say, the stigma argument matters. It matters especially today, as state-by-state political campaigns against race-based affirmative action programs continue to gain ground. Indeed, affirmative action opponents like Ward Connerly and his anti-affirmative action juggernauts, including the American Civil Rights Institute (“ACRI”) and the American Civil Rights Coalition (“ACRC”), have used the stigma argument to great effect, spearheading successful efforts to dismantle affirmative action programs in California and Michigan and currently working to accomplish the same ends in states such as Arizona and Colorado. In fact, the stigma argument is a crucial piece of opponents' attacks on affirmative action precisely because it aims to convince people “on the fence” that a vote against affirmative action is a vote to protect minorities from the harms of a well-intentioned but misguided program. Although our survey represents only a first step in responding to this stigma argument, its results, which contradict arguments about the causal connection between stigma and affirmative action (at least as it may exist within the seven surveyed law schools), suggest that further examination with a more representative sample of law students from schools across the country could be informative and important for understanding the real impact of affirmative action programs.

In this Article, we give a preliminary answer to the question of which came first--stigma or affirmative action--by presenting and discussing our empirical data collected from the Class of 2009 at the seven surveyed law schools. In Part I of this Article, we give context to our empirical research by examining academic arguments about stigma and affirmative action, with a focus on legal, critical race, and sociolegal critiques.

In Part II, we describe our concerns about administering the survey and identify important limitations of our research methodology. In so doing, we explain how we gathered and analyzed our data and how we selected schools and responded to the concerns of subject and non-subject schools.

In Part III, we present the limits and results of our survey, and our analysis thereof, in three subsections. In the first subsection, we detail the descriptive limits and results of our survey. With respect to the descriptive results, we report four important findings.

First, we present our finding that there is no statistically significant difference in the responses about internal stigma between minority students at the four affirmative action law schools in our survey and those at the three non-affirmative action law schools in our survey. We also reveal that, overall, there is minimal internal stigma felt by responding students of color as a result of the policy.

Second, we share our finding that respondents of color felt no significant impact from external stigma. As our data reveal, minority law students in the sampled affirmative action schools are no more likely to feel that they are treated differently by classmates and professors because of being perceived as affirmative action beneficiaries than those in the sampled non-affirmative action schools.

Third, we report data that support our contention that external stigma does not disappear when affirmative action is eliminated. Specifically, we reveal data that show that a relatively high number of students at the sampled non-affirmative action law schools responded that they believed that some law students of color were admitted to school because of affirmative action.

Fourth, we describe our findings of strong support across the entire sample for the belief that people should learn to interact with others from diverse backgrounds and the idea that diversity enhances education, though support for this second idea is stronger in non-affirmative action law schools than in affirmative action law schools. Additionally, we report our findings that students at surveyed affirmative action law schools are slightly more likely to agree that affirmative action gives preferences to less qualified applicants and constitutes reverse discrimination and that students at surveyed non-affirmative action law schools are slightly more likely to agree that law schools should make special efforts to overcome past discrimination.

In the second subsection of Part III, we explain the statistical models of these attitudes and the implications of our results. In so doing, we provide further background for how readers may interpret our descriptive results. For example, we explicate how statistical controls for factors such as race and gender explained away the reported differences across school type with respect to attitudes toward affirmative action, as reported in the first subsection. Our examination of the attitudes of all respondents showed that, once characteristics of the respondents such as race and gender were statistically controlled, students at the surveyed affirmative action law schools were no more likely to oppose affirmative action than students at surveyed non-affirmative action law schools.

In the third subsection, we briefly discuss one particular type of comment from a number of students at the end of the survey. Specifically, we analyze comments that called for a revision of affirmative action policies with a focus on socioeconomic class.

Finally, we conclude this Article with a discussion of stigma and an analysis of why neither internal stigma nor external stigma mandates the abolition of affirmative action. In sum, we explain why a true understanding of stigma does not support the dismantling of affirmative action on campuses, but rather requires its preservation and fortification.

[. . .]

In this Article, we analyzed the results of a web-based survey of students in the Class of 2009 at seven law schools. These results revealed that there is no statistically significant difference in internal stigma between students of color at the four law schools that do have affirmative action programs and the three that do not have such programs. They also showed that there are no significant harms resulting from internal stigma at these law schools, regardless of whether or not they had affirmative action programs in their admissions. Lastly, these results revealed that there was no significant impact from external stigma on surveyed students at both types of law schools.

In terms of other results, especially our findings that students at schools that allow affirmative action do believe that a significantly higher proportion of the minority student population was admitted because of affirmative action, we note our observation that the comments we received through the survey responses demonstrate how the stigma argument itself is raced and one-sided. Although surveyed students of color did not report significantly worse treatment based on external stigma in schools with affirmative action, comments from a number of white students exhibited the existence of what could be a potential basis for external stigma resulting from affirmative action. A white male student, for example, declared:

I believe that racial and gender diversity is very important, and is a very valuable addition to my education. However, I think affirmative action is the wrong approach. Affirmative action robs talented and intelligent members of minority groups of the credit they deserve for their accomplishments. As a white male student, I can't help but question (at least in the back of my mind) whether a student from a minority group would have gotten into our program if they were not a member of a minority group.

Pundits and commentators, however, are rarely as open about acknowledging the stigma that should correspondingly result from benefits obtained merely as a result of white privilege. In this vein, a minority student asserted:

To the extent there is a stigmatic effect to AA [affirmative action], I believe that it is more the fault of a misunderstanding of how AA is applied. Am I a fan of free rides? No. Nobody is. But I _am_ a fan of considering the fact that based on personal circumstance, two identical LSAT scores may represent two different things. And I'd rather be at [my elite law school] and feel stigmatized against than not be here at all. The best response in a drunken AA debate in a bar in [my town], for me, has always been to ask if the inevitably white, anti-AA advocate had ever benefited from being white. No white person worth arguing can honestly answer 'never’ to that question. Only somewhat tongue in cheek, I submit that I'm all for white stigma. Yet, “white stigma,” as a by-product of the unfair advantages of white privilege, has not really surfaced in affirmative action discourse. The absence of such “white stigma” rhetoric can be explained by Goffman's theory of stigma as a sociologically “negative” and relative phenomenon. Because stigma is both a precondition to and consequence of being a “non-normal”--where “normal” status is defined and perpetuated by the very social and other privileges attached to it--“white stigma” is a fundamentally different phenomenon than minority stigma. In the affirmative action context, Professor Christopher Bracey puts it this way: “Individuals who are commonly associated with actual beneficiaries-- in this instance because of shared racial characteristics--are stigmatized only if one believes the actual beneficiary has been previously stigmatized.”

The raced nature of the application of the stigma argument is further supported by the low estimates we received in response to questions about the proportion of Asian Pacific American students who benefited from affirmative action, even though a number of the affirmative action schools in our study included Asian Pacific American students in their race-based programs. The low estimates of Asian Pacific Americans presumed to benefit from affirmative action and our survey results suggest that, with respect to the seven law schools we surveyed, it was not affirmative action that resulted in internal and/or external stigma, but rather racial stereotypes that have attached historically to different groups, regardless of affirmative action's existence. Surveyed white students believed a larger share of Blacks, Latinos, and Native Americans were admitted because of affirmative action than Asian Pacific Americans, as we saw in Table 2 and Table 4. Because Asian Pacific Americans are generally presumed to not be included in affirmative action programs, their surveyed peers tended not to “stigmatize” them as “unqualified” or “undeserving” even when they may actually have been affirmative action beneficiaries. In essence, the stigma attached to affirmative action beneficiaries did not always correlate with who was actually included in the preference programs, but rather with pre-existing stigmas and stereotypes about racial groups. In other words, here, the stigma, not the affirmative action, came first.

On the raced application of the stigma argument, Professor Lani Guinier adds another layer of complexity in her observation that legacy preferences, given mostly to white students, do not generate the same level of “stigma” as race-based affirmative action. Here again, Guinier's observation demonstrates Goffman's theory of stigma at work. Because stigma does not attach in the first instance to privileged classes, here consisting of mostly white institutional alumni, legacy preferences do not generate the same forms of stigma claims (or general ire among non-legacy students) that race-based considerations do (among white students). Legacy admits are, to turn to Goffman's phrasing, “uber-normals,” the ultimate insiders. These class observations are of particular interest given several of the students' calls for class-based affirmative action programs that would displace race-based ones. In addition, they implicate the ways in which we as a society may fail to recognize and understand the interconnectedness of race and class privilege and subordination. Further discussion of this issue, however, is better left to a separate paper that could more adequately address the many complexities of the interlocking nature of class and race subordination.

Finally, surveyed students who attended schools without affirmative action repeatedly expressed in their comments what they viewed as a loss in their education as a result of the lack of racial diversity in their classrooms. For example, one student at a non-affirmative action school proclaimed:

A diverse student body in education is so important. . . . However, I believe in the classroom it is just as important to have a student body with diverse experiences, not just a mix of different races, ethnicities, and gender. I have learned a lot from many of my classmates . . . from large cities. Some of these classmates are racial minorities, and I feel lucky to be able to learn from them the lessons I was unable to learn growing up in a rural, all-White area. . . . I really wish there were more racial minorities in our school to make it a truly diverse experience. Through their experiences at schools with no affirmative action, these students have pointed to a meaningful deficiency in their education, both inside and outside the classroom. Our society must address this deprivation by preserving and strengthening current race-based affirmative action programs and re-establishing those programs that, for certain students, are sorely missed at their institutions. Overwhelmingly, the students in our sample support the idea that it is “important to learn to relate to people of different backgrounds” and that institutions of higher education should be involved in that process. If we truly wish to live up to this goal, we must commit to diversifying these institutions. Since our results show that at these schools affirmative action policies do not in fact “harm” students of color in the way that opponents of affirmative action have claimed, we hope that we can move forward to a more productive discussion of the best way to design race-based policies to accomplish this goal.

Angela Onwuachi-Willig,  Professor of Law, Charles M. and Marion J. Kierscht Scholar, University of Iowa. B.A., Grinnell College; J.D., University of Michigan Law School. This email address is being protected from spambots. You need JavaScript enabled to view it.. Thanks to Dean Carolyn Jones and Charles and Marion Kierscht for their research support.

Emily Houh,  Gustavus Henry Wald Professor of the Law and Contracts, University of Cincinnati. B.A., Brown University; J.D., University of Michigan Law School. This email address is being protected from spambots. You need JavaScript enabled to view it..

Mary Campbell, Assistant Professor of Sociology, University of Iowa. B.A., George Washington University; M.S., University of Wisconsin; Ph.D., University of Wisconsin. This email address is being protected from spambots. You need JavaScript enabled to view it..

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