American skin: Dispensing with colorblindness and critical mass in affirmative action

University of Pittsburgh Law Review

Volumn 73, Issue 2, 2011, Pages 339-398

  Bowen, Deirdre M ^a  

^a SEATTLE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 84877944622     PISSN: 00419915     EISSN: None     Source Type: Journal    
DOI: 10.5195/LAWREVIEW.2011.218     Document Type: Article

References (147)

1. Derrick Bell, What's Diversity Got to Do with It?, 6 SEATTLE J. FOR SOC. JUST. 527, 527 (2008).
2. See, e.g., Minorities in College Leveling Off, Wash. Times, Oct. 9, 2008, http://www.washingtontimes.com/news/2008/oct/09/minorities-in-college-leveling- despite-rise/;
3. Jerry Crimmins, Law Deans Stress Need for Pipeline to Improve Diversity, CHI. Daily L. BULL., Feb. 11, 2010, available at http://www.luc.edu/iaw/news/ pdfs/dean-yellen-pipeline.pdf.
4. The diversity paradigm first appeared in Regents of the Univ. of Cal. v. Bakke, 438 U. S. 265 (1978). The U. S. Supreme Court contemplated whether U. C. Davis Medical School violated the Equal Protection Clause of the Constitution by setting aside sixteen seats for racial minority applicants. With a four/four split, Powell cast the deciding vote. His decision struck down the medical school's admissions plan because it relied too heavily on race instead of considering it as one of many types of factors that measure diversity. However, Powell articulated only his own thoughts that "the attainment of a diverse student body... clearly is a constitutionally permissible goal for an institution of higher learning."
5. 539 U. S. 306 (2003).
6. Gratz v. Bollinger, 539 U. S. 244 (2003).
7. See Carol Frey, Different Paths to a College Degree, U. S. NEWS & WORLD REP., Sept. 1, 2009, at 40, available at http://www.usnews.com/articles/ education/bestcolleges/2009/08/19/different-paths-to-a-college-degree.html.
8. Justice O'Connor recently co-authored an essay in which she called for research, debate, and innovation. See Sandra Day O'Connor & Stewart Schwab, Affirmative Action in Higher Education over the Next Twenty-five Years: A Need for Study and Action, in THE NEXT 25 YEARS: AFFIRMATIVE Action in Higher Education in the United States and South Africa 58 (David L. Featherman, Martin Hall & Marvin Krislov eds., 2010).
9. As Patricia Gurin found in her study used in the Grutter case, minority students tended to have greater cross-racial understanding than white students because such students are more likely to be in a diverse classroom throughout their educational careers compared to white students. See Expert Witness Report of Patricia Gurin, Grutter v. Bollinger, 137 F. Supp. 2d 821 (E. D. Mich. 2001) (No. 97-75928)
10. reprinted in Expert Report of Patricia Gurin, 5 MICH. J. Race & L. 363, 372-73, 390 (1999).
11. The caveat is extremely important As noted earlier, two-thirds of students do not report experiencing the benefit of decreased stigma, most likely because they do not find themselves in classrooms that create a critical mass of diverse students. See Grutter v. Bollinger, 539 U. S. 306, 318 (2003) (discussing the testimony of Erica Munzel, the Director of Admissions at the law school).
12. See Deirdre M. Bowen, Brilliant Disguise: An Empirical Analysis of a Social Experiment Banning Affirmative Action, 85 IND. L. J. 1197 (2010) (finding that students in affirmative action states were much less racially isolated and much less likely to experience stigma and racial hostility).
13. Devon W. Carbado & Mitu Gulati, What Exactly is Racial Diversity?, 91 CALIF. L. REV. 1149, 1154 (2003) (book review).
14. Recall that these benefits are twofold: increased racial understanding and decreased racial stereotyping. Grutter, 539 U. S. at 308.
15. Delgado warned long ago that the greatest danger for minorities was the dominant group's mindset. See Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411, 2413-14, 2441 (1989). In the current context, the dominant group demands that students of color rationalize their presence on campus to enhance the current curriculum of the dominant group. Yet, the dominant group's presence on campus is taken for granted. Requiring students of color to justify their existence reinforces the mindset of interlopers versus proprietors of that space.
16. CLAUDE STEELE, WHISTLING VIVALDI AND OTHER CLUES TO HOW STEREOTYPES AFFECT US 83-84 (2010). He calls these identity contingencies. Most insightfully, he states we cannot change identities and their internal manifestations, but we can change contingencies.
17. At the time the University of Michigan Law School's lawyers were contemplating how best to frame their legal argument, they not only evaluated Patricia Gurin's research on diversity but also examined Claude Steele's extensive body of work on stereotype threat theory. While Steele prepared a report on the challenges with merit-based testing for admission, the legal team chose to use the benefits of diversity for all students model. See Supporting Research for Admissions Lawsuits, UNIV. OF MICH., http://www.vpcomm.umich.edu/ admissions/research/ (last updated Sept. 8, 2009).
18. Relying on challenging the structural model of admissions that benefits Whites (mostly) would have been a tactical failure. The "benefits for all" strategy lined up with Derrick Bell's Interest Convergence Theory. See Derrick A. Bell, Jr., Brown v. Board of Education and the Interest Convergence Dilemma, 93 HARV. L. REV. 518, 523 (1980).
19. Sylvia Hurtado, Linking Diversity with the Educational and Civic Missions of Higher Education, 30 REV. OF HIGHER EDUC. 185, 193 (2006).
20. Nisha C. Gottfredson et al., Does Diversity at Undergraduate Institutions Influence Student Outcomes?, 1 J. DIVERSITY HIGHER EDUC. 80 (2008).
21. "Out-group" refers to the group of individuals with which the dominant or in-group does not identify. Instead the in-group compares itself to the out-group and uses the comparisons as a basis for self-esteem and social status in its identification with the in-group. Created as part of Social Identity Theory, out groups frequently suffer from oppression and stereotyping as in-group members tend to exaggerate differences from the out-group as a basis for discrimination. See Henri Tajfel, Social Identity in Intergroup Behavior, 13 Soc. SCI. INFO. 65 (1974).
22. Interestingly, one of the ways to achieve this equal status is to create a critical mass of students of color. Grutter v. Bollinger, 539 U. S. 306, 318 (2003) (discussing the testimony of Erica Munzel).
23. See GORDON ALLPORT, THE NATURE OF PREJUDICE (1954).
24. See, e.g., Anthony L. Antonio, The Role of Interracial Interaction in the Development of Leadership Skills and Cultural Knowledge and Understanding, 42 RES. IN HIGHER EDUC. 593 (2001);
25. Patricia Gurin et al., Diversity and Higher Education: Theory and Impact on Educational Outcomes, 72 HARV. EDUC. OUTCOMES 330 (2002);
26. Sylvia Hurtado, The Next Generation of Diversity and Intergroup Relation Research, 61 J. Soc. ISSUES 595 (2005);
27. T. F. Pettigrew & L. R. Tropp, A Meta-analytic Test of Intergroup Contact Theory, 90 J. PERSONALITY & SOC. PSYCHOL. 751 (2006);
28. Daniel A. Powers & Christopher G. Ellison, Interracial Contact and Black Racial Attitudes: The Contact Hypothesis and Selectivity Bias, 74 SOC. FORCES 205 (1995).
29. Mitchell J. Chang, The Impact of an Undergraduate Diversity Course Requirement on Students' Racial Views and Attitudes, 51 J. OF GEN. EDUC., No. 1, 2002 at 21.
30. Grutter v. Bollinger, 539 U. S. 306, 338 (2003).
31. In this sense, Grutter adopts a view of race as an empirical fact. See generally John O. Calmore, Exploring Michael Omi's "Messy" Real World of Race: An Essay for "Naked People Longing to Swim Free", 15 LAW & INEQ. 25 (1997).
32. See ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY (1963).
33. Stephanie Wildman, Privilege and Liberalism in Legal Education: Teaching and Learning in a Diverse Environment, 10 BERKELEY WOMEN'S L. J. 88, 90 (1995). However, the same danger occurs when comparing one's racial status as a diverse contribution in the same way as non-master status characteristics would be diversity contributions. While all of these characteristics are used to enhance the student body's educational experience, these characteristics will enhance in different ways. Understanding a musician, baseball player, or community health worker's view is very different from understanding what oppression is like for an individual who cannot choose when to reveal his or her educational enhancing characteristic, i.e., her race or ethnicity or gender, and knows no rewards come from possessing these master statuses.
34. O'Connor wishes to acknowledge that race has some meaning in society in that it shapes how individuals interact with each other in corporations and the military, but she does not want to acknowledge the structural consequences of the long history of racial interactions. See Marvin Jones, What Does Diversity Mean in Legal Education and Beyond? Plessy's Ghost: Grutter, Seattle and the Quiet Reversal of Brown, 35 PEPP. L. REV. 583 (2008).
35. In essence, O'Connor is operating under the fallacy Blauner articulated that race and racial oppression are not independent dynamic forces but are reduced to other causal determinants, such as economics or psychological forces. ROBERT BLAUNER, RACIAL OPPRESSION IN AMERICA 82-104 (1972).
36. Furthermore, her legal analysis is consistent with Sleeter's point that racism is, in fact, blameless. Christine E. Sleeter, White Silence, White Solidarity, in RACE Traitor 257, 259 (Noel Ignatiev & John Garvey eds., 1996). Thus, Grutter is consistent with the line of analysis that because racism is blameless, affirmative action cannot be employed as a reparations tool.
37. Grutter v. Bollinger, 539 U. S. 306, 330 (2003) (discussing the testimony of Erica Munzel).
38. Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978).
39. The critical mass concept appeared in the courthouse prior to Grutter in three other education cases. See United States v. Virginia, 518 U. S. 515, 523 (1996);
40. Comfort ex rel. Neumyer v. Lynn Sch. Comm., 263 F. Supp. 2d. 209 (D. Mass. 2003)
41. superseded by, 283 F. Supp. 2d 328 (2003);
42. Oliver v. Kalamazoo, 498 F. Supp. 732, 747-48 (W. D. Mich. 1980)
43. vacated, 706 F.2d 757 (6th Cir. 1983).
44. Adeno Addis, The Concept of Critical Mass in Legal Discourse, 29 CARDOZO L. REV. 97, 99 (2007).
45. See Dorothy Brown, Taking Grutter Seriously, 43 HOUS. L. REV. 1 (2006).
46. Colin S. Diver, From Equality to Diversity: The Detour from Brown to Grutter, 2004 U. ILL. L. REV. 691, 694 (2004) (observing that diversity is a weaker argument than remediation in support of affirmative action);
47. Bryan K. Fair, Re (Caste) ing Equality Theory: Will Grutter Survive Itself by 2028?, 7 U. PA. J. CONST. L. 721, 722 (2005);
48. Matthew Scutari, "The Great Equalizer": Making Sense of the Supreme Court's Equal Protection Jurisprudence in American Public Education and Beyond, 97 GEO. L. J. 917 (2009).
49. See Kenneth B. Nunn, Diversity as a Dead-End, 35 Pepp. L. REV. 705 (2008);
50. Cedric Merlin Powell, Rhetorical Neutrality: Colorblindness, Frederick Douglass, and Inverted Critical Race Theory, 56 CLEV. ST. L. REV. 823 (2008).
51. See ANGELO ANCHETA, SCIENTIFIC EVIDENCE AND EQUAL PROTECTION OF THE LAW 6 (2006) ("[M]any judges may lack the technical expertise in science and mathematics that would enable them to become the types of 'amateur scientists' who could be truly effective gatekeepers.");
52. Derrick Darby, Educational Inequality and the Science of Diversity in Grutter: A Lesson for the Reparations Debate in the Age of Obama, 57 U. KAN. L. REV. 755, 779-80 (2009) (arguing that relying on empirical findings as the authority for the majority opinion leaves the position open to attack when contrary findings reveal themselves);
53. Brian N. Lizotte, The Diversity Rationale: Unprovable, Uncompelling, 11 MICH. J. RACE & L. 625 (2006) (providing a scathing critique of the theory, methodologies, and logic of the studies the Court relied on to support the compelling interest of student diversity).
54. See Grutter v. Bollinger, 539 U. S. 306, 347 (2003) (Scalia, J., concurring in part and dissenting in part) ("This, of course, is not an educational benefit... [f]or it is a lesson of life rather than lawessentially the same lesson taught to... people three feet shorter and 20 years younger than the fullgrown adults at the University of Michigan Law School-").
55. See Charles Lawrence, Two Views of the River, A Critique of the Liberal Defense of Affirmative Action, 101 COLUM. L. REV. 928, 940 (2001).
56. see also Richard Delgado, Affirmative Action as a Majoritarian Device: Do You Really Want to Be a Role Model?, 89 MICH. L. Rev. 1222, 1224 (1991) (arguing that affirmative action is a homeostat in which institutions admit enough students of color to maintain stabilization without infringing on the privileged group).
57. @ Derrick Bell, Diversity's Distractions, 103 COLUM. L. REV. 1622 (2003).
58. Cristina M. Rodriguez, Against Individualized Consideration 5-7 (N. Y. U. Sch. L. Pub. L. & Legal Theory Res. Paper Series, Working Paper No. 08-18, 2008), available at http://www.ssrn. com/abstract=l 148352.
59. The mere salience of the threat of the stereotype being attached can affect student performance. Rachel Moran, Diversity and its Discontents: The End of Affirmative Action at Boalt Hall, 88 Cal. L. REV. 2241, 2258-59 (2000).
60. As Claude Steele points out, the stress of having to ensure that the stereotype does not attach can significantly impact student performance. Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 AM. PSYCHOLOGIST 613, 614 (1997).
61. See, e.g., Deborah Jones Merritt, Brown's Legacy: The Promises and Pittfalls of Judicial Relief, 56 NEGRO EDUC. REV. 51, 53 (2005) ("Selective colleges have just the 'right' mix of white and minority students, enough African American and Latino students to give the campus an urbane, cosmopolitan air without threatening the white campus majority.").
62. Grutter v. Bollinger, 539 U. S. 306, 367 n. 3 (2003) (Thomas, J., concurring in part and dissenting in part).
63. See also Regents of Univ. of Calif, v. Bakke, 438 U. S. 265, 319 (1978) (explaining that the quota system tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class);
64. Sumi Cho, From Massive Resistance, to Passive Resistance, to Righteous Resistance Understanding the Culture Wars from Brown to Grutter, 7 U. Pa. J. CONST. L. 809, 830 (2005). However, we do not frame the legacy admissions program as a quota system that tells applicants who are first generation college applicants that they are totally excluded from a specific percentage of the seats in an entering class.
65. Grutter, 539 U. S. at 347 (Rehnquist, J., dissenting).
66. See also Lauren Arms, It's Not All Black and White: Race-Based Admissions Purport to Achieve a Critical Mass of Diversity, but in Reality Merely Mask a Pre-Determined Quota of the Ideal Integrated Society, 49 S. TEX. L. REV. 205 (2007);
67. Joshua Levine, Stigma's Opening: Grutter's Diversity Interest (s) and the New Calculus for Affirmative Action in Higher Education, 94 CAL. L. REV. 457 (2006).
68. But see Alex M. Johnson, Defending the Use of Quotas in Affirmative Action: Attacking Racism in the Nineties, 1992 U. ILL. L. REV. 1043, 1060 (1992) (arguing that quotas are an acceptable and necessary tool for higher education admissions when a pool of qualified candidates is available to achieve a class of students reflective of the demographics in society).
69. Khaled Ali Beydoun, Without the Color of Law: The Losing Race Against Colorblindness in Michigan, 12 MlCH. J. RACE & L. 465, 474 (2007) (quoting Memorandum from Al Quinlan and Liz Gerloff, Greenberg Quinlan Rosner, to Trisha Stein (Feb. 24, 2006) (on file with [Beydoun]));
70. see also Ashley M. Hibbett, The Enigma of the Stigma: A Case Study of the Validity of the Stigma Arguments Made in Opposition to Affirmative Action Programs in Higher Education, 21 HARV. BLACK LETTER L. J. 76 (2005) (describing Law & Order episodes in which black defendants used a defense relying on the harms of affirmative action to explain their crimes);
71. Janine Jackson, Affirmative Action Coverage Ignores Women-and Discrimination, EXTRA!, Jan./Feb. 1999, available at http://www.fair.org/index. php?page=1442.
72. For example, Justice Powell rejected employing affirmative action as a tool for remedying past discrimination when innocent parties would be burdened. Likewise, Justice O'Connor was mindful of the same concern. See Grutter v. Bollinger, 539 U. S. 306, 341 (2003);
73. Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 310 (1978).
74. See Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004).
75. See, e.g., Metro Broad., Inc. v. FCC, 497 U. S. 547, 637 (1990) (Kennedy, J., dissenting) (noting that affirmative action policies impose stigma on their beneficiaries and foster views that they are less able to compete);
76. Richmond v. J. A. Croson Co., 488 U. S. 469, 516 (1989);
77. Charles Murray, Affirmative Racism, in Debating Affirmative Action: Race, Gender, Ethnicity, and the Policies of Inclusion, in DEBATING AFFIRMATIVE ACTION: RACE, GENDER, ETHNICITY, AND THE POLITICS OF INCLUSION 207 (Nicolaus Mills ed., 1994);
78. Terry Eastland, The Case Against Affirmative Action, 34 WM. & MARY L. REV. 33, 34 (1992);
79. see also Thomas J. Kane, Misconceptions in the Debate Over Affirmative Action in College Admissions, in CHILLING ADMISSIONS: The AFFIRMATIVE ACTION CRISIS AND THE SEARCH FOR ALTERNATIVES 18 (Gary Orfield & Edward Miller eds., 1998) ("[TJhe most damning charge against affirmative action is that it does more harm than good for the intended beneficiaries, by enticing students to attend colleges where they are unprepared for the competition. ");
80. andré douglas pond cummings, Open Water: Affirmative Action, Mismatch Theory and Swarming Predators: A Response to Richard Sander, 44 BRANDEIS L. J. 795, 844 (2006);
81. R. A. Lenhart, Understanding the Mark: Race, Stigma, and Equality in Context, 79 N. Y. U. L. REV. 803, 809-10 (2004) (describing all the ways in which stigma does harm).
82. But see Ian Ayres & Richard Brooks, Does Affirmative Action Reduce the Number of Black Lawyers?, 57 STAN. L. REV. 1807 (2004);
83. David L. Chambers et al., The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander's Study, 57 STAN. L. REV. 1855, 1857 (2005) (concluding that eliminating racial preferences would yield a "substantial net decline in the number of African Americans entering the bar");
84. Cheryl I. Harris & William C. Kidder, The Black Student Mismatch Myth in Legal Education: The Systemic Flaws in Richard Sander's Affirmative Action Study, 46 J. BLACKS HIGHER EDUC. 102 (2004) (discussing the results of Sander's data and, after their own analysis, drawing the opposite conclusion);
85. Daniel E. Ho, Why Affirmative Action Does Not Cause Black Students to Fail the Bar, 114 Yale L. J. 1997 (2005);
86. Jesse Rothstein & Albert Yoon, Affirmative Action in Law School Admissions: What Do Racial Preferences Do?, 75 U. CHI. L. REV. 649, 650 (2008) (empirically analyzing Sander's data and concluding that eliminating affirmative action would reduce the number of black lawyers at far greater rates than the increase in the number of black students who might pass the bar exam with the elimination of negligible mismatch effects concentrated in the small pool of the weakest students).
87. See John E. Morrison, Colorblindness, Individuality and Merit: An Analysis of the Rhetoric Against Affirmative Action, 79 IOWA L. REV. 313, 340-44 (1994) (excellently dissecting how the stigma argument is employed);
88. See also Note, Lasting Stigma: Affirmative Action and Clarence Thomas's Prisoners' Rights Jurisprudence, 112 Harv. L. Rev. 1331, 1334-36 (1999);
89. andré douglas pond cummings, Grutter v. Bollinger, Clarence Thomas, Affirmative Action and the Treachery of Originalism: "The Sun Don V Shine Here in this Part of Town", 21 HARV. BLACK LETTER L. J. 1, 2 n. 5, 6 n. 19 (2005).
90. Grutter v. Bollinger, 539 U. S. 306, 373 (2003).
91. See THOMAS SOWELL, AFFIRMATIVE ACTION AROUND THE WORLD: AN EMPIRICAL STUDY (2004). However, Sowell was later critiqued for data selection choices that yielded a desired outcome.
92. Lackland H. Bloom, Jr., Grutter and Gratz: A Critical Analysis, 41 HOUS. L. REV. 459, 512-13 (2004.) However, no one expressed equal concern that lesser performing legacy admit-ted students might become dependent and feel entitled to their admission program.
93. See Grutter, 539 U. S. at 306.
94. Roslyn Arlin Mickelson, Twenty-First Century Social Science on School Racial Diversity and Educational Outcomes, 69 OHIO ST. L. J. 1173, 1175-78 (2008).
95. See Expert Witness Report of Patricia Gurin, Gratz v. Bollinger, 122 F. Supp. 2d 811, 822-24 (E. D. Mich. 2000) (No. 97-75321);
96. Expert Witness Report of Patricia Gurin, supra note 10, at 363-426.
97. Peter Schmidt, "Intergroup Dialogue" Promoted as Using Racial Tension to Teach, CHRON. HIGHER EDUC., July 16, 2008, available at http://chronicle.com/article/lntergroup-Dialogue-Promoted/985.
98. But see THOMAS J. ESPENSHADE & ALEXANDRIA WALTON RADFORD, NO LONGER SEPARATE, NOT YET EQUAL: RACE AND CLASS IN ELITE COLLEGE ADMISSION AND CAMPUS LIFE (2009) (finding that students reported the most gains in racial understanding from informal activities like socializing, rather than formal activities like diversity training).
99. See General Information, ANN. BIOMEDICAL RES. CONF. FOR MINORITY STUDENTS, http://www.abrcms.org/page01a.html (last visited Apr. 4, 2012). Thus, students who tend to be highly motivated and have mentors to encourage them to pursue graduate school are more likely to attend this conference. I gained access to the conference through the approval and support of Clifton Poodry (Director of the Division of Minority Opportunities in Research, National Institute of General Medical Sciences, National Institutes of Health) and Dr. Cliff Houston from the University of Texas.
100. The conference website posts the specific number of registrants for each year's conference. See General Information, supra note 108.
101. I chose to collect data on under-represented minority students in the hard sciences because although these students may well take elective courses in ethnic studies, they most likely do not converse in their classes about race and ethnicity issues. You will recall that one of the criticisms of other work on diversity is that the sample involves students in ethnic studies courses, which are too narrow to generalize or base results on campus-wide diversity, which lacks the necessary connection to what occurs in the classroom. Thus, understanding how students of color benefit from diversity in a wide variety of courses outside of the ethnic studies curriculum offers a more meaningful way to examine its effect. Furthermore, while a significant amount of work has been done writing about minority students in undergraduate education generally, see Corinne E. Anderson, A Current Perspective: The Erosion of Affirmative Action in University Admissions, 32 AKRON L. REV. 181 (1999);
102. Margalynne J. Armstrong & Stephanie M. Wildman, Teaching Race/Teaching Whiteness: Transforming Colorblindness to Color Insight, 86 N. C. L. REV. 635 (2007-2008);
103. Michael J. Kaufman, (Still) Constitutional School Desegregation Strategies: Teaching Racial Literacy to Secondary School Students and Preferencing Racially-Literate Applicants to Higher Education, 13 MICH. J. RACE & L. 147 (2008);
104. Angela Onwuachi-Willig, The Admission of Legacy Blacks, 60 VAND. L. REV. 1141 (2007);
105. Alfreda A. Sellers Diamond, Serving the Educational Interests of African-American Students at Brown Plus Fifty: The Historically Black College or University and Affirmative Action Programs, 78 TUL. L. REV. 1877 (2004)
106. and in legal education and affirmative action, see Alma Clayton-Pedersen & Sonja Clayton-Pedersen, "Making Excellence Inclusive" in Education and Beyond, 35 PEPP. L. REV. 611 (2007-2008);
107. Adrien Katherine Wing, Race-Based Affirmative Action in American Legal Education, 51 J. LEGAL EDUC. 443 (2001)
108. very little has been written regarding diversity for students in the hard sciences, see Barbara A. Noah, A Prescription for Racial Equality in Medicine, 40 CONN. L. REV. 675 (2007-2008);
109. Susan Welch & John Gruhl, Does Bakke Matter? Affirmative Action and Minority Enrollments in Medical and Law Schools, 59 OHIO ST. L. J. 697 (1998).
110. Disparate life expectancies and access to health care remains dramatic between Whites and minority groups. Having minority students in medical school and as doctors, researchers, and health care professionals wilt have a life-altering impact on these populations. Yet under-represented minorities' under-enrollment in the hard sciences in colleges, graduate schools, and professional schools is more significant than in any other fields of study. Understanding how diversity does or does not benefit these particular students becomes crucial. See generally Women, Minorities, and Persons with Disabilities in Science and Engineering, NAT'L SCI. FOUND. (Feb. 2011), http://www.nsf.gov/ statistics/wmpd/.
111. Currently, a significant percentage of science professors in the United States are foreign bom and do not have a sophisticated understanding of the nature of race relations in this country. For example, in 2008, 33% of faculty in computer sciences, 26% in engineering, 33% in math, and 22% in physical sciences were from other countries. CHRISTINE M. MATTHEWS, CONG. RESEARCH SERV., FOREIGN SCIENCE AND ENGINEERING PRESENCE IN U. S. INSTITUTIONS AND THE LABOR FORCE 2 n. 6 (2008);
112. see also Julie J. Park & Nida Denson, Attitudes and Advocacy: Understanding Faculty Views on Racial/Ethnic Diversity, 80 J. HIGHER EDUC. 415, 422, 429 (2009) (asserting that faculty in engineering were least likely to score high on the diversity advocacy measure and faculty in math and sciences were most likely to fall low on the diversity advocacy scale).
113. HBCUs may offer the one exception in which minorities make up the majority of students. Emma L. Carew, Diversity Increases at Public Historically Black Colleges, CHRON. HIGHER EDUC., Sept. 15, 2009, available at http://chronicle.com/article/Diversity-lncreases-at-Public/48410.
114. See Grutter v. Bollinger, 539 U. S. 306, 330 (2003).
115. Grutter v. Bollinger, 137 F. Supp. 2d 821, 832, 834 (E. D. Mich. 2001)
116. rev'd, 288 F.3d 732 (6th Cir. 2002)
117. affd, 539 U. S. 306 (2003).
118. Grutter v. Bollinger, 539 U. S. 306, 319-20 (2003).
119. These results, however, raise interesting questions about how critical mass may affect a student's psychological well-being in terms of performance in school because of stereotype threat. In other words, does critical mass play a role in making race less salient in classroom performance? In future research, I intend to examine how the sociological structure of the classroom may affect racial priming and, in turn, affect student performance. These results show increased self-confidence, but that doesn't necessarily translate into decreased or increased stigma. See Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 AM. PSYCHOLOGIST 613 (1997) (demonstrating that highly domain-attached individuals are at highest risk for the negative effects of stereotype threat).
120. Grutter v. Bollinger, 539 U. S. 306, 330 (2003).
121. A 2003 study confirms that Whites are the most segregated group in the nation's public schools. On average, the student population is 80% white. ERICA FRANKENBERG ET AL., HARVARD UNIV. CIVIL RIGHTS PROJECT, A MULTIRACIAL SOCIETY WITH SEGREGATED SCHOOLS: ARE WE LOSING THE DREAM? (2003), available at http://pages.pomona.edu/~vis04747/h21/readings/AreWeLosingtheDream.pdf.
122. Conversely, Reuters reported last year that school segregation is at its lowest rate since the Civil Rights era, with African Americans and Latina/os increasingly isolated in schools. Matthew Bigg, U. S. School Segregation on the Rise: Report, REUTERS, Jan. 14, 2009, available at http://www.reuters.com/ article/idustre50d7cy20090114.
123. Grutter, 539 U. S. at 330.
124. See generally STEELE, supra note 19.
125. John Calmore questions whether Whites are able to remove their color gaze and develop true empathy and connection with people of color. CALMORE, supra note 41, at 74. The results of the study suggest that students of color do not have great confidence in white students' ability to do so. That raises the question of what exactly is racial understanding.
126. CHARLES VOGLETREE, THE PRESUMPTION OF GUILT: THE ARREST OF HENRY LOUIS GATES JR. AND RACE, CLASS, AND CRIME IN AMERICA 99 (2010).
127. Social scientists assert that race is a social construct. By that, they mean values and ideas about race arise and perpetuate themselves through social situations. As Montejano aptly puts it, "Although race situations generally involve people of color, it is not color that makes a situation a racial one-[T]he race question... represents an arena of struggle and accommodation.... [I]t comes into being when ideas and sentiments are publicly articulated and institutionalized." DBAVID MONTEJANO, ANGLOS AND MEXICANS IN THE MAKING OF TEXAS, 1836-1986, at 4-5 (1987).
128. See, e.g., John Matlock, Student Expectations and Experiences: The Michigan Study, DIVERSITY DIGEST, http://www.diversityweb.org/digest/Sm97/ research.html (last visited Apr. 9).
129. JOHN OGBU, MINORITY EDUCATION AND CASTE: THE AMERICAN SYSTEM IN CROSS CULTURAL PERSPECTIVE (1978).
130. Katherine McClelland, Paper Presented at the Annual Meeting of the American Sociological Association: How Race Matters: The Integration of Immigrant and Involuntary Minorities on a Predominantly White College Campus (Aug. 16, 2003).
131. E. P. Apfelbaum, S. R. Sommers & M. I. Norton, Seeing Race and Seeming Racist? Evaluating Strategic Colorblindness in Social Interaction, 95 J. PERS. & SOC. PSYCH. 918 (2008).
132. Jacquie D. Vorauer & Cory A. Turpie, Disruptive Effects of Vigilance on Dominant Group Members ' Treatment of Out Group Members: Choking Versus Shining Under Pressure, 87 J. PERS. & Soc. PSYCH. 384 (2004) (presenting research showing that white students who felt that stigmatized groups were judging white student behavior because of their perceived status and power in society were more likely to react negatively to stigmatized minorities).
133. Phillip Atiba Goff et al., The Space Between Us: Stereotype Threat and Distance in Interracial Contexts, 94 J. PERS. & Soc. PSYCH. 91 (2008).
134. As Calmore notes, Whites are raised to talk about race in such a way that maintains the status quo. Strategies are adopted so that Whites do not have to engage in the exercise of considering how they perpetuate a racial hierarchy that secures their position at the top. The strategies include semantic evasion and semantic infiltration. CALMORE, supra note 41, at 79. So one can imagine how threatening it can be to confront one's privilege after a lifetime of what I call "racialized muting." Gallagher observes that the common sense view of race relations is to acknowledge race, perhaps, from a cultural perspective, but not to actually discuss race. Charles A. Gallagher, Color-Blind Privilege: The Social and Political Functions of Erasing the Color Line in Post Race America, 10 RACE, GENDER & CLASS 4 (2003).
135. Grutter v. Bollinger, 539 U. S. 306, 372-73 (2003) (Thomas, J., concurring in part and dissenting in part).
136. Jutta M. Allmendinger & J. Richard Hackman, The More the Better? A Four-Nation Study of the Inclusion of Women in Symphony Orchestras, 74 SOC. FORCES 423 (1995).
137. Henze observes that even after integration emerged from Brown v. Board of Education, fractiousness, identity opposition, and racial tension actually increased. ROSEMARY HENZE ET AL., LEADING FOR DIVERSITY: HOW SCHOOL LEADERS PROMOTE POSITIVE INTERETHNIC RELATIONS 35 (2002).
138. Cedric M. Powell, Rhetorical Neutrality: Colorblindness, Frederick Douglass, and Inverted Critical Race Theory, 56 CLEV. ST. L. REV. 823, 860 (2008) (arguing that Justice O'Connor analyzed the viability of affirmative action in terms of accommodating white interests and the benefits of institutions and corporations completely consistent with Derrick Bell's Interest Convergence Theory).
139. Harry G. Hutchison, Moving Forward? Diversity as a Paradox? A Critical Race Review, 57 CATH. U. L. REV. 1059, 1086-87 (2008).
140. In fact, Richeson and Nussbaum found that when college students were primed for multiculturalism versus colorblind ideologies as ways to improve interethnic relations, students exhibited more bias in a colorblind ideological approach. Jennifer Richeson & Richard Nussbaum, The Impact of Multiculturalism Versus Color-Blindness on Racial Bias, 40 J. EXPERIMENTAL PSCYHOL. 417 (2003).
141. WILLIAM JULIUS WILSON, MORE THAN JUST RACE: BEING BLACK AND POOR IN THE INNER CITY 141 (2009).
142. These results are consistent with other studies that have shown diversity alone cannot create meaningful educational outcomes. Campus climate and institutional support are also required. Gary Pike & George Kuh, Relationships Among Structural Diversity, Informal Peer Interactions and Perceptions of the Campus Environment, 29 REV. HIGHER EDUC. 425 (2006).
143. Michelle Fine et al., Communities of Difference: A Critical Look at Desegregated Spaces Created for and by Youth, 67 HARV. EDUC. REV. 247, 247 (1997).
144. Victoria Plaut, Kecia Thomas & Matt Goren, Is Multiculturalism or Colorblindness Better for Minorities?, 20 PSYCHOL. SCI. 444, 445 (2009).
145. Walter R. Allen, The Color of Success, 62 HARV. EDUC. REV. 26, 42 (1992).
146. Victoria C. Plaut et al., "What About Me?" Perceptions of Exclusion and Whites' Reactions to Multiculturalism, 101 J. PERSONALITY & Soc. PSYCHOL. 337 (2011).
147. (quoting Steven D. Smith, Conciliating Hatred, 144 FIRST THINGS 17, 18 (2004)).