Racing Towards Colorblindness: Stereotype Threat and the Myth of Meritocracy

Education law and policy debates often focus on whether college and graduate school admissions offices should take race into account. Those who advocate for a strictly merits-based regime emphasize the importance of colorblindness. The call for colorblind admissions relies on the assumption that our current admissions criteria are fair measures, which accurately capture talent and ability. Recent social science research into standardized testing suggests that this is not the case. Part I of this Article explores the psychological phenomenon of stereotype threat. Stereotype threat has been shown to detrimentally impact the performance of individuals from negatively stereotyped groups when performing tasks that may confirm the relevant stereotype. The result is that many standardized tests, including the LSAT, are likely under-measuring the ability of negatively stereotyped test-takers, especially Black and Latino applicants. This mismeasurement challenges our traditional acceptance of the LSAT as a neutral judge of talent. Part II of this Article proposes a rescaling intervention that would correct for LSAT mismeasurement by adjusting test scores based on the observed mean effect of stereotype threat on LSAT-takers. Rescaling would not only bring the LSAT closer to the fair measures ideal, but would promote institutions’ diversity objectives and help mitigate existing race-dependent burdens on underrepresented minority students. Rescaling is an explicitly race conscious policy, and thus raises numerous legal concerns. Part III defends the constitutionality of the policy, calling for an updated understanding of the well-established compelling interests of diversity and remedying discrimination. I argue that when understood through this hybrid diversity-remedying discrimination rationale, rescaling not only satisfies our need for fair measures, but brings us closer to the colorblindness that the constitution demands

Deficit Frame Dangers

Civil rights advocates have long viewed litigation as an essential, if insufficient, catalyst of social change. In part, it is. But in critical respects that remain underexplored in legal scholarship, civil rights litigation can hinder short- and long-term projects of racial justice. Specifically, certain civil rights doctrines reward plaintiffs for emphasizing community deficits—or what I term a “deficit frame.” Legal doctrine, in other words, invites legal narratives that track, activate, and reinforce pernicious racial stereotypes. This dynamic, even in the context of well-intended litigation, risks entrenching conditions that drive racial inequality—including the conditions that litigation is often intended to address. To concretize the theory, this Article explores how deficit frames can influence the behavior of four key constituencies who impact—and often undermine—the pursuit of educational equality

Hidden in Plain Sight: A More Compelling Case for Diversity

For four decades, the diversity rationale has offered a lifeline to affirmative action in higher education. Yet even after forty years, this critical feature of equal protection doctrine remains constitutionally insecure and politically fraught. Legal challenges persist, the Justice Department has launched a new assault on affirmative action, and a rightward shift on the Supreme Court could usher in an era of increased hostility toward the concept of diversity itself. The future of race-conscious admissions may hang in the balance. In this Article, I contend that the diversity rationale’s present fragility rests, in part, on its defenders’ failure to center diversity’s most compelling quality: its ability to promote personal equality within the university. To fill this void, this Article advances the first comprehensive case for diversity rooted in each student’s interest in an equal opportunity to enjoy, regardless of race, the full benefits of university membership. This framing is appealing, in part, because it makes salient the present and personal equality harms that students of color suffer when severely under-represented in predominately white institutions. Race-conscious admissions, in turn, emerge as an essential component of institutional efforts to further normative commitments—ranging from racial integration to individual meritocracy—that should resonate with Justices across the ideological spectrum. To support this new framing, I resurrect the Supreme Court’s pre- Brown desegregation cases. These decisions reinforce the constitutional infirmity of institutional conditions that compromise a student’s ability, because of her race, to access the full benefits of university membership. I then bridge the theory to social science that reveals how environmental cues—including racial demographics—can exact concrete and quantifiable burdens on students from negatively stereotyped groups. Although well-traveled in other domains, this research has only begun to inform legal scholarship

Hidden in Plain Sight: A More Compelling Case for Diversity

For four decades, the diversity rationale has offered a lifeline to affirmative action in higher education. Yet even after forty years, this critical feature of equal protection doctrine remains constitutionally insecure and politically fraught. Legal challenges persist, the Justice Department has launched a new assault on race-conscious admissions, and an impending shift on the Supreme Court could usher in an era of increased hostility toward the concept of diversity itself. The future of race-conscious admissions arguably hangs in the balance. In this Article, I argue that the diversity rationale’s present fragility rests, in part, on its defenders’ failure to center diversity’s most compelling quality: its ability to promote personal equality within the university. To fill this void, this Article advances the first comprehensive case for diversity rooted in each student’s interest in an equal opportunity to enjoy, regardless of race, the full benefits of university membership. This framing is appealing, in part, because it makes salient the present and personal equality harms that students of color suffer when severely under-represented in predominately White institutions. Race conscious-admissions, in turn, emerge as an essential component of institutional efforts to further normative commitments—ranging from racial integration to individual meritocracy—that should resonate with Justices across the ideological spectrum. To support this new framing, I resurrect the Supreme Court’s oft-forgotten pre-Brown desegregation cases. These decisions reinforce the constitutional infirmity of institutional conditions that compromise a student’s ability, because of her race, to access the full benefits of university membership. I then bridge the theory to social science that reveals how environmental cues—including racial demographics—can exact concrete and quantifiable burdens on students from negatively stereotyped groups. Although well-traveled in other domains, this research has only begun to inform legal scholarship

Eyes Wide Open: What Social Science Can Tell Us About the Supreme Court\u27s Use of Social Science

The Northwestern University Law Review’s 2017 Symposium asked whether McCleskey v. Kemp closed the door on social science’s ability to meaningfully contribute to equal protection deliberations. This inquiry is understandable; McCleskey is widely understood to have rendered statistical racial disparities doctrinally irrelevant in the equal protection context. We suggest, however, that this account overstates McCleskey and its doctrinal impact. Roughly fifteen years after McCleskey, Chief Justice William Rehnquist—himself part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School unconstitutionally discriminated against white applicants. Chief Justice Rehnquist’s disparate treatment of statistical evidence in McCleskey and Grutter v. Bollinger reveals the doctrine’s under-determinacy and invites a corresponding inquiry: why do Justices rely on social science in some cases, yet reject it in others? We propose that one answer lies at the intersections of Critical Race Theory (CRT) and empirical scholarship on motivated social cognition. This “eCRT” lens illuminates how ostensibly neutral biases and heuristics, when informed by socially salient racial stereotypes, will predictably and systematically lead judges to overvalue “evidence” that rationalizes existing racial disparities and, as a result, author legal opinions that re-instantiate and legitimize the status quo

SFFA v. Harvard: How Affirmative Action Myths Mask White Bonus

In the ongoing litigation of Students for Fair Admissions v. Harvard College, Harvard faces allegations that its once-heralded admissions process discriminates against Asian Americans. Public discourse has revealed a dominant narrative: affirmative action is viewed as the presumptive cause of Harvard’s alleged “Asian penalty.” Yet this narrative misrepresents the plaintiff’s own theory of discrimination. Rather than implicating affirmative action, the underlying allegations portray the phenomenon of “negative action” — that is, an admissions regime in which White applicants take the seats of their more qualified Asian-American counterparts. Nonetheless, we are witnessing a broad failure to see this case for what it is. This misperception invites an unnecessary and misplaced referendum on race-conscious admissions at Harvard and beyond

Equal Protection Design Defects

One can understand constitutional doctrine as a tool designed to effectuate the Constitution and its various provisions. Equal protection doctrine, in turn, comprises a set of Justice-made rules designed to realize the promise of equal protection under the law. The substance of that promise remains a topic of deep contestation. Nonetheless, more than forty years of constitutional jurisprudence have entrenched a vision of constitutional equality that privileges what I refer to herein as the “right to compete.” Simply put, the Supreme Court has repeatedly embraced the view that the Equal Protection Clause mandates the government to allocate public benefits — such as employment and admission — on the basis of a person’s individual “merit,” irrespective of their race.Scholars have long critiqued the individualistic and colorblind principles on which this vision rests. Less scholarship, in contrast, has explored whether the doctrine actually gives the Supreme Court what it says it wants. One might assume that it does. Yet growing empirical evidence from domains spanning employment, law enforcement, and education suggests quite the opposite. Specifically, findings from the mind sciences reveal that common facially neutral evaluative tools — such as human judgment, predictive algorithms, and standardized tests — can systematically mismeasure the existing talent and potential (that is, merit) of individuals from negatively stereotyped racial groups. Facially neutral measures of merit, it turns out, may often compromise the right to compete. Equal protection doctrine, which renders facially neutral state action presumptively constitutional, accordingly incentivizes conduct that exacts the precise harm that, according to the Supreme Court, the Fourteenth Amendment is designed to prevent

Defusing Implicit Bias

The February 2012 killing of Trayvon Martin has slowly reignited the national conversation about race and violence. Despite the sheer volume of debate arising from this tragedy, insufficient attention has been paid to the potentially deadly mix of guns and implicit bias. Evidence of implicit bias, and its power to alter real-world behavior, is stronger now than ever. A growing body of research on “shooter bias” reveals that, as a result of implicit bias, White and Black Americans are more likely to shoot unarmed Black men than unarmed White men. The problem has been diagnosed. What remains to be determined is the solution. While defusing implicit bias is a daunting task, the stakes are too high to ignore the problem. States, responsible for laws regulating gun ownership and use, must help defuse implicit bias before it becomes deadly

Measuring the Racial Unevenness of Law School

In Measuring the Racial Unevenness of Law School, Jonathan Feingold and Doug Souza introduce and analyze the concept of racial unevenness, which refers to the particularized burdens an individual encounters as a result of her race. These burdens, which often arise because an individual falls outside of the racial norm, manifest across a spectrum. At one end lie obvious forms of overt and invidious racial discrimination. At the other end, racial unevenness arises from environmental factors and institutional culture independent from any identifiable perpetrator. As the authors detail, race-dependent burdens can arise in institutions and communities that expressly promote racial diversity and condemn overt racial discrimination; good intentions are no panacea to racial unevenness

Approach to ergodicity in quantum wave functions

According to theorems of Shnirelman and followers, in the semiclassical limit the quantum wavefunctions of classically ergodic systems tend to the microcanonical density on the energy shell. We here develop a semiclassical theory that relates the rate of approach to the decay of certain classical fluctuations. For uniformly hyperbolic systems we find that the variance of the quantum matrix elements is proportional to the variance of the integral of the associated classical operator over trajectory segments of length $T_H$, and inversely proportional to $T_H^2$, where $T_H=h\bar\rho$ is the Heisenberg time, $\bar\rho$ being the mean density of states. Since for these systems the classical variance increases linearly with $T_H$, the variance of the matrix elements decays like $1/T_H$. For non-hyperbolic systems, like Hamiltonians with a mixed phase space and the stadium billiard, our results predict a slower decay due to sticking in marginally unstable regions. Numerical computations supporting these conclusions are presented for the bakers map and the hydrogen atom in a magnetic field.Comment: 11 pages postscript and 4 figures in two files, tar-compressed and uuencoded using uufiles, to appear in Phys Rev E. For related papers, see http://www.icbm.uni-oldenburg.de/icbm/kosy/ag.htm