Merritt, Deborah Jones

English

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 85 | Issue 4 Article 2Fall 2010Piercing the Brilliant Veil: Two Stories of AmericanRacismDeborah Jones MerrittOhio State University, Moritz College of LawFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Constitutional Law Commons, and the Education Law CommonsThis Commentary is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationMerritt, Deborah Jones (2010) "Piercing the Brilliant Veil: Two Stories of American Racism," Indiana Law Journal: Vol. 85: Iss. 4,Article 2.Available at: http://www.repository.law.indiana.edu/ilj/vol85/iss4/2Piercing the Brilliant Veil:Two Stories of American RacismDEBORAH JONES MERRITT*There are two stories about racism in America. In the first story, we have moved farbeyond our early sins of slavery and segregation. Students ofcolor attend elite collegesand professional schools. They serve as doctors, lawyers, nonprofit leaders, andcaptains of industry. Signs no longer proclaim "whites only," and children of all racescompete equally in integrated classrooms. A democratic majority elected an AfricanAmerican President, and his black family romps on the White House lawn. In thisAmerica, racism is isolated, sporadic, and anachronistic. A few misguided individualsoccasionally show some racial prejudice, but everyone else abhors racism. We treatpeople of all colors equally, so we no longer have to think about race.In the second story, forty percent of black infants and toddlers live in poverty' andone-third of young Hispanics fare as poorly.2 Racial slurs, hostility, and disdain forminority students permeate elementary and secondary schools.3 High school graduationrates for whites far outstrip those for black or Hispanic students.4 Hispanic men are twotimes more likely than whites to serve time in prison; black men are six times more* John Deaver Drinko/Baker & Hostetler Chair in Law, Moritz College of Law, The OhioState University. My thanks to Andrew and Daniel Merrit for insightful suggestions on thisCommentary.1. U.S. Census Bureau, POV34: Single Year of Age-Poverty Status: 2008, in CURRENTPOPULATION SURVEY: 2009 ANNUAL SOcIAL AND ECONOMIC SUPPLEMENT (2009), http://www.census.gov/hhes/www/cpstables/032009/pov/new34 100 06.htm (last modified Nov. 10, 2009)(41.1% of black infants, 41.7% of black one-year-olds, 41.0% of black two-year-olds, and39.8% of black three-year-olds lived below the poverty line).2. Id. at http://www.census.gov/hhes/www/cpstables/032009/pov/new34 100 09.htm(34.7% of Hispanic infants, 34.5% of Hispanic one-year-olds, 30.7% of Hispanic two-year-olds,and 31.4% of Hispanic three-year-olds lived below the poverty line). The comparablepercentages for non-Hispanic white children living below the poverty line are 12.6% of infants,12.4% of one-year-olds, 12.2% of two-year-olds, and 11.0% of three-year-olds. Id. athttp://www.census.gov/hhes/www/cpstables/032009/pov/new34 100 04.htm.Throughout this Commentary, I focus primarily on the experiences of black andHispanic students rather than on minority students of other races. That focus complements thepopulation surveyed in Professor Bowen's study. Deirdre M. Bowen, Brilliant Disguise: AnEmpiricalAnalysis of a Social Experiment Banning Affirmative Action, 85 IND. L.J. 1197,1220tbl.1 (2010).3. See generally ANNIE S. BARNEs, EVERYDAY RACISM 30-64 (2000); Angelina E.Castagno, "IDon 't Want To Hear That! ": Legitimating Whiteness Through Silence in Schools,39 ANTHROPOLOGY & EDUC. Q. 314 (2008); Kathryn Bell McKenzie, Emotional Abuse ofStudents of Color: The Hidden Inhumanity in Our Schools, 22 INT'L J. QUALITATIVE STUD.EDUC. 129 (2009).4. James J. Heckman & Paul A. LaFontaine, The American High School Graduation Rate:Trends andLevels 29 (Inst. for the Study of Labor, Discussion Paper No. 3216,2007), availableat http://ftp.iza.org/dp3216.pdf. After reconciling discrepancies among government reports ofgraduation rates, Heckman and LaFontaine estimate that white students enjoyed a graduationrate of approximately 83% in 2005. Id, at fig.VII. The graduation rate for Hispanic students wasabout 72%, while for blacks it was just 65%. Id.INDIANA LA W JOURNALlikely than whites to do so.5 Through both good times and bad, unemployment rates forblack and Hispanic workers exceed those for whites. 6 And well-controlled studiesconfirm that employers favor white workers, even when minorities possess identicalcredentials.7This second story acknowledges the structural, systemic nature of white privilege inAmerica. Black and Hispanic children are born into families and neighborhoodsmarked by discrimination. In schools and workplaces, these minority children facedifferential treatment that deepens their disadvantage. Both locally and nationally, theirsociety responds to the problems of white people more readily than to the needs ofminorities. Teachers work harder to help struggling white students succeed;8 thegovernment sends tax dollars to subsidize farms in white Iowa rather than to fix leveesin black Louisiana.9 Whites are blind both to these societal differences and to their ownpersonal prejudices.5. THoMAs P. BONCZAR, U.S. DEP'T OF JUSTICE, PREVALENCE OF IMPRISONMENT IN THE U.S.POPULATION, 1974-2001, at 1 (2003), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/piuspO 1.pdf. Similar estimates suggest that just 5.9% of white men enter prison during theirlifetimes. Id.6. In November 2009, white Americans faced a seasonally adjusted unemployment rate of9.3%. News Release, Bureau of Labor Statistics, U.S. Dep't of Labor, Employment Situation-November 2009 tbl.A-2 (Dec. 4, 2009), available at http://www.bls.gov/news.release/archives/empsit_12042009.pdf. For Hispanic Americans, the rate was 12.7%. Id. at tbl.A-3. For blacks,it was 15.6%. Id. at tbl.A-2. Similar statistics from November 2006, before the currentrecession, show unemployment rates of 3.7% among white Americans, 5.0% among Hispanics,and 8.4% among blacks. News Release, Bureau of Labor Statistics, U.S. Dep't of Labor,Employment Situation: November 2006 tbls.A-2, A-3 (Dec. 8, 2006), available athttp://www.bls.gov/news.release/archives/empsitl 2082006.pdf.7. See, e.g., Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg MoreEmployable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, 94AM. ECON. REV. 991 (2004) (describing a field study of employers' reactions to rdsumdssubmitted by ostensibly black and white candidates, showing significant preference for whitecandidates over black candidates with identical credentials); Sharon L. Segrest Purkiss, PamelaL. Perrewd, Treena L. Gillespie, Bronston T. Mayes & Gerald R. Ferris, Implicit Sources of Biasin Employment Interview Judgments and Decisions, 101 ORG. BEHAV. & HUM. DECISIONPROCESSES 152 (2006) (showing that in laboratory study, management students rated applicantwith Hispanic name and accent less favorably than white applicant); see also Michael Luo, InJob Hunt, Even a College Degree Can't Close the Racial Gap, N.Y. TIMES, Dec. 1, 2009, at Al(stating that 8.4% of black male college graduates were unemployed in 2009, compared to 4.4%of white men with college degrees).8. See, e.g., John B. Diamond, Antonia Randolph & James P. Spillane, Teachers'Expectations and Sense ofResponsibility for Student Learning: The Importance ofRace, Class,and Organizational Habitus, 35 ANTHROPOLOGY & EDUC. Q. 75 (2004).9. See Sidney Blumenthal, "No One Can Say They Didn't See It Coming,'" SALON.COM,Aug. 31, 2005, http://www.salon.com/opinion/blumenthal/2005/08/31/disasterpreparation/(discussing lack of funding for New Orleans levees before Hurricane Katrina); Jessica Hoffman,Farm Subsidies Overwhelmingly Support White Farmers, COLoRLINES, Jan/Feb 2009,http://colorlines.com/article.php?ID=480&p=l (discussing extent of federal subsidies for whitefarmers). See generally IRA KATZNELsON, WHEN AFFRMATIVE ACTION WAS WHITE: AN UNTOLDHISTORY OF RACIAL INEQuALrrY IN TWENTim-CENTURY AMERiCA (2005) (documenting NewDeal policies that consciously favored white workers and families over black ones).1256 [Vol. 85:1255PIERCING THE BRILLIANT VEILSome Americans endorse the first of these stories; some subscribe to the second.Many, like me, believe that both stories say something true about our nation. We havechanged substantially as a society during the last fifty years, and we dream ofprogressing further. The first story recognizes our commitment to change. At the sametime, however, race continues to condition every aspect of our lives. The second storyrecognizes that black and Hispanic children bom today in America face differenteducational, employment, and health odds than white children. Those differences arenot incidental or ephemeral; they are stark disparities rooted in a society that hasalways given white children more opportunities than children of other races.'lWhy do these stories matter? They shape our personal interactions and guide oursocial policies. If racism has ended, as the first story proclaims, then continuingaffirmative action programs could harm both minorities and whites. In an otherwisecolor-blind society, racial preferences might well stigmatize one race while provokinghostility among members of other races." 1 But if our society continues to favor whites,as the second story suggests, then affirmative action has fewer costs and more benefits:it acknowledges the disadvantages that minorities experience daily, offers some redressfor that disadvantage, and reminds whites of our commitment to overcome racism.Professor Bowen offers two key insights for this ongoing debate over affirmativeaction.' 2 First, she persuasively demonstrates that black and Hispanic studentsexperience more self doubt, stigma, and hostility when attending colleges in states thathave banned affirmative action than in states that support those programs. Whateverthe mechanism producing this outcome, the finding deserves weight in policy debates.In particular, as Professor Bowen argues, policy makers should be wary of opposingaffirmative action on the ground that it harms minority students. On the contrary,statewide bans on affirmative action correlate with increased stigma, overt racism, andother negative outcomes for black and Hispanic students.Professor Bowen suggests several plausible explanations for this result, focusingparticularly on the racial isolation of minority students attending colleges in anti-affirmative action states. But the result itself matters, even if researchers cannot fullytrace its roots. Social systems are complex, with feedback loops and causal connectionsthat defy simple models. Professor Bowen's research is telling precisely because shemeasures effects in active social systems. She cannot control inputs in those systems,but her findings offer genuine policy guidance. The reactions of real minority studentsattending real colleges are at least as informative as a priori assumptions about howdifferent policies "must" affect students.Second, if we probe for explanations, then Professor Bowen's study implicitlysupports the second story of American racism: her findings are much more consistentwith that tale than with the first one. If racism has ended in America, then affirmative10. For further discussion of these differences, see, for example, BARNES, supra note 3;MICHAEL K. BROWN, MARTIN CARNOY, ELLIOTT CURRIE, TROY DUsTER, DAVID B. OPPENHEIMER,MARJORIE M. SHuLTuz & DAVID WELLMAN, WHrrEWASHING RACE: THE MYTH OF A COLOR-BLINDSOCIETY (2003); THOMAS M. SHAPIRO, THE HIDDEN COST OF BEING AFRICAN AMERICAN: HowWEALTH PERPETUATES INEQUALITY (2004).11. Throughout much of our nation's history, of course, whites benefited from preferenceswithout suffering any stigma. But those years were not color blind: a privileged race may accorditself preferences without experiencing stigma.12. Bowen, supra note 2.12572010]INDIANA LA WJOURNALaction programs probably would make black and Hispanic students uncomfortable. Ifminorities experience no discrimination before applying to college, then admissionpreferences cannot compensate for discriminatory disadvantage; instead, thepreferences would seem to compensate for deficiencies in the minority studentsthemselves. Under these circumstances, affirmative action programs might wellproduce self doubt in minority students. The programs would also be likely to provokehostility among whites, who would yield college seats to students who had suffered nodisadvantage.Professor Bowen's findings contradict these predictions: hostility and stigma werehigher at colleges that lack affirmative action programs, rather than at schoolsmaintaining racial preferences. If racism has ended, as the first story asserts, whataccounts for this result? Indeed, what explains the existence of any racial hostility orstigma on campuses that have banned affirmative action? If minority studentsencounter no discrimination before college, if their credentials match those of whitestudents on the same campus, and if the college itself is color blind, then why do blackand Hispanic students develop self doubt? Why do they report hostility fromclassmates and professors?The second story of American racism easily explains these findings. That storyacknowledges the racist environments that minority students experience beforeapplying to college. If applicants have suffered from racism, then states that banaffirmative action deny the reality of minority applicants' lives. Students who haverepeatedly suffered racial disadvantage are unlikely to feel comfortable on campusesthat discredit their experiences. The dissonance between official dogma and personalexperience could generate significant feelings of self doubt in minority students.Disbanding affirmative action also sends a powerful message to white students. Byprohibiting affirmative action, the state suggests that racism has ended; whites thenhave less incentive to examine their own acts for hidden bias. A white student whochooses a white lab partner over a black one can reassure herself that the choicecontained no prejudice: "Our society has conquered racism; we all know that blacksand whites are equal. If I happened to choose a white partner rather than a black one,it's because of the students' personal qualities. The white student just seemed friendlierthan the black one." Rationalizations like this can easily deepen into hostility that "justhappens" to follow racial lines. This dynamic would help explain the increasedhostility and overt racist acts that Bowen identified in anti-affirmative action states.The second story also explains why minority students reported less stigma, selfdoubt, and hostility in states that maintain affirmative action programs. The colleges inthese states acknowledge the racism that minority students suffer, and they offer someredress for that injustice. Minority students find those signals welcoming, andconsequently attend college in greater numbers. At least some white students,meanwhile, deepen their understanding of the race-based disadvantages that persist inour society. By interacting with a larger number of minority classmates, and probingthe reasons for their own college's affirmative action, some white students shed theirsocial blinders; they see that our society is not as color blind as their early experiencesuggested. These white students may even examine their own attitudes. Sensitized tothe persistence of prejudice, a white student might reflect: "My first impulse was to askthat white student to be my lab partner. But why did I feel that way? Maybe I just1258 [Vol. 85:1255PIERCING THE BRILLIANT VEILassumed the white person was friendlier than the black one. I'll talk a little to both ofthem before deciding."'3Professor Bowen's study, in sum, undermines both a specific prediction aboutaffirmative action ("preferences harm minority students") and a more general storyabout racism ("our society is color blind"). Her results point the way toward furtherstudy of both issues. Can other researchers replicate her results in other samples ofminority students? Do minority students from anti-affirmative action states apply tograduate school at the same rates as students from affirmative action states? Dodifferences emerge in acceptance, matriculation, or graduation from graduate schools?Investigations of this nature would extend Professor Bowen's pathbreaking exploratorywork.Meanwhile, if policy makers ponder Professor Bowen's findings, we will makesurer progress toward racial equity. To eliminate the second story of American racism,we must confront its persistence. Professor Bowen's study deepens our understandingof racism, as well as our understanding of possible remedies.13. Critics of affirmative action sometimes assume that whites uniformly resent affirmativeaction and view its beneficiaries with suspicion. But, as with other social phenomena, reactionsare more complex. At least some whites respond to affirmative action programs by reflecting onthe need for those programs. That introspection can lead to a greater awareness of racialinjustice, particularly if the white student has an opportunity to interact with peers who haveexperienced that unfairness.2010] 1259

Piercing the Brilliant Veil: Two Stories of American Racism

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Piercing the Brilliant Veil: Two Stories of American Racism

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