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Rand, K L R; Light, S A --- "Teaching Race without a Critical Mass: Reflections on Affirmative Action and the Diversity Rationale" [2005] LegEdDig 56; (2005) 14(2) Legal Education Digest 11

Teaching Race without a Critical Mass: Reflections on Affirmative Action and the Diversity Rationale

K R L Rand & S A Light

[2005] LegEdDig 56; (2005) 14(2) Legal Education Digest 11

54 J Legal Educ 3, 2004, pp 316–335

The Supreme Court in 2003 decided what was universally acknowledged as a landmark case on affirmative action. The Grutter Court held that the University of Michigan Law School’s affirmative action policy withstood strict scrutiny. The Court’s acceptance of student-body diversity as a compelling interest turned on its recognition of the many benefits accruing, in a racially diverse classroom, to both white students and students of colour. On campus, a diverse group of students promotes social equity through increased ‘cross-racial understanding’ and decreased acceptance of stereotypes; diversity also enriches classroom discussion through the ‘robust exchange of ideas’ by students with wide-ranging views and experiences. The law school’s efforts to enroll a critical mass of underrepresented students of colour were necessary to achieve the educational benefits of diversity, the Court acknowledged.

The University of North Dakota (UND) has an open enrolment policy for undergraduate admission. All applicants must meet three criteria: completion of a high school core curriculum; achievement of a specified minimum high school grade point average; and achievement of a specified minimum score on a standardised college entrance exam. The law school’s annual cohort size is limited largely by its classrooms and other resource issues, rather than by strict adherence to any particular numerical cut-off. That is, there is no recognised ‘full’ complement of students admitted under the school’s rolling admissions process. Although the university has no formal affirmative action policy for admissions, it seeks to diversity its student body through a program of ‘soft’ affirmative action, hinging on the active recruitment of Native Americans and other students of colour, as well as widespread availability of scholarships, tuition waivers and stipends.

The authors’ experience in teaching affirmative action spans a variety of courses and students. They have found that their undergraduate and graduate-level students share a common level of preparedness concerning many of the building blocks for promoting an informed discussion of race law and policy. Their courses follow the trajectory of UND students from their matriculation to college and law or graduate school to their entry into the professional workforce.

The teaching module on affirmative action unfolds in several stages. Before any assigned reading, lecture, or class discussion on affirmative action, students are required to role-play as a university admissions committee. The exercise begins with a simple question for students to consider individually: what factors should a university admissions committee take into account in evaluating an applicant? Students are instructed to reflect on their own experiences with undergraduate or law school admissions in generating their list of relevant criteria. Students are asked to discuss the rationales for their admissions decisions in light of the factors they chose for consideration and to think about the extent to which different committees used similar or differing evaluation criteria.

Student responses to the topic and the group exercise are remarkably consistent over time and across class cohorts, both within our disciplines and across them. The student reactions observed therefore span undergraduate, graduate, and law school curricula. Within their discussion of each observation, the authors seek to provide representative student comments, noting that students have a strong tendency to undervalue diversity, that their predispositions influence their ability to acquire and process new information, and that they personalise the issues at hand.

In the course of the group exercise, it is fairly common for white students to start from the premise that admissions decisions should be based solely on GPAs and test scores. Invariably, however, the group discussion leads students to agree that other factors may be relevant. Although at this point students overwhelmingly oppose taking race into consideration, they tend to see socio-economic status, overcoming personal hardship, difficulty of course work, and extracurricular activities as important factors.

Cognitive psychologists have found that when people are presented with information that is dissonant from their understanding of events or processes, they erect ‘conceptual blocks’ that make it difficult for them to acquire and process new information, that is, to learn. In teaching about race, one must be especially aware of this tendency and compensate for it through creative pedagogy.

Linked to their firmly held predisposition toward race neutrality is students’ perception that any law or policy that takes race into account can result in ‘reserve racism’ against whites. Students tend to emphasise what they see as the contemporary prevalence of reverse racism and the ‘disadvantages’ of being white. Students often cite a decreasing prevalence of racism in America in support of race-neutral university admissions.

As to the question of whether, in practice, race actually does matter today, the distinction between individual racial prejudice and institutionalised racial discrimination is a difficult concept for students to grasp and acknowledge. When we teach about race, our students demonstrate an intense desire to personalise and anecdotalise experiences that they also see as generalisable. In a discussion of affirmative action, white students at the undergraduate and the law school level alike frequently provide anecdotal evidence that they, or a friend, ‘know someone’ — a person of colour who got into a college or law school and ‘just shouldn’t have’.

However, neither the group exercise nor the entire module on affirmative action completely transcends the barriers to students’ learning and broader understanding of race issues observed at UND. In the group exercise, most white students diligently avoid discussion of race or, if it is raised, assert that it should not be taken into account and that’s that. The few students of colour at UND are easily outnumbered, outvoted, and outvoiced by their white classmates. The teacher’s ability to effectively convey a broad range of perspectives, without the reinforcement of more than a handful of students who might be able to provide opinions and experiences supporting alternative perspectives, is limited, because the usually authoritative professorial voice is easily dismissed when it does not coincide with student’s pre-existing beliefs.

Teaching about race or discussing affirmative action in a homogeneous environment has the potential to create discomfort for the handful of students of colour who are present and to hamper their learning. Thus, the value to white students of classroom diversity is undermined by the absence of a critical mass of students of colour. Without much exposure to differing perspectives, they are ill-equipped to critically examine stereotypes and ill-prepared to work in diverse environments and to appreciate the value of multiple perspectives and differing experiences. The authors believe their teaching experiences highlight the necessity of rethinking the practical application of the diversity rationale in a homogeneous educational setting.

Another possible perspective, born of the authors’ experiences in teaching race at UND, is that the short-term benefits of diversity in the classroom are less important than the long-term benefits to society. This approach to diversity focuses less on the benefits accruing to all students in the classroom setting and more on the role of diversity in higher education as necessary to overcome social inequality.

The cost-benefit approach implicitly used by the Grutter Court may minimise the societal benefits that stem from even less-than-critical-mass diversity, focusing as it does primarily on racial diversity as an aspect of the broader diversity that enriches classroom discussion and learning for all students. Inevitably, many teachers will find themselves discussing race issues with largely white classes. Without a critical mass of students of colour, they will always need to employ creative pedagogical strategies if they are to promote cross-racial understanding, dismantle stereotypes and better educate civic and public leaders.


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