DOES RACE MATTER IN EDUCATIONAL DIVERSITY?

A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012)

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS * by CHARLES E. DAYE, J.D. and A. T. PANTER, PH.D. THE UNIVERSITY OF NORTH CAROLINA, CHAPEL HILL WALTER R. ALLEN, PH.D. THE UNIVERSITY OF CALIFORNIA, LOS ANGELES LINDA F. WIGHTMAN, ED.D. THE UNIVERSITY OF NORTH CAROLINA, GREENSBORO1

This study received funding from the Law School Admission Council (LSAC). The opinions and conclusions contained in this article are those of the authors and do not necessarily reflect the position or policy of LSAC. 1 Charles E. Daye is Henry P. Brandis Distinguished Professor in the School of Law, University of North Carolina; A. T. Panter is the Bowman and Gordon Gray Distinguished Professor in the L. L. Thurstone Psychometric Laboratory and the Department of Psychology, University of North Carolina; Walter R. Allen is Allan Murray Cartter Professor of Higher Education and Distinguished Professor of Sociology, Graduate School of Education and Information Studies, University of California, Los Angeles; and Linda F. Wightman is Professor Emeritus and former Chair of the Department of Educational Research Methodology, University of North Carolina at Greensboro.

Electronic copy available at: http://ssrn.com/abstract=2101253

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Abstract

On February 21, 2012, the US Supreme Court granted certiorari in Fisher v. University of Texas at Austin that could lead it to re-examine the educational diversity rationale of Grutter v. Bollinger. Grutter upheld considering race in law school admission decisions to seek student diversity. We performed a ten-year study using interdisciplinary methodologies and drawing insights from law, psychology, sociology, and educational research methodology. In this article we report findings and address two empirical questions: (1) Do students differ by race upon entering law school? (2) Do any differences contribute educational benefits to students, institutions, or society? The short answer is that extensive quantitative and qualitative empirical data support the finding that a racially diverse law student body provides educational benefits for students, for their institution, and for society, especially if there is significant interaction among students from diverse backgrounds. We find that students differ in multiple ways upon enrollment in law school. Many of these differences are associated with diversities of backgrounds, experiences, perspectives, expectations, and outlooks that are related to their race. Many of the observed racial differences among students contribute to learning because differences foster richer interactions and positive educational outcomes that benefit students, institutions, and society. We find that race contributes to the achievement of educational diversity. In addition, under conditions of significant law school racial diversity and high intergroup contact during law school, graduating law students perceived their law school as more open and respectful of diverse ideas.

Electronic copy available at: http://ssrn.com/abstract=2101253

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS INTRODUCTION PART I. RACE, EDUCATIONAL DIVERSITY, AND THE JUSTICE QUESTION A. Prolegomenon B. Race and Admissions C. Educational Diversity and Justice PART II. ANALYZING RACIAL AND OTHER DIMENSIONS OF DIVERSITY A. Rationales for An Empirical Study of Race and Diversity B. The Theory of Diversity Constructs Diversity of personal background Diversity of family background Diversity of experience Diversity of perspective Diversity of educational expectations Diversity of career goals and aspirations C. Diversity Applied in Educational Settings D. Profiles of Diversity Respondents and Samples Baseline Sample Table 1. Comparison of Law School Attributes Focus Group Sample Three-Year Follow Up Sample E. Profiles of Diversity: Students Perspectives and Attitudes 1. Race Relations and Racial Issues Table 2. Race-Related Survey Items by Race and Gender 2. Discrimination Against Societal Groups Table 3. Perceived Discrimination Experienced in Society Today 3. Pursuit of Social Justice Table 4. Pursuit of Social Justice Governmental Domestic Programs and Expenses 4. Governmental Domestic Programs and Expenses Table 5. Funding for Federal Programs 5. Perceptions and Attitudes about Individual Rights by Race Table 6. Individual Rights Gay and Lesbian Rights Abortion Education Access Immigration National Defense and Patriotism F. Profiles of Diversity: Background Factors and Relationships 1. Diversity of Personal Background Table 7. Personal Background Factors 3

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Place of Birth Area in Which Student Grew Up Age Marital Status Religious Preference Spirituality Worked During Undergraduate Years Financial Responsibility for Self and Others Educational Debt Age When Seriously Considered Law School Specific Influences on Going to Law School Political Identification Income and Financial Responsibility 2. Diversity of Family Background Table 8. Diversity of Family Background Neighborhoods, Social Contacts, High School Diversity, and Friends Neighborhoods Academically Minded as Compared to Friends Parental Views on Ethnic Pride, Culture, Diversity, Bias, and Goals Parental views on ethnic pride Parental promotion of awareness of culture or history Parental talk about the value of diversity Parental talk about ethnic and cultural bias Parental Encouragement of Educational Goals Identification, Solidarity, Common Fate Identification with people of same racial or ethnic descent Closeness in feelings to other people of same racial and ethnic descent Desirability of spending time with people of the same racial and ethnic descent Perception that ones fate is intertwined with persons of same race or ethnic group Impact of common fate among those who perceive a common fate 3. Profiles of Diversity: Experiences of Discrimination and Coping (a) Experiences of Discrimination, Coping and Collegial Interactions Table 9. Experiences of Discrimination and Coping Discrimination in Daily Life Discrimination in Law School Admission Discrimination in Work Place Everyday Discrimination Coping With Adverse Racial Reactions (b) Collegial Interactions: Social and Educational Activities and Encounters Table 10 Discussion of racial issues Close friends from different racial/ethnic groups Date someone from a different racial/ethnic group 4

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Study with someone from a different racial/ethnic group Took an ethnic studies class Took a womens studies course Attended racial/cultural awareness programs Met with a faculty member outside of class Participated in an ethnic/racial student organization Held office in a student organization
Modify views on political issue

Interactions with Other Ethnic Groups Interactions with Influential Mentor 4. Profiles of Diversity: Expectations about Law School Table 11. Diversity of Educational Expectations Class time to discuss racial issues Diversity challenges all students to think Diversitys effects on abilities to work together Critical thinking enhanced by other points of view Benefits of racial diversity on campus Personal abilities enhanced by interactions with others from different racial/ethnic backgrounds Education enhanced from exposure to diverse points of view Cultural differences reflected in classrooms Expected effect of diversity among students (1) Diversity will enhance my learning and educational experiences (2) Diversity will improve my understanding and ability to work with others (3) Diversity will improve my ability to interact with diverse individuals in the profession after law school (4) Diversity will improve my ability to interact with diverse individuals in society generally after law school (5) Reasons for going to law school. (6) Appealing Work Settings (7) Race limitations after law school (8) Knowledge of the University of Michigan affirmative action cases PART III. ASSESSING THE EFFECTS OF RACIAL DIVERSITY ON EDUCATION A. Examining Educational Domains 1. Individual Domain 2. Institutional Domain 3. Societal Domain

B. Toward a Matrix of Interactions: Diversity Constructs and Educational Domains 1. Diversitys Direct, Derivative and Mediated Effects on Education 2. Diversity Factors as Affecting Goals, Actions, and Outcomes Table 12. Educational Domains, Diversity Goals Table 13. Educational Domains, Diversity Actions, 5

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) C. Table 14. Educational Domains, Diversity Outcomes Observed Effects of Race (and Other Characteristics) on Educational Diversity 1. Methodological and Background Reprise 2. Students Voices: Confirmation of Data 3. Findings Related to Race/Ethnicity and Gender (a) Observed Diversity Principally in Individual Domain (1) Sociopolitical Attitudes Affirmative Action Table 15. Affirmative Action Attitudes Perceived Discrimination against Societal Groups Table 16. Perceived Discrimination Experienced in Society Today Table 17. Social and Race-Related Attitudes (2) Personal Growth and Challenges Table 18. Law SchoolPerson Fit: (3) Students Voices on Individual Domain: Diverse World Views (b) Observed Diversity Principally in Institutional Domain (1) Views About the Law School Environment Perceptions of law school attributes Satisfaction with out-of-classroom law school experiences Table 19. Perceptions and Satisfaction with Outside-The-Classroom Law School Qualities: (2) Perceptions of Common Legal Cases Table 20. Common Legal Cases (3) Race-Related Experiences and Behaviors During Law School Social and academic intergroup interactions Table 21 Social and Academic Intergroup Interactions Everyday Educational Discrimination Table 22. Educational Everyday Discrimination (4) Race- and Diversity-Related Attitudes about Law School Table 23. Judgments on the Effects of Student Body Racial Diversity (5) Students Voices on Institutional Domain: Diverse Perspectives (c) Observed Diversity Principally in Societal Domain (1) Professional Plans and Meta-Judgments about Law School Professional Plans Law-School Meta-Judgments Table 24. Law School Meta-Judgments and Professional Plans (2) Students Voices on Societal Domain: Diversity in Practice and Life PART IV. FINDINGS, CONCLUSIONS, AND IMPLICATIONS OF FINDINGS A. Effects of Educational Diversity on Law Students Attitudes FIGURE 1. Final model FIGURE 2. The practical significance of racial diversity B. Implications of Findings about Educational Diversity C. Conclusion 6

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS INTRODUCTION Affirmative action is controversial. This is particularly true of admission in higher education. The Supreme Court in Grutter v. Bollinger approved as a compelling state interest judicious consideration of race to seek a diverse student enrollment when making law school admission decisions. Yet, the role of race in fostering educational diversity remains controversial with strikingly different claims that lie at polar extremes: either race is critical or race is irrelevant. The question and the claims have been insufficiently examined empirically. Our study, The Educational Diversity Project (hereinafter EDP), contributes information for the discussion. As an interdisciplinary research team, we derive insights from law, psychology, sociology, and educational research methodology from three different universities. We address two empirical questions. (1) Do students differ by race in identifiable ways when they enter law school? (2) If students present observed racial differences, do such differences contribute educational benefits to students, to institutions, or to society? We use a multi-method analysis. We make quantitative examinations of survey data from over 6,000 students who enrolled in a random representative sample of 50 ABA-approved United States law schools. We make a longitudinal examination of a subset of students using both focus group and survey data at graduation. This article consists of four parts. Part I examines the educational context of affirmative action and whether educational diversity finds support in justice principles. Part II identifies differences students present upon enrollment in law school and assesses whether relevant differences are associated with students race or other personal characteristics. Part III analyzes observed differences among students to assess whether differences have 7

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) educational relevance, and if so, whether differences are manifested in ways that support our understanding about the reasons for education. In Part III, therefore, we also analyze whether diversity may enrich the value of educations for the students enrolled, the educational institutions the students attend, or society. Part IV addresses fundamental conclusions and implications we believe our findings support. PART I. RACE, EDUCATIONAL DIVERSITY, AND THE JUSTICE QUESTION A. Prolegomenon Former United States Supreme Court Justice Sandra Day OConnor in 2010 called for more research and analysis into issues of diversity in education.2 As the author of the Courts opinion in Grutter v. Bollinger,3 Justice OConnors expression has greater significance than a retired Supreme Court Justices extra-judicial essay ordinarily might have. Grutter, as we know, is the 2003 affirmative action decision that approved judicious consideration of race when making law school admission decisions to foster diversity. In her 2010 essay, Justice OConnor stated that Many benefits flow from having a racially diverse student body in college and graduate and professional schools. This is an article of faith for many, but further social science research is needed in order to refine our appreciation of diversitys value and to enable us to balance the value of diversity against the cost of achieving diversity through race-conscious programs.4

Sandra Day OConnor & Stewart L. Schwab, Affirmative Action in Higher Education over the Next Twenty-five Years: A Need for Study and Action, in THE NEXT TWENTY-FIVE YEARS: AFFIRMATIVE ACTION IN HIGHER EDUCATION IN THE UNITED STATES AND SOUTH AFRICA, 58 73 (David L. Featherman et al. eds., 2010) [hereinafter THE NEXT TWENTY-FIVE YEARS]. 3 Grutter v. Bollinger, 539 U.S. 306 (2003). 4 THE NEXT TWENTY-FIVE YEARS, supra note 2, at 65 (emphasis added).

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) She urged that, [T]hought, study, and action are needed now.5 In 2002 the principal investigators of this study initiated the EDP and began a study of the kind Justice OConnor appears to have suggested.6 This article presents our findings, conclusions, and implications about race7 and educational diversity.8 B. Race and Admissions This report is about race9 and admissions.10 The concepts of affirmative action,

diversity and educational diversity are controversial.11 But the concept of educational diversity has come to be critical in determining whether the Constitution permits educational
5 6

Id. at 62. The Educational Diversity Project administered a survey instrument in the Fall of 2004 to over 8,000 entering students at over twenty five percent of the ABA-approved law schools in the United States at 64 ABA approved law schools. We report findings from our multistage random sample (n = 50 schools) in this article. See DAYE ET AL., THE EDUCATION DIVERSITY PROJECT: ANALYSIS OF LONGITUDINAL AND CONCURRENT STUDENT AND FACULTY DATA (2010), available at http://www.lsac.org/LSACResources/Research/GR/GR-10-01.asp [hereinafter DAYE ET AL., THE EDUCATIONAL DIVERSITY PROJECT (2010)] for information about the methodology employed in the study. 7 For a discussion of our reasons for limiting our analysis in this report primarily to race see Part II.A. infra text accompanying notes 36 48.
8 9

Other reports are available at http://www.unc.edu/edp/research_findings/documents/. For the purposes of this study, we use the term race as it is commonly and operationally viewed in America, in informal and social environments as well as in formal and legal settings. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U. S. 265, 287 (1978). Sometimes race is called an immutable characteristic. Id. at 360 ( Brennan, J., concurring in the judgment in part and dissenting in part). However, contrary to popular and historical conception, scholars today believe that race lacks a biological basis. We understand that even when race may have certain biological and physical attributes, the meanings assigned to racial classifications are socially constructed as opposed to biologically inherent and are constantly being redefined. See, e.g., Kenneth E. Payson, Check One Box: Reconsidering Directive No. 15 and the Classification of Mixed-Race People, 84 CAL. L. REV. 1233, 1239 (1996) (stating that most scholars link race to social constructs and not biology); Naomi Zack, American Mixed Race: The U.S. 2000 Census and Related Issues, 17 HARV. BLACKLETTER L.J. 33, 33 (2001) ("Race, however, is a social construction on all levels. Not only are the links between so-called biological race and culture the result of history, tradition, and current norms, but the existence of biological racial taxonomies is itself the result of such social factors."). See also, Elbert Lin, Identifying Asian American, 33 SW. U. L. REV 217 (2004) and Richard Delgado, Crossroads and Blind Alleys: A Critical Examination of Recent Writing About Race, 82 TEX. L. REV. 121 (2003). 10 The study reported here deals with only law school admission. While there may be similarities in the issues and concerns raised, see Gratz v. Bollinger, 539 U.S. 244 (2003), there may also be significant differences. See Parents Involved in Cmty. Sch. v. Seattle Sch.l Dist. No. 1, 551 U.S. 701, 703 (2007) (With respect to public schools the court said that Moreover, these cases are not governed by Grutter v. Bollinger, 539 U.S. 306, 328, 123 S.Ct. 2325, 156 L.Ed.2d 304, in which the Court held that, for strict scrutiny purposes, a government interest in student body diversity in the context of higher education is compelling). 11 We make no attempt here to visit all the arguments pro or con about affirmative action. That has been done already by others and appears not to have reached the terminal point of such efforts. Our discussion has a far more limited objective: connecting the major themes that appear to have become associated with the term affirmative action in the narrow legal context that arises when one considers and attempts to apply the analysis that arises out of the Grutter case. See Grutter v. Bollinger, 539 U.S. 306 (2003).

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) institutions to consider an applicants race when making admission decisions.12 The United States Supreme Court employed the concept of educational diversity in Grutter v. Bollinger.13 Grutter held that a state university has a compelling interest in seeking the educational benefits that flow from a diverse student body and it may pursue that interest through a narrowly tailored admissions system for a time-limited period.14 Questions involving race, diversity, and education are still being litigated in the courts.15 A long and difficult history preceded the judicial use of educational diversity to examine the limits of admissions criteria. The history reaches from ending slavery and extends in successive stages, first, to prohibitory affirmative action designed to stop racial discrimination, second, to compensatory affirmative action as a means of correcting for prior discrimination, and third, to modern affirmative action to pursue diversity in university undergraduate, graduate, and professional education. As important as discussion of the broader developmental issues would be

12

The Supreme Court has said that the constitutional constraints that apply only to public institutions would apply to any statutes that govern private institutions. Thus, regarding consideration of race, statutes such as in the Civil Rights Act of 1964, Title VI, 42 U.S.C. 2000d (governing nondiscrimination by private institutions that receive federal funds), and the post-Civil War provisions of 42 U.S.C. 1981 (governing nondiscrimination, inter alia, in the making and enforcement of private contracts) would impose the same obligations on private institutions and parties that the Constitution imposes on public institutions regarding consideration of race. Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (citing Regents of the Univ. of Cal. v. Bakke, 438 U. S. 265, 287 (1978) (Title VI proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment) and General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389-391 (1982) (the prohibition against discrimination in 1981 is co-extensive with the Equal Protection Clause). 13 539 U.S. 306 (2003). 14 Id. at 343 ([The Court] expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.). Justice OConnors 2010 extra-judicial remarks were, influential, as noted, because she wrote the opinion. In her 2010 remarks, Justice OConnor also observed, That 25-year expectation is, of course, far from binding on any justices who may be responsible for entertaining a challenge to an affirmative action program in 2028. Those justices will be charged as Lewis Powell was in Bakke in 1978, and as the Court was in Grutter in 2003 with applying abstract constitutional principles to concrete educational endeavors. THE NEXT TWENTY-FIVE YEARS, supra note 2, at 62 (emphasis added). 15 See, e.g., Fisher v. Univ. of Tex., 631 F.3d 213 (5th Cir. 2011) (holding that the University of Texas at Austin properly sought to pursue the goal of a diverse student body through an admissions process modeled upon but correcting for limitations on the Ten Percent Plan and other efforts to derive the educational benefits the Supreme Court identified in Grutter); and Coalition to Defend Affirmative Action v. Regents of the Univ. of Mich., 652 F.3d 607 (6th Cir. 2011) (declaring unconstitutional a Michigan state constitutional provision enacted by referendum that prohibited affirmative action, inter alia, in public education).

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) in providing additional context and meaning for the questions analyzed in this report, that discussion is not presented because it would unduly extend the length of this article. For readers who wish to examine the forms of affirmative action fully, please consult The Educational Diversity Projects website.16 We encourage readers to do so. C. Educational Diversity and Justice In a society that articulates affirmative action as diversity, can a quest for justice for Blacks find grounding in either the concept of compensatory justice or of distributive justice? The theory of John Rawls is that a discernible form of social cooperation and fairness must be attributed to a few principles of justice that are fundamental to any societys capacity to function.17 Rawls theory posits that fundamental principles are the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association.18 Legal and philosophical scholars theorize two forms of justice founded on principles characterized as compensatory justice or distributive justice. Compensatory justice, also referred to as corrective justice19 or as restitution,20 focuses on remediating members of society who have been victimized in the past by persecution and discrimination inflicted by the dominant majority.21 Distributive justice focuses on the allocation of goods or utilities within a society in a fair and equitable manner.22 Although distributive justice ordinarily refers to the distribution of public goods in a market

16

See Diversitys Roots and Routes: The Rugged Road for African Americans, supplement to DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS posted on the EDP website at http://www.unc.edu/edp/. 17 JOHN RAWLS, A THEORY OF JUSTICE 10 (Harvard Univ. Press 1999) (1971). 18 Id. 19 MICHAEL ROSENFELD, AFFIRMATIVE ACTION AND JUSTICE: A PHILOSOPHICAL AND CONSTITUTIONAL INQUIRY 30 (1991). 20 PETER SCHUCK, DIVERSITY IN AMERICA: KEEPING GOVERNMENT AT A SAFE DISTANCE 151 (2003). 21 Id. 22 ROSENFELD, supra note 19, at 29-42.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) context by political authorities,23 distributive justice analyzed in an affirmative action context could apply to the distribution of a limited number of seats in a law admissions class among the number of applicants who exceed the number of seats available in that incoming class. Diversity as a concept has been used in judicial decisions about higher education at least since the mid-Twentieth Century.24 In Sweatt v. Painter25 the Supreme Court held that a Black student excluded from admission by the University of Texas Law School because of his race had been denied equal protection of the laws notwithstanding that he could attend what was then an all-Black state-provided law school. A major component of the Courts reasoning in Sweatt was based on the diversity idea. The Court held that equal protection required that the law school Texas would let the Black plaintiff attend must provide him an education that was substantially equal to the education available to White students at the University of Texas Law School. The Court decided that the all-Black law school was not substantially equal, among other factors, because of its lack of diversity among the students enrolled in the all-Black law school.26 This was a prohibition of racial discrimination. It rested in part on the diversity idea and on a justice rationale of nondiscrimination. Regents of the University of California v. Bakke,27 decided in 1978, carved out a narrow

23 24

Id. at 30. See generally, SCHUCK, supra note 20, at 19-39. Schuck explores the taxonomies of diversity by introducing analytical distinctions that shape its understanding and suggest that it is context-sensitive. His analyses of the sources and effects of diversity go far beyond what is necessary for purposes of this study, but he certainly remains a leading authority on diversity's intellectual history, social valuations, and contemporary significance. 25 339 U.S. 629 (1950). The Fourth Circuit Court of Appeals similarly recognized the important value of diversity in the case that ordered the end to state exclusion of Black students from the law school at the University of North Carolina. McKissick v. Carmichael, 187 F.2d 949 (4th Cir. 1951), cert. denied, 341 U.S. 951 (1951). It was over half century ago that the Fourth Circuit Court of Appeals analyzed diversity as follows: It has been said that the heart of legal education is found in discussion with one's associates. The case system . . . is designed to compel the student to think for himself and to discover the legal principles underlying the decisions and to this end, to engage in discussion with his fellows in and out of the class room. It goes without saying that if he is exposed to the competition of minds of diverse types his mental processes will be stimulated and his outlook will be broadened. McKissick, 187 F.2d at 952 (emphasis added). 26 Sweatt, 339 U.S. at 635. 27 438 U. S. 265 (1978).

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) ground to hold that an applicants race could be used as a plus factor in university admissions to achieve diversity.28 But the Supreme Courts opinion was badly fractured with no majority for any position. Justice Powells opinion in Bakke was interpreted as expressing the Courts operational holding. It was seen as effectively limiting universities to implementing affirmative action through a diversity rationale.29 The diversity rationale again framed the issue that the Supreme Court addressed in Grutter of whether race could be used, and if so, how race could be used in admissions. Grutters result appears to limit consideration of race to achieving diversity for the benefits diversity brings to the educational enterprise. But Justice OConnor recognized that Grutter rested on a stronger foundation than only the utilitarian benefits the presence of diverse students would bring to the educational enterprise. Justice OConnor was explicit that there are underlying historical, remedial, and justice reasons why the Court permits consideration of race in pursuit of educational diversity.30 Justice OConnors position builds on the reasoning of Sweatt and Bakke. Affirmative action as remediation and affirmative action as justice cannot be stripped from decision-making involving race in the United States. Justice OConnor explicitly pointed out that, Context matters when reviewing race-based governmental action under the

28

Id. at 317. The Court discussed the Harvard College Program that had been in use thirty years at the time. (attaching an Appendix to the Opinion referring to an appendix to the Brief for Columbia University, Harvard University, Stanford University, and the University of Pennsylvania, as Amici Curiae 2-3) Id. at 316. 29 See, e.g.,, PATRICIA GURIN ET AL., DEFENDING DIVERSITY: AFFIRMATIVE ACTION AT THE UNIVERSITY OF MICHIGAN 101-103 (2004) ([C]ampus environments that foster interaction among students from varied racial and ethnic backgrounds promote the mental and psychological growth that is essential if young people are to move on to fulfilling lives. . . .It is through diversity on campus that they face change and challenge, the necessary conditions for intellectual growth and for preparation for citizenship in the diverse democracy that America is increasingly becoming.). 30 See generally SCHUCK, supra note 20, at 134-202 and ROSENFELD, supra note 19, at 29-42. Both authors engage in lengthy discussions involving major historical and contemporary rationales linked to common principles of justice that are often used as a means to justify educational diversity initiatives. These rationales include both a view of restitution or compensatory justice and a view of distributive justice principles.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Equal Protection Clause.31 She was clear that the Court considers the reasons the government is making distinctions based on race, and she pointed out that the demonstrated need for the governments action is not merely relevant, but critical. She wrote, Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decision maker for the use of race in that particular context.32 After pointing out that affirmative action admission as administered by the Michigan Law School, applied only to qualified underrepresented minority students, Justice OConnor set forth the answer to the question of why race was permissible as a plus factor. She emphasized that By virtue of our Nation's struggle with racial inequality, such students are both likely to have experiences33 of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.34 The fundamental factual grounding of the result is that race can be used as a plus factor for underrepresented minority applicants because historical racial inequality made it less likely that they would be admitted if race were not a plus factor. Thus, it seems indisputable that Grutter is grounded on the underpinning of our nations history of struggling with racial inequality. 35 Justice OConnor specifically explained that our history of racial inequality is the reason there is a need to consider an African American applicants race in order to achieve a reasonable diversity of students, including African Americans, in law schools.
31

Grutter, 539 U.S. at 327 (citing Gomillion v. Lightfoot, 364 U.S. 339, 343-344 (1960) an equal protection case holding that a legislative act redrawing a municipalitys town limits violated Black voters equal protection rights because all but four or five of some four hundred Black voters were excluded from the town limits while not a single White voter was excluded. This was an equal protection nondiscrimination case. It was about a justice rationale). 32 Id. at 327 (emphasis added). 33 Our survey has identified experiences as one of our investigational diversity constructs. See Part II. B. infra and text accompanying note 49. 34 Grutter, 539 U.S. at 338 (emphasis added). 35 This argument is not intended to ignore the Courts pointed discussion that the diversity in Michigans law school was not limited to race, but included other bases for diversity. See id. at 338-339.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) The constitutionally permissible goal is achieving diversity to support educational objectives. The Court understood that achieving the diversity goal requires understanding, accounting for, and taking remedial steps to reduce the present effects of a history of racial discrimination in our society. It seems clear that a justice principle underlies the reasoning that supports permissible affirmative action as diversity when we understand that the reason race may be considered a plus factor to admit qualified African Americans is that they would otherwise be disproportionately excluded because of our nations history of racial discrimination and racial inequality. PART II. ANALYZING RACE (AND OTHER FACTORS) AND EDUCATIONAL DIVERSITY A. Rationales for an Empirical Study of Race and Diversity As shown in Part I, it can be argued that affirmative action as diversity can support a justice rationale in much the same way that affirmative action as remediation can. Whether that argument is persuasive or not, Grutter, at the very least, permits an educational institution to consider applicants race in pursuit of its compelling interest in achieving diversity. Race therefore is central to further analysis.36 Our investigation takes as its burden gaining empirical insight into two fundamental questions: Whether, and if so, how Black students are different in significant ways from White students, and if differences exist, whether such differences contribute to educational diversity? As discussed in Part I, we employ the term educational diversity, as it is used by the United States Supreme Court, to refer to the educational benefits that flow from a diverse student body.37 Our study examines empirical evidence to determine whether there is a relationship between race and educational diversity and, if there is, to examine the characteristics
36 37

The term race is used here to include common racial and ethnic classifications. See supra note 10. Grutter, 539 U.S. at 343.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) associated with race and to assess the strength of those characteristics in fostering educational benefits. We see practical, analytical, jurisprudential, and justice reasons to make this empirical study. First, as a practical matter, the Supreme Courts Grutter38 decision, affirming that race may be a plus factor in educational admission decisions, did not end controversy, conflict, or political agitation about the role of race in America or even in the more limited context of educational admissions decisions. Notwithstanding Grutter, indeed because of it, debate still rages with strident political39 agitation and academic40 arguments against consideration of race in university admissions. Justice Scalia, one of the dissenting Justices, set forth issues that subsequent suits may challenge, including whether any educational benefits flow from racial diversity or the bona fides of the institutions expressed commitment to the educational benefits of diversity.41 Moreover Justice OConnor, the author of the Grutter decision, as already discussed,42 pointed out that, [F]urther social science research is needed in order to refine our appreciation of diversitys value.43 Second, as an analytical matter, proponents and opponents make starkly contrasting claims about race and diversity in higher education. Proponents argue that racial diversity is critical to assure diversity of experience, perspective, expectations, and values in U.S. higher education.

38 39

539 U.S. 306 (2003). See, e.g., Peter Schmidt, Foes of Affirmative Action in Michigan Plan to Take Their Battle to the Ballot, CHRON. HIGHER EDUC., July 9, 2003, http://www.utwatch.org/oldnews/chron_affaction_7_9_03.html (reporting on political plans). 40 Richard H. Sander, A Systemic Analysis to Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004); PETER WOOD, DIVERSITY: THE INVENTION OF A CONCEPT (2003); Abigail Thernstrom & Stephan Thernstrom, Secrecy and Dishonesty: The Supreme Court, Racial Preferences and Higher Education, 21 CONST. COMMENT. 251 (2004). 41 Grutter, 539 U.S. at 348-9 (Scalia, J., dissenting). Justice Scalia sets forth a laundry list upon which to seek clarification and to challenge various particular plans. Pointedly he says, "Other lawsuits may focus on whether, in the particular setting at issue, any educational benefits flow from racial diversity." Id. at 348 (emphasis added). 42 See Part I.A. supra and text accompanying note 2. 43 See THE NEXT TWENTY-FIVE YEARS, supra note 2, at 62.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Proponents claim that such diversity improves education for all students.44 In contrast, opponents claim that race is irrelevant. Opponents argue that all Blacks do not think alike and that a persons viewpoint is not determined by race.45 The claims share a common deficiency. They are based on speculation that is not substantiated by empirical evidence. The issue of color, thus, remains controversial in the United States.46 Third, as a matter of jurisprudential theory, the Grutter decision may be seen as accepting the following decisional syllogism: Major premise: An educational institution has a compelling interest in achieving the benefits of educational diversity. Minor premise: Racial diversity contributes to educational diversity. Conclusion: Therefore, race may be considered as a plus factor in selecting students for admission (so long as race is used in a narrowly tailored, time-limited system). The major premise focuses on constitutional and jurisprudential questions which Grutter recognized are informed by our Nation's struggle with racial inequality.47 Educational

diversity is needed to further our highest national interests to educate workers for an increasingly diverse domestic workforce, to prepare qualified professionals for an increasingly diverse

domestic society, to compete effectively in a global business world, to enable our military to carry out its mission of national security, to sustain our political and cultural heritage and thereby maintain our society, and to work toward achieving our highest aspiration our dream of one

44

See Brief for Respondent at 2-4 Grutter v. Bollinger, 539 U.S. 306 (2003); See generally, Derek Black, The Case for the New Compelling Government Interest: Improving Educational Outcomes, 80 N.C. L. REV. 923, 943947 (2002) (identifying and discussing research on the benefits of diversity in education). 45 See Brief for Petitioner at 6-9 Grutter v. Bollinger, 539 U.S. 306 (2003). 46 See DAVID LEVERING LEWIS, W. E. B. DUBOIS: BIOGRAPHY OF A RACE 1868-1919 279 (1993). DuBois spoke at the dawning of the Twentieth Century but his words have meaning even at the dawn of the Twenty-First Century. See generally, THOMAS C. HOLT, THE PROBLEM OF RACE IN THE 21ST CENTURY (2000). 47 Grutter, 539 U.S. at 338 (emphasis added).

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Nation, indivisible.48 Given the major premise, the logic of the syllogism rests upon the truth of the minor premise that racial diversity contributes to educational diversity. After Grutter, therefore, research tasks remain. These tasks include setting out a more articulated conceptualization of educational diversity, examining empirically with quantifiable data and qualitative insights whether race contributes to that diversity, and if race does contribute, analyzing how any contribution race makes is manifested. A clearer understanding of these issues is essential to explain how considering an applicants race supports permissible educational objectives that an institution may pursue consistently with constitutional limitations. Part II and Part III address these questions. Fourth, if our argument that justice underlies using affirmative action to achieve diversity is persuasive, then the justice reason for our study becomes apparent. If the diversity rationale is supported by affirmative action as nondiscrimination and by affirmative action as remediation, diversitys successful implementation will contribute to the achievement of a better life for African Americans and other minorities by removing some of the continued debilitating effects of our nations history of discrimination. If we succeed in removing racially-correlated burdens and exclusions, we liberate members of these disadvantaged groups to achieve their highest potentials and therefore to make their fullest contribution to our nations progress that will benefit everyone. Accordingly, determining whether the affirmative action as diversity rationale finds support in empirical data becomes a task that could further the pursuit of justice in America. B. The Theory of Diversity Constructs

48

Id. at 332.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) First, we will examine whether students race (or selected other definable personal characteristic49) is associated with attributes that contribute to educational diversity. We identify six educational diversity construct areas in which diversity may be examined. We examine diversity of: personal background; family background; experience; perspective; educational expectations; and, career goals and aspirations. We use the following definitions for these six diversity construct areas: Diversity of personal background includes gender, race, geographic origin, marital status, religion and spirituality, education, work experience, and economic status. Diversity of family background includes demographic and social factors such as family size, socio-economic status, culture, customs, and traditions that influence students perceptions and interpretations of events in ones life. Diversity of experience refers to positive and negative life experiences that each student brings to the classroom and the campus. These might include exposure to a variety of customs, cultures, and perspectives as well as experiences of prejudice and disadvantage that might influence a students perspective on the social order. Diversity of perspective includes, among other things, differences in values, beliefs, conceptions of the world, and political orientation. It has been persuasively argued that a group of students whose members hold different beliefs about what is important, worthy, beautiful and good in life will be more likely to discover for themselves the depth and interminability of the disputes in which human beings find themselves entangled than a group of students whose

49

Other definable personal attributes include family background, ethnicity, gender, economic statues, and geographic origin. We collect data using other demographic, ethnic, and gender factors as well as other identified items that may allow insights into the relationship of diversity to attributes other than race. As stated earlier, this report primarily addresses race.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) members share values that are homogenous within the group.50 Diversity of educational expectations refers to predispositions that students bring to both curricular interpretations and classroom interactions. These predispositions will be manifested in rates of class participation, the way that assignments and class projects are prepared and presented, and whether students participate in study groups, class project groups and other study/social interactions. Diversity of career goals and aspirations ties differences in reasons for pursuing higher education to different foci that students bring to issues. These items collect data about the ways students foresee that their educations will be beneficial to themselves or to their communities after they leave the formal educational setting. C. Diversity Applied in Educational Settings In educational settings many diversity questions can be explored. How will students perspectives affect what they observe? How will students interact with each other and in various environments? What challenges will students perceive? What groups will students join? What speakers will student groups invite or go to hear? Who will be or become the friends students make? What antagonistic relationships and events will students experience? What kinds of institutional actors and citizens will students turn out to be as a result of what goes on during the three years of law school we observe? It has been suggested that only certain topics have content that would be affected by differences in perspective. For example, investigators on this report have heard comments such as Biology would not be a course in which student diversity could matter. We do not concede that proposition. We think it is demonstrable that educational diversity is not limited to the

50

Anthony T. Kronman, Is Diversity a Value in American Higher Education?, 52 FLA. L. REV. 861, 867 (2000).

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) contents of subjects. Diversity is manifested in the perceptions one brings to the observation of an event or stimulus and in the interactions individuals have with each other. One can concede that in Biology class neither the anatomy nor the organs of a frog dissected will vary according to whether the dissector is Black or White or whether racially distinct or diverse dissectors of frogs work together or separately. But, one does not relinquish the proposition that if the dissectors work together and have diverse perspectives, they might learn something about each other while dissecting the frog. For example, if the frog turns out to be deformed from exposure to a polluted environment, the students, if diverse in their perspectives, might just have something to share about governmental environmental regulation, the implications for humans of environmental poisoning, and the amount of costs we ought to impose on those who would pollute the environment such that frogs are deformed. At a deeper level, if a student has never before interacted with a student who has the codissectors personal characteristics, family background, or life experiences, not to mention having never before worked jointly with such a student, the students might both come away from the frog dissecting exercise not only with a new appreciation of frog entrails, but profoundly affected by the experience of working with a person who imparted different perspectives with whom they were never that close to before. One does not seem to have an intolerable burden to suggest that some courses in law school are ready candidates in which student diversity would matter. Criminal law and constitutional law are fairly easy candidates. But we believe any course has a need-for-diversity potential. Property courses might raise issues of restrictive covenants which were used to exclude minorities or might present cases of conduct that raise issues of fair housing laws. Contracts courses might raise issues of unfair terms that exploit the poor. Civil procedure might raise

21

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) issues, for example, of how to serve judicial notice on persons, some of whom might be disproportionately poor (among whom minorities are overrepresented), whose living arrangements are not stable or who are homeless, or who do not subscribe to newspapers that carry legal notices or that announce class action settlements of cases. Torts might raise issues that one element of personal injury recovery is based in part on lost income which means that persons who are injured who have lower incomes than White men, which includes a disproportionate number of minorities, cannot recover the same as a higher income White man even though both suffered the same kind of physical injury and could not work for identical periods of time. In any event, law cannot be cabined in a society where interests differ, impacts differ, consequences differ, and considerations differ because law, at least in America, is pervasive. Differences of perspective will reflect the myriad ways law affects persons in a society formally committed to the rule of law. No less an influential speaker than Justice Oliver Wendell Holmes observed that The life of the law has not been logic; it has been experience.51 In some respects, perhaps a fundamental respect, we can assess the likelihood of relevant difference that will contribute something to learning. The heart of the matter might deal with perspectives. That is where we will start our analysis. In making our analysis we will note relations between perspectives and other areas of the survey. Our hypothesis is that students personal background and family background will influence the students experiences. Students experiences, in turn, will influence their perspectives. Perspectives influence expectations for the educational setting, and combined with other factors the educational setting will influence career aspirations. D. Profiles of Diversity: Respondents and Samples

51

OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1981).

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Our analyses are based on a multistage, random sample of 6,100 students from a random sample of 50 ABA-Approved law schools, with an oversampling of law schools with high minority student representation. We followed these individuals over three years of law school. A subsample of these individuals participated in focus groups and completed a web survey at graduation. Baseline Sample. The law schools reflected 27% of law schools at time of the sampling, and they match the geographic distribution of law schools. Analyses of the selected law schools for this sample related to the entire set of ABA-Approved law schools in the U.S. showed similarity on all law attributes (e.g., tuition, size, student-faculty ratio, percent private institutions, selectivity, median undergraduate grade point average, median LSAT score, faculty minority representation), except racial student composition, the dimension on which we oversampled.52 The baseline sample was 9.8% African American, 8.5% Asian, 8.5% Mexican American, 2.4% Latino/a, 8.8% Multiracial (3.1% Multiracial of Color; 5.7% Multiracial White), 68.0% White. Our analyses in this article focus on observed differences and similarities between the Black students and White students, as well as gender. Fifty-two percent (52.1%) of the students were women. They were 25.41 years of age (SD = 5.15 years; range = 18 to 61 years), 46.0% liberal, 95.0% heterosexual, 5.1% international, and 61.7% of the students grew up in families that had an income under $100,000. About a quarter of the sample was either Catholic (26.2%) or Protestant (23.9%), and 13.1% of the sample indicated no religious affiliation. Students graduated from 837 colleges and universities.
52

For further detail about the EDP baseline sampling see PANTER ET AL, AN EMPIRICAL STUDY OF THE RELATIONSHIP BETWEEN RACE AND EDUCATIONAL DIVERSITY IN U.S. LAW SCHOOLS: THE EDUCATIONAL DIVERSITY PROJECT (2007), available at, http://www.unc.edu/edp/research_findings/documents/EDP%20Baseline%20Survey%20Diversity%20of%20Attitud es%2006-07.pdf [hereinafter PANTER ET AL.,THE EDUCATIONAL DIVERSITY PROJECT (2007)].

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 1 provides additional characteristics of the students as well as the institutions from which they were drawn.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 1. Comparison of Law School Attributes for all ABA Law Schools and the EDP Sample 2004-2005 American Bar Association Data (N = 182) Variable Tuition Enrollment (Total Full-Time Students) Student-Faculty Ratio First-Year Full-Time Minority Students (Percent) Percent Accepted (selectivity) Median LSAT Score Median Undergraduate Grade Point Average Mean $21,008.51 636.32 16.50 21.58 27.25 157.67 3.39 SD $9,165.68 266.52 3.53 12.76 9.36 5.14 .19 Fall 2004 EDP Baseline Sample (N = 50) Mean $19,745.52 618.38 16.75 26.25* 26.96 156.16* 3.35* SD $8,687.71 262.32 3.58 18.42 8.16 4.92 .19

Note. EDP means marked with an asterisk are statistically significantly different from corresponding mean population values of ABA-approved law schools at the p < .001 level.

Focus Group Sample. As a way to recognize the complexity of student attitudes and provide a nuanced view to our quantitative baseline data, the EDP conducted focus groups with a subset of baseline survey respondents during the second semester of each year of law school. These data provide a context for rich interactions, feelings and perceptions, as well as behaviors during their law school years from the beginning until they approached graduation. Each year we oriented our focus groups with a different theme (Year 1: diversity in law school now versus undergraduate and analysis of legal cases during the first year; Year 2: relationship with faculty, mentoring, and views about how the second year was going). The Year 3 focus group protocol centered on global assessments of the law school experience, especially with respect to the students evaluation of student diversity, diversity of relationships formed during law school that may last over time, expectations about the future as to their career, contact with law students, Bar Passage, and the extent to which law school met their expectations in academics, intellectual life, and interpersonal relations. 25

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Three-Year Follow-Up Sample. At the EDP baseline assessment in Fall 2004, respondents were asked whether they would be willing to be re-contacted by the EDP research team at a later point during law school. 64.4% of the respondents in the EDP sample (N = 3,928) agreed to allow the EDP research team contact them again. We had working email addresses for reasonable email contact address for 90.1% of them (n = 4,738). We were aware that some email addresses were no longer valid at the start of the study; for others, we learned this information due to the information we received during the study. We had confirmed status from 61.3% of the students who agreed to be re-contacted by our research team and had a working email address (N = 2,906). Out of these individuals, (a) 78.3% completed our web survey (N = 2,274); and (b) 21.7% were confirmed to be no longer enrolled in that law school. The law school registrars at the 50 law school in the EDP sample provided information about student enrollment status at the time of the study. We confirmed enrollment at graduation for 100% of the students whom we intended to re-contact from the EDP assessment. Study participants from the follow up sample were 57.1% women and an average age of 25.87 years (SD = 5.48 years). The sample was 72.1% White, 8.2% Multiracial, 7.3% African American/Black, 7.1% Asian/Pacific Islander, and 4.9% Hispanic/Latino/a.53 More than half of the sample was never married (54.2%) and the remainder was married or cohabiting (41.3%), divorced (3.3%) or separated or widowed (1.1%, .1% respectively). About 15.5% of the sample indicated that they had children.54 The constructs examined in the EDP baseline survey included: student background, family
53

We use the terms Black and African American interchangeably in this work. Our definition of Multiracial includes respondents who marked two or more major racial/ethnic categories (Black, Asian/Pacific Islander, Hispanic/Latino, or White). In other analyses we show that Multiracial White respondents and Multiracial of Color respondents have differential responding but due to the number of Multiracial respondents in the sample at Year 3 we combine the two designations into one group here. We capitalize all racial/ethnic groups throughout this report as recommended by the AMERICAN PSYCHOLOGICAL ASSOCIATION PUBLICATION MANUAL (6th ed. 2009). 54 For further detail about the EDP follow-up sampling see DAYE ET AL., THE EDUCATIONAL DIVERSITY PROJECT (2010), supra note 6.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) background, perspectives and attitudes, experiences, educational expectations, and career aspirations. All findings presented in the following sections statistically account for the clustering of students within law schools in the sample. In general, we summarize findings for presentation in figures. Statistically significant differences by race are noted for men and women. E. Profiles of Diversity: Students Perspectives and Attitudes If all students came to law school with the same or even uniformly similar perspectives and attitudes, for starters it is fair to observe that law school would likely be a less interesting, if not fundamentally boring place. From the vantage point of our study, uniform similarity might not offer much to exchange during the students interactions with each other that could potentially influence each others views of the world. Happily that unrealistic outcome is merely hypothesis. It is intuitive to everyone and empirically demonstrable that people see things differently. That may be taken as given, we think. Our tasks are to identify some relevant areas of difference, to examine whether there is variance by race that accounts for differences in students perspectives and attitudes, and to explore how those differences might have educational meaning in a law school environment. As noted above, diversity of perspective includes, among other things, differences in values, beliefs, conceptions of the world, and political orientation. The perspectives section of the survey asked students to express their attitudes and beliefs concerning items covering a range and depth of topics from race relations in general, to specific governmental policies, and to social welfare, including discrimination in various contexts and involving different groups. The goal of the attitude and perspective section of the survey was to obtain a snapshot view of the general socio-political beliefs students held when arriving at law school. We asked about attitudes in a number of different areas, grouped the items by content, and analyzed these data in

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) multiple ways. These findings are based on analyses that statistically account for the dependency of responses that exists when students attend the same law school. In the next sections we summarize findings by race/ethnicity and gender groups in a series of tables organized by substantive domain. Areas of both variance and lack of variance can be seen in law students belief systems and experiences as reported at entry into law school (baseline data collection) and then at graduation (Third-Year data collection). In the tables that follow, we present percentages, adjusted the clustering by law school, by race (White, Black) and gender (men, women). In these tables, the first column of each table has a specific interpretation. A law school class with only White male students might be expected to have percentages reflected in the first column. That is, these percentages reflect what the expected attitudes, experiences, beliefs, and perspectives would be if students of traditionally under-represented racial/ethnic groups and women were not included in a law school class. Second, we report inferential findings for gender, race, and the gender by race interaction for multilevel generalized linear models that account for both the measurement level of the survey items (typically dichotomous or ordered categories), as well as the clusters in this sample due to law school. Each inferential model that we tested includes the main effects for gender and race, the two-way interaction for the gender by race interaction, law school site (Level 2), in addition to a number of other student characteristics (Level 1; age, family income growing up, verified LSAT score, and liberal political orientation.) We focus on race, gender, and their interactions given the focus of this article. 1. Race Relations and Racial Issues Table 2 presents the percentages by race and gender for several race-related attitudes involving affirmative action, the governmental role and responsibility to provide special

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) treatment to Blacks, the importance of pursuing equality, and items related the general state of race relations in the U.S.

Table 2. Race-Related Survey Items by Race and Gender Survey Item Special Treatment Government should only attempt to ensure that people have equal opportunity, but it should not attempt to enforce equal outcomes. * Because Irish, Italians, Jews, and many other minorities overcame prejudice and worked their way up, Blacks should do the same without any special favors. * The law should allow consideration of race in university admissions decisions. * Some people believe that Blacks have been discriminated against for so long that the government has a special obligation to help improve their living standards. Others believe the government should not be giving special treatment to Blacks. (Percent Has a Special Obligation to Help Blacks) *x Race Relations Race relations in the United States are getting(Percent Better at a Slow Pace, Better at a Fast Pace) * How would you rate the state of race relations in the United States these days? (Percent Good, Very Good) * Men White Black Women White Black

68.8

38.3

55.4

19.2

31.0 27.9

6.6 79.0

20.9 30.6

4.1 75.9

27.6

76.2

32.6

82.5

66.7 28.8

50.0 12.0

59.0 18.3

32.3 5.9

Note. All items were measured on a five-point, ordinal scale. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the six multiple comparisons was p-value of .05 was .008. Table entries show combined top two categories. Some items (Government Should Ensure Equal Opportunity, Blacks Should Achieve Like Other Groups, and Affirmative Action) ranged from Strongly Disagree (1) to Strongly Agree (5). Changing Race Relations in the United States ranged from Worse at a Fast Pace (1) to Better at a Fast Pace (5). The state of race relations in the United States ranged from Very Bad (1) to Very Good (5). Governmental Obligation to Help Blacks ranged from Should Not Be Giving Special Treatment to Blacks (1) to Has a Special Obligation to Help Blacks (5).

The findings show that White students were significantly more likely than Black students to agree that the government should only attempt to enforce equal opportunity but not outcomes, that race relations in the United States were getting better, that the race relations were good or very good, that Blacks do not deserve any special favors because other minorities overcame

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) prejudice in the past without special favor.55 Black students agreed more than White students that the Supreme Courts decision in Grutter, that the law should allow the consideration of race in university admissions decisions and that the government has a special obligation to help Blacks. 2. Discrimination against Societal Groups The EDP baseline survey assessed participants perceptions of discrimination experienced by 18 different groups in our society today using a scale ranging from None at All (1) to A Great Deal (4).56 For the purposes of digesting the set of societal groups, we examine them in three major groups: (1) Racial Minorities; (2) Social Groups; and (3) Religious Groups. It was hypothesized that the endorsement or denial of societal discrimination against racial/ethnic minorities is diagnostic of a respondents judgment about the struggles of certain groups and about policies and laws reflecting these struggles.

55 Some of these views are sometimes referred to as symbolic racism. See P. J. Henry & David O. Sears, The Symbolic Racism 2000 Scale, 23 POL. PSYCH. 253, 253-283 (2002) and David O. Sears & P. J. Henry, Over Thirty Years Later: A Contemporary Look at Symbolic Racism and Its Critics, 37 ADV. EXP. SOC. PSYCH. 95, 95-150 (2005). 56 Items were drawn from TOM WILLIAM SMITH ET AL., TAKING AMERICA'S PULSE III: INTERGROUP RELATIONS IN CONTEMPORARY AMERICA, (2006), available at, http://books.google.com/books/about/Taking_America_s_pulse_III.html?id=GxTuAAAAMAAJ.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 3. Perceived Discrimination Experienced in Society Today: Percentage Endorsing A Great Deal by Race and Gender Men Women Survey Item White Black White Black Racial Minorities Blacks * 36.2 80.8 46.7 81.6 Hispanics/Latinos * 22.7 57.3 32.2 58.8 American Indians/Native Americans * 18.5 40.0 23.7 40.9 Asians * 3.5 9.9 6.1 11.1 Social Groups Gays and Lesbians * 62.2 83.2 73.5 81.3 People on welfare * 35.6 75.1 50.7 76.5 People who are poor * 31.8 80.0 45.7 79.3 Immigrants * 29.7 56.6 44.0 63.8 People with disabilities * 13.9 30.4 26.6 39.8 Older adults 6.1 12.6 14.0 21.2 Women *x 6.7 32.8 14.5 28.9 Religious Groups Muslims*x 59.2 79.4 68.2 68.6 Fundamentalist Christians 12.8 11.3 12.7 6.5 Jews 8.6 14.2 6.6 11.8
Note. All items were measured on a four-point, ordinal scale. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the 14 multiple comparisons was p-value of .05 was .004. Items ranged from None at All (1) to A Great Deal (4).

As seen in Table 3, our key finding is that African American students compared to White students perceived significantly greater discrimination for all of the societal groups with the exception of older adults and two religious groups (Fundamentalist Christians and Jews). In these analyses we also observe a gender effect such that in nearly all cases women perceive greater discrimination than men. 3. Pursuit of Social Justice To assess attitudes toward socio-economic mobility in the United States and the governments role in guaranteeing the existence of such mobility, participants responded to questions about current social justice concerns, as shown in Table 4. These agreement percentages show that Black students were significantly more likely to endorse social justice concerns as a critical need in American society and less likely to agree that all U.S. citizens have 31

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) equal opportunity for economic success. Black students, compared to White students, were more likely to report that the police treated one or more races unfairly in their community and were less likely to believe that the government should have access to the personal records of all U. S. citizens or have the right to detain citizens without a lawyer for the purpose of national security. However, Black students were equally likely as Whites to agree that rehabilitation is more effective than long incarceration for minor drug offenses and that being at the bottom of the economic scale is not a function of laziness. Table 4. Pursuit of Social Justice: Percentage Strongly Agree or Agree by Race and Gender Men Women Survey Item White Black White Black Social Justice The pursuit of social justice is a critical need in American society. * 70.6 90.7 74.1 84.5 Governmental benefits such as healthcare and welfare should be an entitlement for all American citizens. * 57.8 79.5 67.9 81.0 In the U. S., the interests of ordinary, hardworking citizens are not adequately represented in the political process. * 53.3 77.2 56.0 80.1 Economic Success/Individualism In America today, every person has an equal opportunity to achieve economic success. * 25.7 12.9 22.9 12.6 People at the bottom of the economic scale are probably lazier than those at the top. 10.7 7.0 5.1 2.5 Criminal Justice Concerns Rehabilitation is more effective than long incarceration for minor drug offenses. 81.3 80.6 83.5 85.0 I believe that the police in my community tend to treat one or more races unfairly. * 31.2 60.7 36.5 61.5 To combat terrorism, the American government should have access to travel, credit, and medical records of all U. S. citizens. * 19.9 11.5 15.2 11.2 To meet the heightened security needs of our country, the United States should have the right to detain individuals without providing access to lawyers and/or pressing formal charges. * 12.9 3.3 7.2 6.5
Note. All items were measured on a five-point, ordinal scale ranging from Strongly Disagree (1) to Strongly Agree (5). Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the nine multiple comparisons was p-value of .05 was .006.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) 4. Governmental Domestic Programs and Expenses The baseline survey also assessed student opinions regarding how they would choose to allocate federal money toward three types of federal government programs (domestic programs, homeland security initiatives, and military aid). They were asked if a range of programs should be Cut Back, Kept about the Same, or Expanded. As seen in Table 5, Black students were significantly more likely than White students to believe that domestic government spending should be expanded (education, healthcare, violence/crime programs, and social security). Race did not significantly predict students attitudes about homeland security initiatives or military aid spending. A gender effect emerged such that women favored expanded funding to domestic spending programs, while men favored expanded funding to homeland security and military aid spending. Table 5. Funding for Federal Programs: Percentage Expanded by Race and Gender Men Women Survey Item White Black White Black Domestic programs Aid for education * 81.5 96.7 89.9 97.9 Health care * 67.7 93.4 82.0 96.9 Programs to combat violence and crime * 51.6 74.7 60.6 74.5 Social Security * 40.9 76.0 59.1 83.1 Homeland Security Initiatives Gathering intelligence information about other countries 53.3 41.2 29.6 19.6 Homeland security 41.7 43.3 29.8 34.6 Military aid Defense spending 23.3 19.4 15.3 13.4 Economic aid to other nations 23.1 18.8 21.5 16.2 Military aid to other nations 5.3 4.6 3.2 4.3
Note. All items were measured on a three-point, ordinal scale ranging from Cut Back (1), Kept About the Same (2), or Expanded (3). Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the nine multiple comparisons was p-value of .05 was .006.

5. Perceptions and Attitudes about Individual Rights by Race The law students also provided their opinions on social attitudes, educational access, and 33

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) policies related to immigration and national defense, as shown in Table 6. Table 6. Individual Rights: Percentage Strongly Agree or Agree by Race and Gender Men Women Survey Item White Black White Black Social Attitudes Gay and lesbian couples should receive the same rights and benefits that heterosexual couples receive for: Health Care 79.1 75.5 86.8 72.4 Pension Coverage 77.9 73.4 84.9 71.6 Parental Rights 59.5 47.8 77.3 50.0 Legal Marriage 58.7 46.7 72.7 42.3 Abortion (Percent A woman should always be able to obtain an abortion as a matter of personal choice) 51.4 57.7 67.8 65.0 People should marry other people from their same racial and ethnic group. 7.8 12.6 5.8 14.9 Education Access I believe that the college admissions process is fair with respect to: Family Background 36.8 27.7 39.6 24.4 Economic Status 35.9 27.7 36.6 21.0 x Race 29.0 33.7 31.3 19.5 There are always some people whose ideas are considered bad or dangerous by other people. Consider a person who believes that Blacks are genetically inferior. Such a person should be allowed to teach in a college or university. 23.6 19.3 13.8 12.1 Immigration Government benefits should be available to nondocumented immigrants. 14.3 20.7 20.2 22.5 Immigrants today are a burden on our country because they take our jobs, housing, and healthcare. 11.9 12.0 10.3 10.9 National Defense and Patriotism A citizen should be allowed to burn the American flag as an expression of free speech. 62.9 52.2 55.0 39.2 The President of the United States sometimes has to make tough decisions about war and should be supported in those decisions.* 41.7 20.5 34.1 14.1 The United States should employ military force to bring democracy to societies dominated by dictators. * 17.5 4.3 9.7 4.3

Note. All items were ordinal. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the 16 multiple comparisons was p-value of .05 was .003. All items ranged from Strongly Disagree (1) to Strongly Agree (5), with Agree and Strongly Agree tabled, except for the four-point Abortion item (ranging from Abortion should never be permitted to A woman should always be able to obtain an abortion as a matter of personal choice).

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) In the area of social attitudes, race was not associated with viewpoints on abortion. However, in social attitudes about gay/lesbian rights, Black students were generally less likely than White students to agree that gay and lesbian couples should receive the same rights as heterosexual couples. Black students were also more likely than White students to believe that people should marry other people from their same racial and ethnic group. Regarding access and fairness in education, Black students were less likely to believe that the college admissions process is fair with respect to race, economic status, and family background. Black students also were less likely than White students to support the idea that professors with negative views about Blacks should be allowed to teach in a college or university. Race was not associated with predicted student viewpoints related to immigration and national defense. In conjunction with collecting participants general views on race relations in the United States, students were asked to indicate their beliefs regarding the state of immigration laws after September 11th, 2001 (the date of the terrorist attacks on the World Trade Center and the Pentagon). The responses indicated that African American students were only slightly more likely to restrict Arab and Muslim immigration than White students. This difference by race was also not statistically significant. National Defense and Patriotism. When asked various questions about national defense, Black students, on average, were less likely to agree that the United States should employ military force to bring democracy to societies dominated by dictators, and Black students were also less likely to agree that tough presidential decisions regarding war should be supported. Additionally, student attitudes about patriotism were assessed, and Black students were less likely to think that a citizen should be able to burn the American flag as an expression of free

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) speech. F. Profiles of Diversity: Background Factors and Relationships 1. Diversity of Personal Background Table 7 summarizes differences in respondents personal background upon arriving at law school in areas such as geographic origin, marital status, political views, religion and spirituality, education, work experience, income, and financial responsibility. Black students were equally likely as White students to have been born in the United States or to be married. Black students were more likely than White students to have grown up in a very large city (over 1 million), to be Protestant, and to report being spiritual. They reported being at younger age than White students when they first seriously considered attending law school. Regarding economic standing and finances, most students in the sample reported that they were financially responsible for themselves, with a higher percentage of Black students being responsible than Whites, although not significantly so. Black students owed nearly twice as much for educational debt compared to White students (in the $20,000 to $30,000 range). A higher percentage of White students compared to Black students reported that during their high school years their familys income was Over $100,000 and was Above Average to Far Above Average related to the average family in the United States. During their undergraduate years, both Whites and Blacks report having worked 20 hours or more during their undergraduate years.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 7. Personal Background Factors by Race and Gender Survey Item Background Factors Born in United States Setting Growing Up Suburbs Small Town Small City (Under 1 Million) Rural Large City (Over 1 Million)* Moved Around a Lot Age Considered Law School (Over 18 years) * Married Beliefs Political Orientation (Percent Extremely Liberal, Liberal) *x Spirituality (Very Spiritual, Extremely Spiritual) Religion Catholic x Protestant * Atheist or Agnostic * No Religious Preference Jewish Nondenominational/Other Christian Income and Financial Responsibility Financially Responsible for Self Family Income, Dollars (Over $100,000) * Worked during Undergraduate Years (20 hours or more/week) Family Income, Rating (Above Average, Far Above Average)* Had Educational Debt (Over $10,000) * Financially Responsible for Others Men White Black 96.2 36.2 19.1 18.1 10.7 10.7 5.2 76.7 23.6 88.8 19.5 13.5 23.2 9.7 25.4 8.6 59.9 16.0 Women White Black 95.1 31.4 22.2 17.5 12.1 10.6 6.2 71.6 15.8 88.1 23.0 12.0 19.9 7.9 31.9 5.4 57.7 9.3

37.7 27.2 25.3 21.9 15.2 12.4 10.0 6.7 76.9 54.2 47.5 44.0 31.1 17.6

55.6 50.3 16.3 49.5 3.8 11.4 -13.6 84.5 32.6 57.8 21.5 48.1 19.3

51.2 27.0 30.0 22.9 13.2 13.0 7.3 7.6 75.1 51.9 49.6 42.6 32.8 7.7

50.9 65.2 9.3 59.3 0.8 6.8 -19.4 80.6 28.9 65.3 22.0 57.9 14.2

Note. All items were ordinal. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the 15 multiple comparisons was pvalue of .05 was .002. Protestant includes: Baptist, Episcopalian, Lutheran, Methodist, and Pentecostal. Due to low sample sizes, results are not reported for Mormon, Eastern Religions, Muslim, or Other. The political orientation item was: When it comes to politics, how do you usually think of yourself and was measured on a five-point scale from Extremely Liberal (1) to Extremely Conservative (5). Spirituality was measured on a five-point scale ranging from Not at All Spiritual (1) to Extremely Spiritual (5). The income items were: Thinking about the time when you were in high school What dollar figure best fits your family household annual income at the time? Compared with American families in general at that time, what was your family income? Descriptive statistics were adjusted by clustering within law school. Financial responsibility for Others was defined as: spouse, children, parents, other relatives, or non-relatives.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) 2. Diversity of Family Background Diversity of Family Background includes demographic and social family factors such as family size, class, socio-economic status, culture, customs, and traditions that influence students perceptions and interpretations of curricular material. Table 8 provides a profile of the diversity of family background of the law students in this national sample. Table 8. Diversity of Family Background by Race and Gender by Race and Gender Men Women Survey Item White Black White Black Social Context (Percent Agree) Lived in neighborhood of the same racial or ethnic background * 87.6 55.4 88.4 54.3 Had close friends of their same racial or ethnic background. * 79.6 64.5 81.8 72.5 Went to high school where most students were of their same racial or ethnic background * 74.9 29.6 75.8 31.1 Had parents who preferred that they not socialize with people of a different racial or ethnic background 3.7 2.2 6.1 1.5 Parental Racial Socialization (Percent Often, Very Often) Said or did things to encourage educational goals * 88.1 90.8 90.9 89.8 Said or did things to address ethnic pride, culture, diversity, and bias * 35.1 71.9 42.8 79.9 Racial/Ethnic Identity Identification (Percent Somewhat Closely, Very Closely) * 70.2 85.4 72.9 89.3 Common Fate (Percent Yes) * 37.2 72.9 38.4 69.7

Note. All items were ordinal. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the eight multiple comparisons was p-value of .05 was .006. The social context items were measured as Disagree, Agree, and Dont Know. The parental racial socialization items were rated on a scale from Never (1) to Very Often (5). The racial identity item (How closely do you identify with other people who are of the same racial and ethnic descent as yourself?) was rated on a scale from Not at All Closely (1) to Very Closely (4). Common fate (Do you think what happens generally to people of your same racial or ethnic group in this country will have something to do with what happens in your life?) was rated on the scale Yes, No, Dont Know.

The findings show that the Black students were less likely than White students to have grown up with most of their neighbors being of the same racial/ethnic background, have close friends with their racial/ethnic background, or attend a high school where most students were

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) their same racial/ethnic background. In addition, while nearly all students received positive messages about education from their parents, Black students report that their parents did that more than White students. Black students, compared to White students, also reported greater parental involvement with messages about culture and bias, great identification with their race/ethnicity and a stronger belief that their ones fate is intertwined with persons of same race/ethnicity. 3. Profiles of Diversity: Experiences of Discrimination, Coping and Collegial Interactions (a) Experiences of Discrimination and Coping Respondents were asked to think about the negative experiences they had as related to their race or ethnicity in their daily lives and other contexts, as well as different ways that they tend to cope with adverse experiences related to race/ethnicity when they occur. Table 9 presents students experiences with different forms of discrimination (microaggressions or everyday discrimination, specific incidents of discrimination, and general reports of discrimination, as well as their reactions or coping mechanisms when adverse conflict based on race occurs.57

57

See A. T. Panter et al., Everyday discrimination in a national sample of incoming law students, 1 J. DIVERS. HIGH. ED. 67, 67-79 (2008); and Brian Stucky et al., An item response theory-based revision of the Everyday Discrimination Scale, 17 CULT. DIVERS. ETHNIC. MIN. PSYCH. 175, 175-185 (2011).

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 9. Experiences of Discrimination and Coping by Race and Gender Men White Black 16.0 24.8 9.2 7.9 7.9 5.2 43.4 63.7 17.2 13.7 21.5 33.1 Women White Black 10.3 9.9 7.8 6.8 21.9 13.2 31.8 31.3 18.3 8.9 21.6 35.6

Survey Item Everyday Discrimination Scale (5 items; = .82; Percent A Few Times a Year or More) * Experienced a Discrimination Incident (Percent Yes) Unfairly stopped by police* Not hired for unfair reasons Neighbors made life difficult Worse service compared to others*x Unfairly discouraged from continuing education*x Experienced Discrimination Due to Race or Ethnicity (Percent Yes a Little, Yes a Lot) During the law school admission process In the work environment* Experienced Adverse Conflict Based on Race (Percent Yes)* Coping Following Adverse Conflict Based on Race (Percent Likely, Extremely Likely) Consider carefully the viewpoint of the other*x Work harder to prove the other wrong* Talk to a friend of a different race about it Talk to a friend of the same race about it* Try to do something about it Mull it over Accept the conflict as a fact of life Get mad Confront the situation Find something to take my mind off of it Pray about it* Feel depressed Realize I brought it upon myself

8.4 1.9 26.1

5.4 20.7 78.2

3.1 1.5 25.7

6.8 22.9 76.7

Note. All items were ordinal. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the 23 multiple comparisons was pvalue of .05 was .002. Everyday discrimination items were measured on a scale ranging from Never (1) to Almost Every day (5). Discrimination incidents were rated as No, Dont Know, Yes. The coping strategies after an adverse conflict based on race were rated on a five-point scale ranging from Not at All Likely (1) to Extremely Likely (5).

47.3 42.1 40.2 39.0 31.7 31.2 29.3 28.9 26.6 21.4 11.3 6.9 1.9

48.3 74.0 45.0 70.5 57.1 19.3 27.2 30.1 46.9 30.6 36.3 4.8 1.4

58.6 51.5 50.7 46.1 39.4 37.5 20.0 27.1 27.2 25.2 12.5 10.1 1.7

35.5 72.8 46.6 78.5 55.5 18.2 20.9 34.1 50.5 32.6 61.3 5.8 1.3

Table 9 shows a clear trend in which Black students, in nearly all of the ways that they were asked, reported experiencing discrimination at higher rates than White students. These forms of discrimination ranged from the everyday microassaults, general assessments of discrimination in the work environment, to specific incidents of racial discrimination such as receiving poorer 40

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) service than others, being discouraged to pursue educational goals, and being stopped by police. In most cases, the differences between Black respondents and White respondents are particularly large (everyday discrimination, being stopped by police, experiencing discrimination in the workplace, being unfairly discouraged to continue education). Following an adverse interaction based on race, White women, especially, indicated that they would carefully consider the viewpoints of others. Black students were more likely to indicate that they would work harder to prove the other person involved in the conflict wrong, talk to a friend of their own race about it, or pray about it, compared to White students.
(b) Collegial Interactions: Social and Educational Activities and Encounters

To explore the experiences that law students had as undergraduates, we assessed several domains of academic and social functioning, including intergroup interactions, as set forth in Table 10.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 10. Undergraduate Academic Experiences: Percentage Often, Very Often by Race and Gender Men Women White Black White Black Survey Item Contact Diversity Had close friends from different racial/ethnic groups*x 41.8 63.0 39.5 42.6 Studied with someone from a different racial/ethnic group*x 36.5 55.1 40.5 42.1 x Dated someone from a different racial/ethnic group* 11.1 27.6 12.0 8.5 Structured Educational Experiences Took an ethnic studies class* 15.2 33.0 24.7 42.6 Participated in an ethnic/racial student organization (Percent Yes) * 9.8 56.2 11.7 63.0 Attended racial/cultural awareness programs* 8.8 33.0 15.2 46.1 Took a womens studies course 3.7 7.0 20.3 19.5 Missed class due to family or work responsibilities? 1.7 1.1 1.7 4.2 Discourse Engagement Had an influential mentor (Percent Yes) 74.5 80.3 81.8 80.5 Had an influential female mentor (Percent Yes) 21.0 29.3 41.6 51.4 Had an influential mentor of color (Percent Yes) * 10.9 52.9 11.2 63.3 Modified views on political issue (Percent Yes) 41.3 41.1 41.7 36.5 Met with a faculty member outside of class 30.3 35.1 36.6 42.9 Discussed racial issues* 29.2 59.8 33.1 63.3 Held office in a student organization (Percent Yes)* 17.0 30.3 16.7 30.1

Note. All items were ordinal. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the 15 multiple comparisons was p-value of .05 was .003. Unless otherwise noted, the item stem was: During your undergraduate years, how often did you? with responses being rated on a scale from Never (1) to Very Often (5). Other items had the stem, During your years as an undergraduate, did you?, with a No or Yes response format.

As Table 10 demonstrates, Black students and White students do interact in educational settings. Diversitys effects may be robust, given our finding that Black students and White students see significant aspects of the world differently or have different perspectives on common phenomena. Interactions among students, especially White and Black students, confirm that diversity has an educational value. Although here we are examining pre-law school matters, there is no reason to think that interacting conduct would not continue in law school. Our law school data confirm that interactions do continue.58

58

See discussion of law school interactions in Part III infra.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) In terms of contact diversity that students had outside of the classroom setting, as an undergraduate, Black students were more likely to have close friends from other racial groups than White students, study with someone from a different racial/ethnic group, and date a person from a different racial/ethnic group. The educational experiences showed some similarities and differences as a function of race/ethnicity. Students across all groups were equally likely to modify their views on an important political issue due to discussions with someone from a different racial/ethnic background and miss classes due to employment responsibilities. Black students were more likely to have educational experiences that involved discussions of race/ethnicity including taking an ethnic studies course, discuss racial issues, participate in a student organization, hold office in student government, and attend programming outside of classes where race/ethnicity was the primary topic. The observed differences regarding courses were specific to ethnic studies courses; the same effect for race did not occur for womens studies courses. There was not a significant difference between Black and White student groups in relation to having an influential mentor during college. However, Black students were over eight times more likely than White students to have a mentor of color, and women were over twice as likely to have a female mentor. 5. Profiles of Diversity: Educational Expectations about Law School This section reports and discusses students educational expectations about law school. We focus specifically on students perceptions of what and how a diverse student body will enhance or inhibit their learning during law school and what their perceived personal benefits of student diversity are. In Table 11 we present how students value student diversity, as a function of race and gender.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 11. Diversity of Educational Expectations: Percentage Agree or Strongly Agree by Race and Gender Men Women Survey Item White Black White Black Personal Diversity Beliefs (four items; = .92) 59.5 89.3 74.8 86.2 Educational Impact of Diversity Critical thinking enhanced by others points of view A more diverse student body helps abilities to work together* Racially diverse student body challenges all students to think about different viewpoints* Benefit of racial diversity on campus extends after graduation Educational experience enhanced from exposure to diverse points of view* Personal abilities enhanced by interactions with others from different racial/ethnic backgrounds* Class time should be used to discuss racial issues* Courses should reflect cultural differences such as the needs and strengths of low-income groups * Knowledge of the University of Michigan affirmative action cases (Percent Very Knowledgeable and Extremely Knowledgeable) *

89.1 83.1 74.5 68.0 63.2 62.1 59.6 50.8

91.2 90.6 93.4 85.7 86.3 86.8 67.1 81.3

92.3 88.5 84.5 79.9 75.9 71.1 71.4 68.0

88.9 93.5 93.5 86.1 83.5 88.1 76.7 84.0

Note. All items were ordinal. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the 11 multiple comparisons was pvalue of .05 was .004. The four items of the Personal Diversity Beliefs had the item stem: Diversity among students enrolled in my law school will: (a) enhance my learning and educational experiences in law school generally; (b) improve my ability to work with others in law school; (c) improve my ability to interact with others in the profession after law school; and (d) improve my ability to interact with others in society after law school. Some items in Educational Impact of Diversity were reverse keyed for ease of interpretation in the table. The Knowledge of the University of Michigan affirmative action cases was rated on a scale from Not at All Knowledgeable [have very little or no awareness about the cases] (1) to Extremely Knowledgeable [have read and studied the cases].

15.2

26.3

10.1

21.9

Before we describe some variances by race on the matters covered in Table 11, we note an even more important finding. With the understandable exception of first-year entering students knowledge of the Grutter case during their first week of law school, substantial and in some cases, overwhelmingly, most students Agreed or Strongly Agreed with all questions about Diversity of Educational Expectations. Ninety percent agreed that critical thinking was enhanced by others points of view, and that A more diverse student body helps abilities to work together. In addition, 75% to 94% agreed that racially diverse student body challenges 44

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) all students to think about different viewpoints. Also, 63% to 86% of students agreed or strongly agreed that the benefit of racial diversity on campus extends after graduation, that personal abilities are enhanced by interactions with others from different racial/ethnic backgrounds, and that educational experience is enhanced from exposure to diverse points of view. Black students were more likely than White students to agree that racial diversity would personally enhance their law school education with enhanced learning, greater effectiveness in the profession, and greater ability to interact with diverse others in society after graduation. Moreover, Black students were more likely to agree that a diverse student body can challenge all students to think about different viewpoints, that it was a reasonable use of class time to discuss issues related to race/ethnicity, that their courses should reflect cultural differences such as the needs and strengths of low income groups, and that law school would be enhanced significantly by being exposed to diverse points of view expressed in the classroom. Black students were also more likely than White students to believe that racial diversity on campus would improve law students abilities to work and get along with others after graduation in an increasingly diverse society. Black and White students were equally likely to report that they would more effective critical thinkers when they consider carefully other points of view. With regard to knowledge about Michigan affirmative action Supreme Court cases, Black students and women reported higher knowledge than White students and men. PART III. ANALYZING THE EFFECTS OF RACIAL DIVERSITY IN EDUCATION A. Examining Educational Domains In Part III we examine the role, if any, race plays as an aspect of educational diversity in fostering goals we set for identified educational domains. We identify three educational domains

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) as the Individual domain, the Institutional domain, and the Societal domain. The domains are not all-inclusive nor entirely distinct, but place emphasis on different aspects of the purposes we ascribe to education and on the range of expectations we have for our educational endeavors. There are, of course, different ways the contributing factors, functions, and descriptions of educational diversity can be understood.59 It has been pointed out that Much of the theory and research related to diversity experiences has focused on three features of the teaching and learning environment: (a) structural diversity, (b) classroom diversity, and (c) informal interactional diversity.60 . . . Structural diversity essentially represents the extent to which students of color are included in the student population. Classroom diversity refers to the incorporation of information about diverse groups in the curriculum. Informal interactional diversity refers to the extent to which diverse groups of faculty and students interact with one another in and out of class.61 We understand these dimensions but we try to delve deeper to an understanding of how educational diversity operates to affect students, institutions, and broader society62 because that appears to be a way of rationalizing why the Supreme Court approved diversity as a compelling interest in higher education settings. More pertinently, the utility of educational diversity approved by the Supreme Court was that benefits derived from educational diversity are valuable to individuals,63 to educational institutions,64 and to society.65 Among other factors,

59

See, e.g., Gary R. Pike & George D. Kuh, Relationships Among Structural Diversity, Informal Peer Interactions and Perceptions of the Campus Environment, 29 REV. HIGHER EDU. 425, 425-450 (2006), available at http://cpr.iub.edu/uploads/Pike%20Kuh%20divefrsity%20RHE%202006.pdf . 60 Id. at 426-427. 61 Id. 62 See generally, ASSOCIATION OF AMERICAN COLLEGES AND UNIVERSITIES, THE DRAMA OF DIVERSITY AND DEMOCRACY HIGHER EDUCATION AND AMERICAN COMMITMENTS (1995), available at http://www.aacu.org/publications/pdfs/DramaofDiversity.pdf [hereinafter THE DRAMA OF DIVERSITY]. 63 See, e.g., Grutter, 539 U.S. at 330 ([T]he Law School's admissions policy promotes cross-racial understanding, helps to break down racial stereotypes, and enables [students] to better understand persons of different races.. . .

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Justice OConnor posits that we need to be able to balance the value of diversity against the cost of achieving diversity through race-conscious programs.66 Thus, within the framework set by the Supreme Court, educational institutions may use race in a system in which the institutions set goals of diversity, take actions to achieve diversity, and seek to produce outcomes that advance diversitys educational benefits. 1. Individual Domain The Individual domain emphasizes enriching each students educational experiences by deepening the students understandings and abilities to think critically about ideas. We believe that one way we help to accomplish this objective is by exposing students to many different perspectives and by making educational encounters richer, livelier, and more interesting. We encompass the concept of structural diversity within the Individual domain. Consistent with generally articulated notions of education, the Individual domain asks about educating the student as a person. The Individual domain cannot be regarded as discrete from other domains, however, because education is about something from achieving, in classical terms, an educated person presumably for its own sake, to enhancing capacities of individuals for a purpose, such as to make a livelihood, to serve others, to improve society, to sustain a society,

These benefits are important and laudable, because classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds.). 64 See, e.g., Id. at 329 (Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School's proper institutional mission, and that good faith on the part of a university is presumed absent a showing to the contrary.) (emphasis added). 65 See, e.g., Id. at 332-333 (In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools cannot be effective in isolation from the individuals and institutions with which the law interacts.. . . . Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.). 66 See THE NEXT TWENTY-FIVE YEARS, supra note 2, at 65.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) and other broad goals.67 2. Institutional Domain The Institutional domain emphasizes having a presence of members of diverse groups, widening the scope of perspectives expressed on campus, and increasing the range of activities, programs, and interests represented within educational institutions. Educational institutions seek these outcomes not merely to advance the educations their students derive (the Individual domain), but also to benefit the institutions themselves by maintaining or improving their images and reputations their stature among institutions. A strong positive image and, even a high ranking are desirable because such attributes attract the most highly qualified students and most accomplished faculty members. Such students and faculty enhance the likelihood of innovative research and significant advancement of knowledge. Thereby they increase the institutions access to resources, gifts, contracts, grants, and other tangible and intangible benefits. As can be observed, the institutional domain is not discrete. Institutional stature benefits students who expect to benefit and who do benefit by graduating from a high status institution (at least as compared to institutions of more modest status). At the same time, the belief is that, in the aggregate, graduates of high status institutions will have opportunities that exceed opportunities available to graduates of lesser institutions.68 Indeed, as a further indicator that the domains are not discreet, some of these advantages in both the Individual and the Institutional

67

See THE DRAMA OF DIVERSITY, supra note 62, at 34 (Higher education should help students explore the sources and complexities of their own identities, the American Commitments reports propose. Such exploration is a traditional and legitimate goal of college learning. But students should also be expected to discover and engage, experientially and conceptually, the histories and perspectives of others. Students should study, at a sophisticated level, the democratic aspirations, principles, and histories that frame the contemporary context for negotiating difference. And they should practice, throughout their education, arts of translation, negotiation, and reconceptualization.). 68 See generally Grutter, 539 U.S. at 332.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) domain, as will be discussed below, are also manifested in the Societal domain.69 Therefore we encompass concepts of structural diversity, classroom diversity, and informal interactional diversity within the Institutional domain when our purpose is to focus on advancing interests of institutions. 3. Societal Domain The Societal domain emphasizes creating opportunities for students to interact with others of different backgrounds, races, and cultures with the goal of increasing students abilities to interact positively and effectively in a diverse society and an interconnected global world. In these ways institutions prepare students to contribute to general societal well-being in important ways. The benefits, however, go farther. Well-educated students (the Individual domain) from highly regarded schools (the Institutional domain) are likely to be regarded as better equipped to make contributions to society. These contributions are realized in many dimensions that are perceived as advancing society from numerous perspectives. Society may be improved if education enables graduates to help society to be stable; to be democratic; to become more just; to develop new ideas in medicine, science, and technology; to be more effective in protecting national security; to compete more effectively in global commerce; to find new ways to serve peaceful, sustainable, forward moving ends in the world; and in other ways too numerous to mention. The Societal domain interacts with all of the diversities mentioned, but goes further to support the fullest justification for seeking the utilities that the nation derives from the benefit

69

See THE DRAMA OF DIVERSITY, supra note 62, at xviiii (American colleges and universities have persisted too long in a largely institutional conception of diversity: diversity as admissions process and faculty hiring; diversity as student services, special programs, ethnic centers; diversity as a graduation requirement that students take at least one course on a world culture, an American ethnic group, or women anywhere at all. As a community, we have not talked enough about the public purposes that informor follow fromthe affirmations of diversity that now guide campus practice.).

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) diversity is tasked to produce.70 B. Toward a Matrix of Interactions: Diversity Constructs and Educational Domains A matrix, generally speaking, involves an attempt to organize information,71 with attention to arranging things in ways that help demonstrate their interconnectedness. There are, of course, many purposes for which such organizational schemes may be used. 72 We deploy the technique here with three goals. We seek to clarify ways the purposes of education may be highlighted. We also explore, to the extent possible, some ways those purposes may be associated with student racial characteristics and selected other personal characteristics. We also identify some ways questions (and answers) about racial diversity (and other personal characteristics) among students can be connected to the purposes of education.73 Diversity has been characterized as operating in the three domains set forth above. We posit that a diversity factor or construct that is set forth in support of educational diversity can be characterized as directly operating to affect an educational domain. For example, a goal of creating a diverse student body from which one individual student can learn from another is
70

See THE DRAMA OF DIVERSITY, supra note 62, at 34 (Higher education should help students explore the sources and complexities of their own identities . . . . Such exploration is a traditional and legitimate goal of college learning. But students should also be expected to discover and engage, experientially and conceptually, the histories and perspectives of others. Students should study, at a sophisticated level, the democratic aspirations, principles, and histories that frame the contemporary context for negotiating difference. And they should practice, throughout their education, arts of translation, negotiation, and reconceptualization.). 71 See, e.g., THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE ( 4th ed. 2000) (defining matrix as a rectangular array numeric or algebraic quantities subject to mathematical operation or as something resembling such an array by forming elements in columns and rows). 72 See Devon W. Carbado & Mitu Gulati, What Exactly is Racial Diversity? 91 CAL. L. REV. 1149, 1151 (2003) (setting forth a classification system as a taxonomy for utility of racial diversity and posits seven different ways of conceptualizing the utility of diversity: diversity in the context of (1) inclusion; (2) social meaning; (3) citizenship; (4) belonging; (5) colorblindness; (6) speech; and (7) institutional culture. Each conception relates to the other, and some share the same underlying assumptions, but we discuss them separately for reasons of clarity.). See generally SCHUCK, supra note 20, which sets forth taxonomic consideration of diversity and largely argues that affirmative action should not be Constitutionalized except for specific relief to identified victims while promoting essentially a privatized and non-judicialized affirmative action in other contexts. 73 See Carbado & Gulati, supra note 72, at 1150 (Nor do the benefits of diversity go without saying. They must be theorized and demonstrated. This project is all the more important given that, if the Supreme Court is to uphold affirmative action [in Grutter, for example], presumably it will do so because of the value of racial diversity in the educational process. And to do that (or not), the Court will have to figure out not only what racial diversity is but also what it does.).

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) directly advanced by admitting students who are members of diverse groups not otherwise adequately present in the student body. Many conditions must be analyzed to ascertain whether the environment fosters learning by one student from another.74 But, if the conditions necessary to foster learning from one student to another are present, a diverse student body will directly further achievement in the Individual domain. A diversity factor can operate within one domain directly (as above in the Individual domain) and have an effect in advancing an objective of another domain. We identify this interaction as having a derivative effect on the second domain. For example, the goal of creating an environment that enhances the learning of an individual student (the Individual domain) will create a context derived from the diversity created that permits and enhances the likelihood of learning among other students. Other students learning results in strengthening the institutions educational capacity and reputation (thus, having a derivative effect on the Institutional domain). Even when a diversity factor does not operate directly or derivatively it may have an effect through the way one domain interacts with or influences another domain or both domains. We identify this interaction as a mediated effect. For example, a diverse student body in which individual learning is enhanced by diversity (the Individual domain) and that strengthens an institutions educational capacity and reputation (the Institutional domain) may produce, through these interacting domains, graduates who will further interests of society (thus, affecting the Societal domain). We identify this as a mediated effect. Discussions of diversity have not always been crystal clear whether a diversity factor or construct is seen (a) as part of a set of educational goals one is seeking to achieve, (b) as part

74

See Part III. B. infra.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) of the actions (specific conduct) one engages to advance achievement of an educational goal), or (c) as a way of articulating an outcome one seeks to achieve, either in setting a goal (or goals) and or taking specified actions designed to achieve a goal. It is difficult to find ready ways to capture the interactions of diversity and educational domains: that is to say, it is difficult to understand, not to mention convey, precisely the complex ways constructs of diversity and educational diversity interact. With the aim of helping clarify the potential interactions we set forth three figures below in an attempt to create a framework for discussion of educational diversity and the empirical analyses we make of diversity constructs. 1. Diversitys Direct, Derivative and Mediated Effects on Education We have collected the diversity constructs principally set forth in the Grutter decisions analysis.75 We have also collected instances in which the University of Michigan Law School advanced diversity factors that we classify as falling in one or the other of the domains.76 We have also identified educators discussions of the purposes of education.77 A frequently cited goal of diversity is to Achieve a mix of students who will respect and learn from each other. This diversity factor will operate directly in the Individual domain because when the broad mix of students exists an individual student would have the opportunity

75 76

See Grutter, 539 U.S. at 330-34. Id. 77 See generally THE DRAMA OF DIVERSITY, supra note 62, at xx. The American Commitments National Panel of the Association of American Colleges and Universities sets forth the following challenge for American higher education: While universal democracy has not been attained in the United States, the presence of the ideal as a unifying American creed establishes it both as a societal aspiration and as a valued goal toward which our democratic system should move. That goal was captured by John Dewey (1916) when he described democracy as the most ethical aspiration conceived by human communities. The aspiration was unobtainable, he wrote, without a societys commitment to a life-long education (in which formal schooling played only one part) to develop the capacities for associated living in a society characterized by complexity and diversity (1927). Those capacities can only be developed if Americans, as a people, strive to understand one anothers histories, experiences, and aspirations and if we work constantly to develop the relational skills to live and work in community with one another. Id. (emphasis added). The Panel also pointed out: Higher educations unique mission as a gathering place for multiple diversities certainly makes us open and vulnerable to the conflicts engendered by our current national dialogue. But our mission to expand human knowledge and capacity also holds us accountable for discovering more productive approaches to the dialogue itself. Id. at 3.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) to learn from other students. This diversity factor has a derivative effect in the Institutional domain in the sense that when mutual learning takes place among students that outcome will further institutional interests identified above. When we focus on the Societal domain, we classify the effect of a diverse mix of students who respect and learn from one another as mediated. The Societal benefit accrues to the extent of the achievement of the other educational domains. It is therefore not merely derived from one or the other but Societal benefit is mediated through the achievement of the Individual and Institutional domains the benefit for the social domain is transmitted thus, mediated through achievement of the other domains. 2. Diversity Factors as Affecting Goals, Actions, and Outcomes Some of the discussions of educational diversity do not clarify whether the focus is on the goals, on the actions one might take, or on the outcome that flows as a result of having established goals or having taken actions to achieve some aspect of diversity. Frequently goals, actions, and outcomes are not easy to distinguish or to focus on as particular matters. In the three figures that follow we set forth a matrix of educational diversity. In the rows we array diversity factors as having a direct, derivative, or mediated effect on educational benefits of diversity. In the columns we seek to indicate whether a particular diversity factor or construct implicates a goal, an action, or an outcome. Table 12 deals with Educational Goals; Table 13 deals with Actions an institution might take to achieve educational goals. Table 14 deals with Outcomes an institution might expect or hope to achieve regarding Educational Diversity.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 12. Educational Domains, Diversity Goals, and Types of Effects on Each Domain Individual: Institutional: Societal: Emphasizes Emphasizes Emphasizes Students' Institutions Society's Learning Interest Interests as Benefit as Benefit as Benefit Diversity Diversity Diversity Educational Goals Being Sought By Diversity Effects Effects Effects Achieve a mix of students who will respect and learn from each other Provide education necessary for individuals to succeed in life Keep opportunity for education open to minority students Enable students to better understand persons of different races Bring perspective of students who have been victims of discrimination Enroll students with potential to contribute to learning of other students Students who will contribute to the life and diversity of institution Students who make contributions to intellectual life of institution Students who make contributions to social life of institution Graduates who make outstanding contributions to legal profession Institution that provides education needed to succeed in America Graduates who will contribute to the wellbeing of others Help achieve racially diverse officer corps for national security Cultivate leaders with legitimacy Sustain our political and cultural heritage Educate about ideas, mores as diverse as Nation of many peoples Help to realize the dream of one Nation, indivisible Direct Direct Direct Direct Direct Derivative Derivative Derivative Derivative Mediated Direct Mediated Mediated Mediated Mediated Direct Mediated Derivative Derivative Derivative Derivative Derivative Direct Direct Direct Direct Direct Direct Mediated Mediated Mediated Mediated Direct Mediated Mediated Mediated Mediated Mediated Mediated Mediated Mediated Mediated Mediated Mediated Direct Direct Direct Direct Direct Direct Mediated

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 13. Educational Domains, Diversity Actions, and Types of Effects on Each Domain Individual: Institutional: Societal: Emphasizes Emphasizes Emphasizes Students' Institutions Society's Learning Interest Interests as Benefit as Benefit as Benefit Diversity Diversity Diversity Actions to Advance Diversity Effects Effects Effects Seek critical mass so minority students will participate in classroom Derivative Direct Mediated Seek critical mass so minority students do not Direct Derivative Mediated to feel isolated Seek critical mass: learn minorities dont have Derivative Direct Mediated single viewpoint Admit students with potential to enrich Direct Direct Mediated everyone's education Admit students with potential to make the Derivative Direct Mediated class stronger Ensure minorities' ability to make Derivative Direct Mediated contributions in institution Select students who will contribute to the Direct Direct Mediated robust exchange of ideas Expose students to diverse ideas, mores as a Direct Direct Mediated Nation of many peoples Educate students to succeed in the practice of Direct Direct Derivative law Educate students so they can contribute to the Derivative Derivative Direct well-being of others Prepare students for an increasingly diverse Direct Direct Direct workforce and society Provide diversity so students develop skills for Direct Direct Direct global marketplace

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 14. Educational Domains, Diversity Outcomes, and Types of Effects on Each Domain Individual: Institutional: Societal: Emphasizes Emphasizes Emphasizes Students' Institutions Society's Learning Interest Interests as Benefit as Benefit as Benefit Diversity Diversity Diversity Outcomes to Be Achieved Effects Effects Effects Classroom discussion that is livelier, more Direct Direct Mediated spirited Classroom more enlightening, more interesting Direct Direct Mediated Admissions policy promotes cross-racial Direct Direct Direct understanding Admissions policy helps to break down racial Direct Direct Derivative stereotypes Student body diversity that promotes learning Mediated Direct Direct outcomes An institution that remains both diverse and Mediated Derivative Direct selective. Students admitted with prospects of strength, Mediated Derivative Direct attainment, characteristic Graduates who contribute to the well-being of Derivative Derivative Direct others Country's most selective institutions remain both Derivative Direct Direct diverse and selective. Graduates are prepared to be professionals Direct Direct Direct Graduates have skills needed in global Direct Direct Direct marketplace Graduates prepared for work and citizenship Direct Direct Direct Graduates prepared for an increasingly diverse Direct Direct Direct workforce and society Education that plays fundamental role in Mediated Derivative Direct maintaining fabric of society Our military can attain a highly qualified, Mediated Derivative Direct racially diverse officer corps Leaders are cultivated with legitimacy Mediated Derivative Direct Education is strengthened as the very foundation Mediated Derivative Direct of good citizenship Graduates help sustain our political and cultural Mediated Derivative Direct heritage Institutions provide to every race, ethnicity Mediated Derivative Direct education to enable success Education demonstrating open leadership paths Mediated Derivative Direct by race and ethnicity Members of all racial, ethnic groups participate Mediated Derivative Direct in civic life of Nation 56

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) C. Observed Effects of Race (and Other Characteristics) on Educational Diversity 1. Methodological and Background Reprise The survey administered to entering law students (the Baseline Survey)78 provided a descriptive snapshot at the start of law school of how the attributes, expectations, and life experiences of law students vary as a function of race.79 With these findings we observed differences in specific areas (e.g., past discrimination experience, views about government priorities, international focus, choice of mentor, expectations about professional barriers in the future) that were associated with race/ethnicity, gender, and other personal characteristics. We also observed differences associated with race (and other factors) in student educational choices, behavior patterns, interpersonal experiences, and future expectations as they began to undertake their law school educational experience.80 During the spring semester of the survey participants third year, we conducted an online survey (the Third Year Survey)81 to address two limitations of the Baseline Survey. First, the Baseline Survey data captured only students responses at a single transition time point: at the entry point into law school. Thus, we were limited to analyzing the connection between race and educational diversity in students who were selected to attend a law school and who matriculated at a specific law school in our random sample of law schools to which they were admitted.82 Second, the Baseline Survey data did not allow an examination of the unfolding of student learning, interpersonal and professional relationships with peers and faculty, and students
78 79

We generally refer to the survey administered upon enrollment as the Baseline Survey. See generally Part II supra. 80 See Part II. E. supra. 81 For the specifications of the Third Year Survey see DAYE ET AL., THE EDUCATION DIVERSITY PROJECT (2010), supra note 6. 82 This limitation is, in part, addressed by longitudinal data in the Year 2 focus group data and the Third-Year survey.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) expectations about future performance in the legal profession after graduation as a function of race (or other personal factors). An objective of the Third Year survey is to identify aspects of the law school experience that may be affected by racial diversity that we observed from the Baseline survey. We strongly believed that these experiential variables include and extend beyond the instrumental function of training students for the acquisition of legal knowledge and analytical skills for a career in the legal profession. Using only the data derived from the cross-sectional data at the transition to law school, we could not draw conclusions about the specific domains of educational diversity discussed above. Recall that we examine educational diversity by assessing effects in individual, institutional and societal domains within which the context provided by race may or may not frame students experiences during their law school years. For the Third Year survey, we expanded the Baseline survey by following up a subset of the Baseline respondents during their final year of law school (Spring 2007). The Third Year Survey focused on law school educational experiences, peer relations, and current aspirations. We were interested in identifying and analyzing the ways in which the diversity effects associated with race observed at the start of law school may unfold during law school, as students perform academically, negotiate peer relations, interact with faculty, conduct classroom discussions (involving and not involving race), and study legal cases involving race. The Third Year survey was designed to provide a longitudinal perspective about the variability due to race/ethnicity that we observed in Baseline survey across our six major domains of diversity. 1. Students Voices: Confirmation of Data In the next three sections of our discussion we add students voices in domains (under the

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) sub-heading Students Voices). We seek to confirm our findings in the lived experiences of study participants. Here we drill down into our statistical findings, going beyond general patterns to specific examples. Such examples have a special resonance in disciplines like Law, Medicine, and Business, where the push is to pay attention not only to the broader outlines of a particular law, medical condition, or economic effect, but also to consider events in specific context. Questions commonly asked are: What are the specific details of this particular example? How does the phenomenon of interest vary for different individuals? Does individual intent and state of mind matter? Are there important particular idiosyncrasies or exceptions? We now leverage students voices revealed through focus group data to confirm the benefits of educational diversity across individual, institutional and societal domains. In the process we hope to illuminate richer, more nuanced aspects of whether and how educational diversity matters in the legal education experiences of the students we studied. As a way to recognize the complexity of student contexts, experiences and attitudes and provide a nuanced view to our quantitative baseline data, the EDP conducted focus groups with a subset of baseline survey respondents during the second semester of Years 1, 2 and 3 of law school.83 These focus group data allowed us to provide much-needed context and rich detail for interactions, feelings, perceptions, and behaviors of law students over their careers from matriculation through graduation. Focus groups addressed a broad range of issues, including: student experiences, classroom interactions, relationships with faculty and other mentors, personal growth and change; overall satisfaction with law school; and future plans after law school graduation.84

83

For the specifications for the EDP focus group study procedures, protocols, sample, data, and analyses see DAYE (2010), supra note 6. 84 The EDP conducted focus groups with law student participants at 11 Law Schools clustered in: New York City (3 schools), Washington DC (2 schools), Research Triangle (Raleigh- Durham- Chapel Hill) NC (3 schools) and San
ET AL., THE EDUCATION DIVERSITY PROJECT

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) 3. Findings Related to Race and Ethnicity and Gender Our data present a very large number of variables. In the following sections we present a sampling of key findings on the key issue of racial diversity findings. (a) Observed Diversity Principally in Individual Domain (1) Sociopolitical attitudes We assessed sociopolitical attitudes in a number of areas for graduating students. We assessed respondent viewpoints on: Affirmative Action, Perceived discrimination against societal groups, discrimination in the legal profession, individualism, the role of government, Blacks and society, and gay and lesbian rights. i. Affirmative Action Table 15 highlights differences observed regarding affirmative action attitudes among those who Strongly agree and Agree with the affirmative action items across race/ethnicity and gender. There was wide variance in agreement across race for all of these items. The variance in beliefs was especially apparent for the items The law should allow consideration of race in university admissions decisions and Affirmative action is harmful to members of my ethnic group. Consistently, White students were less supportive of affirmative action than Black students. Women were more supportive of affirmative action than were men.
Francisco CA (3 schools). The 11 Law Schools were a convenience sample from the larger national survey study of 50 randomly selected Law Schools. Focus group respondents were recruited from among original participants in the national survey study via email, flyers and classroom visits. A total of 275 students were recruited for the focus group study. Eventually 203 students continued to participate over the three years. Focus group participants were 39% male and 61% female. In terms of race/ethnicity, the sample was: 27% Black, 11% Asian/Pacific Islander (API), 9% Latino, 50% White, and 3% Other. There were more women than men in each racial category except Other. After the accuracy and reliability of transcriptions from audio taped focus group sessions was verified, Diversity Project staff undertook qualitative data analysis. We used ATLAS.ti software to examine our major research questions about educational diversity and to explore other themes and patterns in the data. Our qualitative analyses compared across and between race/ethnicity, gender, region, and school context. Where appropriate we correlated focus group transcripts with analyses of national survey data to provide the fullest possible examination of key research questions.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 15. Affirmative Action Attitudes: Percentage Agree or Strongly Agree by Race and Gender Men Women Survey Item White Black White Black Affirmative action stigmatizes the people its supposed to help. 54.0 37.8 42.3 28.4 Affirmative action is harmful to members of my ethnic group. * 46.4 2.7 29.1 4.2 The law should allow consideration of race in university admissions decisions. * 36.7 94.6 43.4 74.7 Affirmative action admits too many students who have a low 30.6 2.8 17.6 1.1 chance of academic success. *
Note. All items were ordinal. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the four multiple comparisons was pvalue of .05 was .013.

ii. Perceived Discrimination against Societal Groups We also asked students to indicate their views on the following item: How much discrimination do you think there is against these different groups in society today? They were provided an alphabetical list of different societal groups that can be grouped into the following categories: under-represented racial/ethnic minorities (Blacks, Latinos, American Indians/Native Americans, Asians), gays/lesbians, low socioeconomic status groups (people who are poor, immigrants), people with disabilities, older adults, and religious groups (Muslims, Fundamentalist Christians, Jews). Respondents indicated the level of discrimination they believed each group experienced: None at All, Only a Little, Some, and A Great Deal. They were also able to indicate that they did not know. Of all the respondents who expressed an opinion, Table 16 shows the percentage of law students who indicated that each group experienced A Great Deal of discrimination.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 16. Perceived Discrimination Experienced in Society Today: Percentage A Great Deal by Race and Gender Men Women Survey Item White Black White Black Racial Minorities Blacks * 35.5 91.9 50.3 86.2 Hispanics Latinos * 27.1 67.6 41.2 60.6 American Indians/Native Americans 18.7 36.7 31.0 28.4 Asians * 16.6 51.4 24.7 40.0 Social Groups Gays and Lesbians 60.8 86.5 72.2 71.0 People who are poor * 44.0 89.2 61.1 91.4 Immigrants 38.4 59.5 55.8 70.3 People with disabilities 22.1 25.7 37.8 38.2 Older adults 6.5 6.1 19.0 17.8 Women * 6.4 24.3 16.9 27.7 Religious Groups Muslims 61.4 86.5 78.9 78.5 Fundamentalist Christians 11.5 6.3 11.3 8.6 Jews 6.4 5.7 7.6 11.6
Note. All items were measured on a four-point, ordinal scale. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the 13 multiple comparisons was p-value of .05 was .004. Items ranged from None at All (1) to A Great Deal (4). At follow up, the item, People on welfare, was not included.

In Table 16 we note that White law students were least likely to report that the identified groups experienced A Great Deal of discrimination in todays society. For many different groups women were more likely than men to report that A Great Deal of discrimination exists in todays society. Male and female law students differed in their estimation of the amount of discrimination that women experience, with female law students, especially women of color, perceiving more discrimination. We also see that there was wide variance in how men perceived discrimination against Blacks, Latinos, and American Indians/Native Americans and how women perceived discrimination against these groups. Whites, Fundamentalist Christians, and Jews were rarely perceived as experiencing A Great Deal of discrimination in todays society.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 17. Social and Race-Related Attitudes: Percentage Agree or Strongly Agree by Race and Gender Men Women Survey Item White Black White Black Discrimination in the Legal Profession Gender discrimination in the legal profession exists. * 63.9 89.2 87.6 92.6 Racial discrimination in the legal profession exists. * 60.0 94.6 75.4 93.7 Special Treatment Success, or ones achievement, in American society depends primarily on individual merit. * 60.8 24.3 45.6 25.0 The law should allow consideration of race in university admissions decisions. * 36.7 94.6 43.4 74.7 Because Irish, Italians, Jews, and many other minorities overcame prejudice and worked their way up, Blacks should do the same without any special favors. 28.8 0.0 15.1 3.2 Rights for Gays and Lesbian Gays and lesbians should have the right to adopt children. 70.9 56.8 84.6 67.4 Gays and lesbians should have the right to marry. 65.9 59.5 80.2 48.4 Governments Role The country needs a strong federal government to handle the complex problems that it faces. 57.7 72.2 56.4 68.4 The government should guarantee jobs for all. 9.0 29.7 12.7 38.9
Note. All items were measured on a five-point, ordinal scale. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the seven multiple comparisons was p-value of .05 was .007. Items ranged from Strongly Disagree (1) to Strongly Agree (5). The model for Because Irish, Italian, Jews and many other minorities overcame prejudice did not converge because of the zero cell for Black men and low frequency for Black women.

As can be seen from Table 17, attitudinal differences by race/ethnicity and gender are present for students expectations about discrimination based on race or gender in their chosen profession, with a higher percentage of Black students and women reporting that discrimination exists compared to White students and men. Black students were far more likely to endorse affirmative action and far less likely to endorse individualism and symbolic racism beliefs than White students. Gender, but not race/ethnicity, significantly predicted attitudes about greater rights for gays and lesbians, while neither gender nor race/ethnicity was significantly associated with perceptions about the federal governments role. While not statistically significant, descriptively, Black students showed lower endorsement of gay and lesbian rights and higher 63

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) endorsement of the governments responsibility. (2) Personal Growth and Challenges Law school presents both personal and professional growth experiences as well as challenges. In this section we examine a sampling of survey sections related to personal growth, burden, and resources. As with all of the findings presented in this section, descriptive statistics are shown, but it is taken into account that respondents were enrolled in different law schools. To understand how respondents felt during law schooltheir successes and their struggleswe asked a series of questions probing whether or not respondents experienced positive growth during law school, enjoyed thinking like a lawyer, and found their niche in law. We also asked law students about their struggles: academic struggles, the pull to leave law school, and regrets about making the decision to attend law school. The percentage of students who indicated that they experienced each of these items (by race/ethnicity and gender) is given in Table 18. Table 18. Law SchoolPerson Fit: Percentage Yes by Race and Gender Men Women Survey Item White Black White Black Growth Experience positive personal growth 84.4 89.2 86.7 87.2 Enjoy learning how to think like a lawyer 84.3 81.1 84.7 83.2 Find your "niche" in law 61.2 59.5 64.7 56.8 Struggles Have over $70,000 of educational debt 55.7 55.6 56.8 57.0 Struggle academically 23.2 45.9 27.4 50.5 Consider leaving law school 22.8 29.7 27.9 45.3 Seriously regret your decision to attend law school 21.6 24.3 22.9 38.3
Note. All items were measured on a four-point, ordinal scale. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the seven multiple comparisons was p-value of .05 was .007. There are no statistically significant effects by race/ethnicity, gender, or their interaction in this table.

The findings showed that, regardless of race/ethnicity and gender, most students reported that they experienced positive personal growth during law school. Students differed in how much 64

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) they enjoyed thinking like a lawyer, but most students indicated that they generally enjoyed this aspect of law school. Racial/ethnic groups differed in how much they reported thinking like a lawyer. A more targeted item about whether students found their niche in law was endorsed by over half of the sample. As for difficulties experienced in working toward the law degree, over half of the students had over $70,000 of debt from educational expenses, about one quarter of the sample indicated that they struggled academically, and about one fifth of the sample indicated that they seriously regretted their decision to pursue a law degree and had considered leaving law school. Growth experiences in law school were experienced by all students, yet graduating law students reported periods of uncertainty and doubt that occurred during law school. While male and female students of color indicated that they experienced academic struggles during law school, the women of color had higher consistently endorsements of these items regarding struggles in law school. (3) Students Voices on Individual Domain: Diverse World Views I often myself am thinking, Wow! I never! in a million years would have thought of that! Kate85 Student voices confirm the individual benefits of educational diversity in Law School. As Kate, a White female law student in New York City indicates, during exchanges inside and outside the class room, students find themselves in series of AHA!!! moments. Through exposure to the thinking of other students from different experiences and backgrounds, they are required to think outside the box, to push beyond their unexamined world views. A lot of times you can kind of get caught up in your own world and kind of see things as

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All respondents were assigned pseudonyms to protect confidentiality during the focus group interview process.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) only you see them. But when you are in a diverse environment, you can take the same set of facts and another person can see those same set of facts as being totally different than, you know, what you saw. Simon Simon, a Black male attending a private law school in Washington DC confirms that it is all too easy to become comfortable with and locked into ones own Habits of the Mind. He found it truly enlightening to be reminded that facts dont necessarily speak for themselves; instead students from diverse backgrounds can and do look at the same set of facts but reach diametrically opposed conclusions. Advantages are kind of being reminded in a consistent way about differences and different perspectives and the reality of like racial discrimination and things like that, because you have that perspective sort of constantly being reinforced. Marta Marta, a White female attending a public law school in New York City felt educational diversity was clearly a valuable asset. Her thinking was retooled to take account of difference in backgrounds, experiences, and perspectives. It has caused me, and I said this last year too, it has caused me not to be as judgmental about looking at people, and not judging people just based on what they look like, or how theyre dressed, or what physical characteristics they have of any race. Ross I think its always an advantage because a lot of times when you come from certain backgrounds you may be more closed-minded and the experience with different people gives you the opportunity to learn to be more open to other peoples views, beliefs, practices. Tracy Two Washington, DC law students, Ross, a White male and Tracy, a Black female, both spoke of how educational diversity changed them personally for the better. Over time Ross

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) learned to confront his personal prejudices and to refrain from racial stereotypes. While Tracy became more open minded and accepting of other peoples views, beliefs and practices. Ultimately the lesson these students communicate from the perspective of their personal experiences and perspectives is that educational diversity benefits legal education as it has been shown to enhance education and individual learning in other settings. (b) Observed Diversity Principally in Institutional Domain (1) Views About the Law School Environment We asked a series of questions related to law students views of their specific law school. All of the findings presented account for the clustering of students within law schools. Students were asked about the following: i. Perceptions of law school attributes (e.g., competitive: cooperative, hierarchical: lateral) ii. Satisfaction with out-of-classroom law school experiences Law students have rich experiences during law school that include both academic/courserelated experiences and out-of-classroom experiences. Both are integral to the educational setting and are an important part of the legal training of future law professionals. To assess the aspects of the law school environment that exist outside the classroom, students were asked to indicate the quality (from Poor to Excellent) of the several characteristics ranging from friendships to available assistance for job searches. Table 19 shows the percentage of law students by race/ethnicity and gender who indicated that each law school quality was Excellent or Good.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 19. Perceptions and Satisfaction with Law School Qualities by Race and Gender Men Women Survey Item White Black White Black Specific Law School Features (Percent Good or Excellent) Friendships 71.1 67.6 76.2 79.8 Invited lectures at the law school 70.4 74.3 74.1 72.3 Extracurricular options 69.5 81.1 77.9 77.9 Respect for the expression of diverse beliefs 65.2 64.9 69.4 51.6 Out-of classroom interactions with professors 58.9 52.8 62.7 66.7 Opportunities for respectful exchange of political views 55.0 60.0 55.0 45.2 Academic Support Services 54.4 71.4 62.5 64.0 Grading 44.8 37.8 46.5 29.0 Specific Law School Experiences Have a mentor (Percent Yes) 64.5 75.7 70.6 74.7 Conduct independent research (Percent Yes) 56.9 48.6 50.0 48.4 Discuss politics frequently (Percent Frequently) 26.7 29.7 22.1 15.8 Participate in study groups (Percent Yes) 19.7 37.8 24.0 28.4 Law School Climate (Percent Endorsing High End of Scale) Unsupportive of Women-Supportive of Women 82.7 81.1 82.0 76.8 Intolerant of Diversity-Accepting of Diversity 79.6 67.5 77.7 68.1 Unsupportive of Gays Lesbians-Supportive of Gays/Lesbians 71.3 51.4 71.1 55.8 Worsening-Improving 68.0 69.4 64.7 65.3 Unsupportive-Supportive 60.9 64.9 63.0 60.0 Conservative-Liberal 64.8 59.5 65.3 46.3 Socially Exclusive-Socially Inclusive 58.5 62.2 53.9 53.7 Closed to New Ideas-Open to New Ideas 53.9 40.5 55.6 46.3 Competitive-Cooperative 34.2 29.7 33.5 22.3 Hierarchical-Lateral 17.7 16.2 15.4 8.5
Note All items were measured on a four-point, ordinal scale. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the 22 multiple comparisons was p-value of .05 was .002. Items were ordinal, and the response format was Poor (1), Fair (2), Good (3), Excellent (4), with a Does Not Apply/NA option.

Table 19 shows the following general patterns: There was not wide variance in how students viewed and rated their law school by race/ethnicity and gender. Most students were very satisfied with their friendships, invited lecture, and extracurricular options in law school. A large percentage had an influential mentor during law school, and about half the sample conducted their own independent research. Black men were slightly more likely to participate in study groups than White men. 68

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) As Table 19 demonstrates, law school climate questions did not show large variance between either Black and White students or between women or men.. Majorities of all groups viewed most items on the positive end of the scale. However, only a minority of Black men and women found law school open to new ideas. Majorities of all students found law school competitive (rather than cooperative) and a relatively smaller percentage perceived law school as a hierarchical (rather than lateral) environment. (2) Perceptions of Common Legal Cases Respondents were asked to evaluate to what extent six legal cases were relevant to race. These cases were selected because they were generally discussed during law school, particularly in the first year: (1) People v. Goetz (a man charged with shooting youth who approached him for money on a New York subway) (2) Grutter v. Bollinger (a case involving law school diversity) (3) Batson v. Kentucky (a case involving peremptory strikes and the right to serve on juries) (4) Korematsu v. U.S. (a case involving wartime powers) (5) Hamdi v. Rumsfeld (a case about the right of the United States to detain citizens during wartime) (6) Williams v. Walker-Thomas Furniture Co. (unconscionability in a contracts case as grounds to invalidate the contract) Students had the option of responding that they did not recall the case or did not analyze the case during law school. Only a very small percentage of students did not recall analyzing these cases in law school. Table 20 shows the percentage of students who on the basis of their

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) knowledge of the cases, felt that the cases were either Extremely or Very relevant to race. Table 20. Common Legal Cases: Percentage Very Relevant to Race or Extremely Relevant to Race by Race and Gender Men Women Survey Item White Black White Black Grutter v. Bollinger 87.1 93.8 88.7 91.1 Batson v. Kentucky 82.9 88.5 85.3 85.7 Korematsu v. U.S. 80.7 88.9 85.2 73.2 People v. Goetz 58.1 84.6 75.8 84.5 Hamdi v. Rumsfeld 38.3 78.1 60.7 71.4 Williams v. Walker-Thomas Furniture Co. 26.6 61.1 45.5 66.7
Note. All items were measured on a four-point, ordinal scale. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the six multiple comparisons was p-value of .05 was .008. Items were ordinal and ranged from Not at All Relevant (1) to Extremely Relevant (5), with additional options for I never analyzed this case and We analyzed this case but I dont remember it. Percentages in the table are based only those respondents who recalled discussing the case.

Table 20 supports several key findings. Some cases, such as Grutter v. Bollinger, Batson v. Kentucky, and Korematsu v. U.S., showed a high percentage of students who perceived that these cases were Extremely or Very relevant to race. Other cases, such as Hamdi v. Rumsfeld and Williams v. Walter-Thomas Furniture Co., were ambiguous or variable in students perceptions of their race relevance. For these cases, there was substantial variance (spread across groups) in how relevant to race students perceived these cases to be. In most cases Black students perceived the cases to be more relevant to race than did White students, but not significantly so. Across the cases, men and women ordered the cases similarly in terms of race relevance, but a higher percentage of women saw the cases as race relevant. If law school classes included only White students, the full range of voices and perspectives about the nature of common legal cases would not necessarily be present. (3) Race-Related Experiences and Behaviors during Law School Our Third-Year Survey presented several items that concern social and academic intergroup interactions, race-related academic experiences, intergroup contact, and everyday educational discrimination (i.e., microaggressions) that occur by students and professors. In this section 70

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) we focus on social and academic interactions and everyday educational discrimination. All reported statistics take into account that respondents were enrolled in different law schools. i. Social and academic intergroup interactions. We asked students to indicate whether they had experienced a number of different opportunities for (a) intergroup interaction during law school; and (b) academic experiences involving race. Table 21 reports participants responses to the question: During law school, did you. Table 21. Social and Academic Intergroup Interactions: Percentage Yes by Race and Gender Men Women Survey Item White Black White Black Social and academic intergroup interactions Have a study partner different race 34.7 59.5 40.4 47.4 Join a social justice organization 23.4 37.8 38.6 37.9 Have a mentor different race * 17.2 48.6 22.7 41.1 Have a roommate of a different race 16.2 21.6 14.0 15.8 Race-related academic experiences in law school Engage in serious discussions about race with a student of your race 63.5 86.5 63.8 87.4 Broaden race view 60.4 75.7 62.4 74.7 Engage in a serious discussion about race with a student of a different race * 57.7 81.1 61.6 81.1 Take class on race in the legal system 56.4 81.1 59.4 63.2 Take social justice course 38.7 56.8 50.8 57.9 Attend a lecture with race as the topic * 39.5 75.7 41.4 65.3 Make arguments in legal cases related to race * 24.7 48.6 27.1 46.8 Apply for a full-time job to serve community 9.4 18.9 21.9 25.3
Note. All items were measured dichotomously with responses No or Yes. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the 12 multiple comparisons was p-value of .05 was .004. The item stem was: During law school, did you?

Table 21 shows that White and Black students had substantial social and academic intergroup interactions with 35% of White males and 60% of Black males having a study partner of a different race. Among women 40% of White women and 47 % of Black women had a study partner of a different race. In addition most Black and White men and women (minimum of 58% 71

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) to a maximum of 82%) discussed race with a student of a different race and reported that they broadened their race view. A minimum of 40% and a maximum of 76% of all groups reported attending a lecture with race as the topic. Additional findings are: 1. White students were much less likely than Black students to have social and academic intergroup contact whether it involved study groups, having a mentor, living situations, and work for social justice. In a traditionally White law school, White students might have less opportunity to work with a diverse population of students. However, for students of color these experiences are the norm. There is substantial variance as a function of race/ethnicity. 2. Women were more likely than men to work for social justice in a law school organization and to have a mentor of a different racial/ethnic background. For all of these race-related academic variables, there was wide variability as a function of race/ethnicity. 3. A majority of White and Black women reported race-related academic experiences although White women were less likely to report having such experiences in law school as compared to Black women. 4. There was variability by race in discussions about race with others of the same race and in the likelihood of attending special lectures on race. Black students were more likely to have reported discussing racial issues with others of the same race. ii. Everyday Educational Discrimination Students indicated how much everyday educational discrimination during law school they experienced, as set forth in Table 22.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 22. Educational Everyday Discrimination: Percentage A Couple of Times, Sometimes, and Many Times by Race and Gender Men Women Survey Item White Black White Black Students Act as if they are better than you 60.0 70.3 64.1 78.7 Treat you with less courtesy than others 44.8 62.2 53.3 67.0 Treat you with less respect than others 42.0 61.1 47.2 54.3 Act as if they think you are not smart 35.5 59.5 45.0 59.6 Act as if they are afraid of you 22.0 45.9 14.8 38.3 Act uncomfortable around you * 19.1 51.4 15.3 38.3 Act as if they think you are dishonest 8.4 21.6 6.6 17.0 Professors Act as if they think you are not smart 25.0 37.8 24.0 43.6 Act as if they are afraid of you 4.3 10.8 2.5 6.5 Treat you with less respect 15.7 21.6 14.8 33.0 Other Assaults Called names or insulted 10.9 13.9 11.3 17.0 Receive poorer campus service than other students 7.6 24.3 6.6 14.9 Are followed around in stores * 2.9 64.7 2.8 39.4

Note. All items were ordinal. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the 13 multiple comparisons was pvalue of .05 was .004. The item stem was: During law school, how often have the following happened to you? The response format ranged from Never (1) to Many Times (5+ times) (5).

In Table 22 the data show that for all everyday educational discrimination items, White students were less likely to report that they experienced microaggressions compared to Black students. There is particular variability in the items related to other students not acting respectfully, other students acting as if respondents were not smart, other students acting afraid of respondents, respondents receiving poorer service on campus, other students acting uncomfortably in front of the respondents, and especially, respondents being followed around in stores. (4) Race- and Diversity-Related Attitudes about Law School To understand student viewpoints on the potential effects of racial/ethnic student body diversity on their educational experience, we asked about matters related to specific educational diversity benefits. Results are set forth in Table 23. 73

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 23. Judgments about the Effects of Student Body Racial Diversity during Law School: Percentage Agree or Strongly Agree by Race and Gender Men Women Survey Item White Black White Black Challenges all to think about different viewpoints. 68.3 84.8 68.9 59.3 Improves abilities to work and get along with others after graduation in an increasingly diverse society. * 58.4 89.1 73.2 84.6 Had an overall positive effect on my educational experience here. * 54.6 86.7 69.6 91.8 Others in my racial/ethnic group experienced discrimination at my law school. *x 51.1 78.3 61.9 60.3
Note. All items were ordinal. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the four multiple comparisons was pvalue of .05 was .013.

A most significant finding from Table 23 is that substantial and, in some cases, overwhelming, majorities of White and Black men and women Agree or Strongly Agree that diversity improves abilities to work and get along with other after graduation in an increasingly diverse society and that diversity had an overall positive effect on their educational experience in law school. More than half of the students in the sample strongly agreed or agreed with the items asking if there were benefits of racial/ethnic student diversity during their law school experience. Among men, Black students were more likely than others to endorse the belief that student diversity at their law school made them better prepared to deal with a diverse workforce and that student diversity positively affected their experiences in law school. Fifty-eight percent of White males agreed with this effect. Substantial majorities of all students endorsed the item that a racially diverse student body in law school challenges all students to think about different viewpoints. Over half of the sample, and in many cases much more half of the sample, strongly agreed or agreed that discrimination in law school was experienced by someone in their racial/ethnic group. Black students were more likely to report that discrimination was experienced by others

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) in their racial/ethnic group during law school, whereas White male students were least likely to report that it occurred. (5) Students Voices on Institutional Domain: Diverse Perspectives But when youre arguing an opinion and somebody says something else and you think I wouldnt have thought of that in a million years but if they maybe not have had some kind of background influence they might not of thought about that either. Arleen Speaking from San Francisco, Arleen voices essentially the same view as Kate in New York City: educational diversity is indeed a plus factor in learning the law. She points out how classroom discussion of cases and legal opinions is taken to another level when students from different backgrounds exchange perspectives. The learning curve is pushed sharply upward as students benefit from exposure to world views and perspectives different from their own. I think advantages are that it's good just to have different diversity for people to see that everyone can excel at the law, and kind of break down their stereotypes of Blacks and Hispanics, or whatever. Harrah A Black female who attends a law school in North Carolina sees real benefits flowing from educational diversity because White students sharing the classroom with Black and Hispanic students are challenged to rethink and release racial stereotypes. Firsthand evidence of academic excellence across race and ethnicity can create a sea change in peoples thinking about the Other. Yet, people in my [Criminal Law] class who are not White, talking about having been pulled over many times and consistently being asked if they can search the car. And it never dawns on me like how often and pervasive that practice is. It was a huge surprise 'cause I'm not used to thinking like that. Mateo

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Firsthand evidence from non-White students about their experiences with the differential application of laws was revealing for Mateo, a White male attending a public law school in the metropolitan New York City area. These personal accounts give substance to the law, moving beyond the abstract to the real, through the lived case examples shared by other law students who were Black or Latino. I think it's an advantage to have a racially diverse class, if only because it doesn't matter how open-minded I am, if I can't on my own, think of arguments that a particular minority or segment might represent. And once I hear it, then I can engage it. But on my own, my experiences and perspectives just might limit my ability to do that, without support. Kate In a concluding thought, Kate our law student in New York City, specifically notes the value of educational diversity in the classroom. As a practical concern, she acknowledges the value of diversity even for an open-minded student who will still be challenged to consider or understand experiences and perspectives to which they have not been exposed. Educationally, diversity would seem, therefore, to broaden discussions and to enrich learning in the classroom. (c) Observed Diversity Principally in Societal Domain (1) Professional Plans and Law School Meta-Judgments As the law students prepared to move on in their professional lives after graduation, we wanted to learn about their plans and their global assessments of the experience they had during law school. The next two sections reflect students post-J.D. plans for practicing law and serving clients. i. Professional Plans Plans for Taking the Bar. We surveyed law students during Spring 2007 in the months

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) before law school graduation. Nearly all of our respondents (98.1%) said they would take the Bar, and a large percentage (87.6%) indicated that they would take the Bar in July 2007 right after law school. About 5.0% said they would take the Bar in February 2008 (4.6%) or in July 2008 (6.4%). The remainder (1.3%) indicated that they were planning take it after July 2008. Of the 98.0% of the students who knew where they would be taking the Bar, the following states accounted for most of the Bar-testing locations in our law student sample, ordered from highest percentage to lowest: 12.1% New York, 11.7% California, 6.6% Pennsylvania, 6.6% Washington State, 5.8% Massachusetts, 5.6% Texas, 5.7% Florida, 5.2% Illinois, and 5.1% North Carolina. When asked in what state EDP respondents intended to take the Bar exam, students provided the full range of U.S. states. For Bar preparation, 90.0% of the students reported that they will take BAR BRI, 5.3% said they already took a course, and 2.8% said they had not yet decided how they would prepare for the Bar. Less than 2% of the student sample (1.9%) said they would not take a prep course. Employment. About half of the sample (51.3%) was still looking for a job when we surveyed them prior to graduation. For those who had a job, 73.4% had a full-time job in a law-related field (not a judicial clerkship), 18.7% had a full-time judicial clerkship, 2.1% had a full-time fellowship, 1.3% had a part-time job in a law-related field, and 4.5% had other plans. ii. Law-School Meta-Judgments Students were asked to reflect on their paths as lawyers, their performance in law school, and on their overall law school experience. They were asked to give global assessments of their law school, their class rank, their workload relative to others, and their likelihood to pass the Bar:

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Table 24. Law School Meta-Judgments and Professional Plans: Percentage Yes by Race and Gender Men Women Survey Item White Black White Black Law School Meta-Judgments Definitely will pass the Bar the first time taken 73.4 65.7 62.4 81.5 Worked many more hours than my classmates to keep up with law school demands 67.7 93.4 82.0 96.9 Would choose this law school again 63.4 69.4 70.0 55.8 Class rank will be in top 10% 19.8 0.0 21.9 7.4 Professional Plans Intend to be a practicing lawyer in primary job 75.4 70.3 79.2 72.3 When entering law school, intended to practice law 75.1 77.8 76.6 87.2 As of today, accepted a job for after graduation 52.2 59.5 47.8 39.8 Will represent a particular community or social group (e.g., gender, religious, racial/ethnic group, national origin) more often than others 11.7 29.7 17.2 23.4
Note. All items were measured dichotomously with responses No or Yes. Descriptive statistics were adjusted by clustering within law school. * = race effect; = gender effect; x = race by gender interaction. The Bonferroni adjustment for the eight multiple comparisons was p-value of .05 was .006.

Table 24 demonstrates that there was wide variability by race/ethnicity in students estimates of whether their final class rank would be in the top 10% and whether they believed they would definitely pass the Bar the first time they took it. Black students were least likely to report that they would be in the top 10% of their class, yet they were more likely than the other students in the sample to think they would pass the Bar the first time they took it. In addition, women were less certain of their ability to pass the Bar the first time they took it. Though not statistically significant, Black students were more likely to indicate that compared to their peers, they had to work harder to keep up with the academic demands during law school. Most students entered law school hoping to practice law, independent of race/ethnicity and gender. Black women were slightly less likely to intend to practice law at graduation compared to when they first arrived at law school. Men were more likely than women to have accepted a job. Black men and women were divergent on this item: Black men were the more likely to have accepted a job after graduation, 78

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) while Black women were least likely to have accepted a job. White students were least likely to be planning to represent a specific community or social group in their primary job. (2) Students Voices on Societal Domain: Diversity in Practice and Life Well, you know, unless you plan to practice law in a box, youre going to be dealing with all kinds of races when you graduate. So you better have, some of that respect or that appreciation that people can think differently. Not necessarily that they will, but they can. Or they can react differently to certain things. Aaron Aaron, a Black male law student in Northern California, makes the very practical point of how educational diversity can help prepare students for law practice in a world defined by racial and other forms of diversity. For his purposes part of the legal curriculum must be preparation on some level for encounters as a lawyer with people from different backgrounds, with different experiences and perspectives. Just hearing different perspectives; after law school youre going to go out into a diverse world and work in a diverse world so you need to have a grip of some of the issues that other people are facing before you get there so you can be able to handle those cases easier. Michael I think that the advantages, you get exposed to different people, and so you get a chance to interact with different groups of people. So when you go into the real world and you meet someone thats of that similar race which is different from yours, then you kind of know how to interact with them. Talya Michael, who attends a prestigious law school in New York City and Talya, a Black female who attends a public law school in the Washington, DC area, both reinforce the view that educational diversity can add value. Lawyers who are culturally competent will likely be

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) better able to contribute to a society which is becoming increasingly diverse. So, like being in seminar and looking around and seeing its not all White people makes me feel good, not just about [her law school], but about the world. It makes me feel, maybe this is how the world could be. Katina Katina, a White female law student in New York City, crystallizes the potential for educational diversity to remind us not only of our nations founding values of equality and fraternity, but also to help move us towards the realization of these ideals. She talks about how educational diversity in her seminar makes her feel good as a person, feel good about her Law School, and feel hopeful about the future of our country as a multi-racial democracy. Her simple, honest expression contains elements of all the individual, institutional and societal benefits that flow can from educational diversity in Law Schools.

PART IV. CONCLUSION AND IMPLICATIONS OF FINDINGS A. Effects of Educational Diversity on Law Students Attitudes A critical aspect of the EDP has been to study the effects of the law school environment on the development of attitudes and ideas related to race/ethnicity. In this section, we briefly review the main findings from a recently published study using the EDP data set that assesses law students attitudes over time.86 Specifically, the Diversity Effects Study examined the longitudinal effects of the racial diversity of ones law school, student background characteristics, and student intergroup contact during law school on attitudes about student diversity and prejudice at graduation. A prior study looked at the effects of undergraduate experience on diversity attitudes at the start of law school, but the study we review in this section
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Nisha C. Gottfredson et al, The Effects of Educational Diversity in a National Sample of Law Students: Fitting Multilevel Latent Variable Models in Data with Categorical Indicators, 44 MULTIVARIATE BEHAV. L. RES. 305 (2009).

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) accounts for the longitudinal nature of the project.87 Relying on social psychological theory about the effects of intergroup contact on prejudice88 we hypothesized that controlling for student background characteristics and initial attitudes, the racial diversity of a students law school, combined with a students intergroup contact during law school, would increase their law schools diversity of ideas and decrease law students endorsement of racially prejudicial attitudes. The Diversity Effects Study examined four major domains. It focused on (a) Institutional Characteristics which included a schools Racial Diversity Index (how homogeneous or heterogeneous the law school is in terms of student body racial/ethnic diversity), School Enrollment, Law School Selectivity, and Sector (Private, Public); (b) Study Background Characteristics which included age, race/ethnicity, gender, verified LSAT score, political orientation, and family household income during childhood; (c) Intergroup Contact which is discussed below; and (d) Student Attitudes which is also discussed below. 1. Intergroup Contact (a) This measure relies on judgments about the relative level of contact with students of different racial/ethnic backgrounds during law school. (b) Students judged their level of interaction with other law students who were Black, Asian/Pacific Islander, Latino, Native American, and White. 2. Student Attitudes The Perceived Diversity of Ideas was assessed by an agreement scale for these four items: (1) the quality of class discussions at their school; (2) How much their school was characterized by

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Nisha C. Gottfredson et al, Does diversity at undergraduate institutions influence learning and democracy outcomes?, 1 J. DIVERS. HIGH. ED., 80, 80-94 (2008). 88 See GORDON W. ALLPORT, THE NATURE OF PREJUDICE. (1954); Thomas E. Pettigrew & Linda R. Tropp, A MetaAnalytic Test of Intergroup Contact Theory, 90 J. PERS. SOC. PSYCH. 751, 751-83 (2006).

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) respectful exchange of political views; (3) How much their school was characterized by respect for expression of diverse beliefs; and (4) How open their school was to new ideas. Prejudice Factors were assessed by an agreement scale for three items: (1) In America today, every person has an equal opportunity to achieve success (individualism); (2) Because Irish, Italians, Jews, and many other ethnic minorities overcame prejudice and worked their way up, Blacks should do the same without any special favors (symbolic racism); and (3) People at the bottom of the economic scale are probably lazier than those at the top (individualism). Using multilevel structural equation modeling89 we found that, under conditions of (a) greater law school racial diversity and (b) high intergroup contact with different ethnic racial groups during law school, graduating law students perceived their law school as being more open and respectful of diverse ideas (Diversity of Ideas) and were less likely to endorse items that reflect the concept that everyoneregardless of backgroundhas equal opportunity and can get ahead by working hard (e.g., individualism). These effects occurred regardless of race/ethnicity. All students were affected by racial diversity of the law school and high intergroup contact. Figure 1 shows the model that was tested. The model includes individual control variables, institutional characteristics, intergroup contact during law school, and outcomes related to students attitudes about (a) links between individual effort and success and (b) receptiveness to diverse ideas inside and outside the law school classroom. Higher intergroup contact during law school was statistically significantly associated with perceived diversity of ideas (coefficient = .21) and lower prejudiced attitudes (coefficient = .12). In addition, the more heterogeneous a law schools student body in terms of race/ethnicity, the higher students scored on perceived diversity of ideas (coefficient = .25) and the lower students scored on prejudiced attitudes

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LINDA K. MUTHN & BENGT O. MUTHN, MPLUS USERS GUIDE (5th ed. 2003).

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) (coefficient = .54).

FIGURE 1. Final model from Diversity Effects Study showing the mediational relationship of law school intergroup contact on the relationship between attitudes at the start of law school and attitudes at law school graduation. Figure 2 shows the practical significance of the finding related to law school racial diversity, as related to the main outcomes in this study. The racial diversity that we observed in our sample of 64 law schools ranged from relatively homogeneous (RDI = .17) to relatively heterogeneous (RDI = .71). As racial diversity of a law school increases, there are strong increases in endorsements of perceived diversity of ideas and strong decreases in prejudiced attitudes.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012)

FIGURE 2. The practical significance of racial diversity as related to the main study outcomes from Diversity Effects Study. B. Implications of Findings about Educational Diversity

We have identified race/ethnicity as a significant factor associated with differences of sociopolitical attitudes, experiences, discrimination histories, behaviors during law school, and professional aspirations. To the extent that such differences influence discussions in the classrooms and hallways of law schools we conclude that race matters to educational diversity. Race matters, therefore, to the extent that educational diversity strengthens education in ways that benefit students, institutions, and society. We also find that Black students show variance along many dimensions from White students, as do many groups of students of color. Yet, Black students show variance from other 84

DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) students of color along several dimensions. The implication for law schools is that law schools that do not have students of color would not have the same breadth or intensity of different perspectives as would a school with a significant cohort of students of color. But Black students do not always share the same perspectives as either White students or other students of color. A law school that sees any cohort of students of color as presenting a satisfactory diversity of background, experiences, family circumstances, perspective, and expectations is very likely to miss significant aspects of educational diversity. Black students are not necessarily representative in a cohort of other students of color. Our findings are that students do interact and learn from each other. These findings have several implications: Race still matters. Law schools should continue to support and to achieve substantial diversity and should foster and support substantial opportunities for students to interact. Student perspectives on cases differ according to their race and ethnicity. Our data show that if Blacks are not in the discussion, useful expressions of different perspectives may be unavailable with consequent loss of insight, richness, and understanding. Schools need a reasonable number of members of diverse student groups. While in the aggregate there is variability between groups of Black students and groups of other students (groups of White students in particular), an insufficiently large cohort of Black students (and other students of color as well) presents two important concerns. The first concern, addressed in Grutter, is that to derive the maximum benefits of diversity from diverse students, those students must be supported with a sufficiently large number of that group so that an

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) individual will not be isolated or seen as representatives of the entire group. 90 The second concern is that a law school needs an adequate cohort of diverse students, for example Black students, because there exists within-group variability for all of the groups we identified in our survey. All Blacks do not have to think alike for differences to exist between Blacks and Whites. The claim that there are no differences, for example, between Blacks and Whites, because all Blacks do not think alike is refuted by the variability we found. Even with variability at a level in which 80% or 90% of Black students differ in perspective from 80% or 90% of White students, one still needs an adequate cohort of Black students to manifest the within-group variance in a particular instance (such as in a class or some other context in which students interact). Precisely because all Blacks do not think alike, a law school needs an adequate cohort of Black students so that the outlier Black students do not seem to reflect the norm, but are seen as outliers even within the group of Black students. Data in this study do show variances between Black and White students but the data also reveal, for example, that Black students are not monolith such that one or a small group of Blacks are necessarily representative of all Blacks. Law schools, therefore, must work to create and maintain a reasonable level of diversity. How a school may perform at achieving diversity will reflect its applicant pool, which will reflect the efforts it makes to recruit, admit, and enroll diverse students. Law schools must critically assess the effect of the criteria they use to admit students, and the efforts they take to get the students to attend.
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See Grutter, 539 U.S. 306 (2003) and multiple references to argument and evidence on the need for a critical mass of underrepresented minority students to realize the full benefits of diversity.

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DOES RACE MATTER IN EDUCATIONAL DIVERSITY? A LEGAL AND EMPIRICAL ANALYSIS, 13 RUTGERS RACE AND THE LAW REVIEW __ (Issue 2 forthcoming 2012) Ultimately, the enrollment outcomes will reflect a schools good faith and its active efforts to create a diverse student body. The range of a schools practical options to achieve a diverse student cohort will certainly be determined, for better or worse, by the number of diverse students applying to a law school, the number qualified for admission at that school, the number admitted, the number of admitted students who choose to enroll at that school and the number who persist to graduation. C. Conclusion We repeat an observation we made earlier that invokes the rationale of Grutter. Educational diversity is needed to further our highest national interests to educate workers for an increasingly diverse domestic workforce, to prepare qualified professionals for an increasingly diverse domestic society, to compete effectively in a global business world, to enable our military to carry out its mission of national security, to sustain our political and cultural heritage and thereby maintain our society, and to work toward achieving our highest aspiration our dream of one Nation, indivisible.91

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Grutter, 539 U.S. at 332 (emphasis added).

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