Affirmative Action for the Racist in All of Us

Tanya Hernandez in The Huffington Post, June 14, 2013

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By Tanya Hernandez

As a lawyer who examines the development of civil rights throughout Latin America it is quite remarkable to observe the explosion in the adoption of affirmative action policies in the Global South just as the United States Supreme Court is considering further limitations or extermination of affirmative action in the case of Fisher v. Texas. As a decision is expected within the next two weeks, one thing I hope the Court will consider is that research in the field of cognitive psychology reveals that we all harbor biases and that affirmative action policies assist in addressing those biases.

Part of the reason for enduring social hierarchies is that individuals rely on stereotypes to process information and have biases that they don't know they have. These implicit biases, as psychologists call them, are picked up over a lifetime, absorbed from our culture, and work automatically to color our perceptions and influence our choices.

Over a decade of testing with six million participants of the collaborative research venture between Harvard University, University of Virginia, and the University of Washington, called "Project Implicit," demonstrates pervasive ongoing bias against non-Whites and lingering suspicion of Blacks in particular. Some 75 percent of Whites, Latinos, and Asians show a bias for Whites over Blacks. In addition, Blacks also show a preference for Whites.

In the educational context, studies of school teachers indicate that teachers generally hold differential expectations of students from different ethnic origins, and that implicit prejudiced attitudes were responsible for these differential expectations as well as the ethnic achievement gap in their classrooms. This is because teachers who hold negative prejudiced attitudes appear more predisposed to evaluate their ethnic minority students as being less intelligent and having less promising prospects for their school careers.

The pervasive existence of implicit bias in society and its manifestation in the educational setting, strongly suggests that the selection of students can be similarly affected by unexamined stereotypes and implicit biases. Bluntly stated university Admission Offices are not immune from the operation of implicit bias.

But we are not slaves to our implicit associations. The social science research indicates that biases can be overridden with concerted effort. Remaining alert to the existence of the bias and recognizing that it may intrude in an unwanted fashion into judgments and actions, can help to counter the influence of the bias. Instead of repressing one's prejudices, if one openly acknowledges one's biases, and directly challenges or refutes them, one can overcome them.

Affirmative action programs provide admission officers the needed space for acknowledging and addressing implicit bias. Having a race-conscious admissions policy encourages decision makers to consider the accomplishments and potential of students that their unexamined implicit bias might have otherwise overlooked. When institutionally activated, egalitarian goals undermine and inhibit stereotyping.

Furthermore, affirmative action policies also provide the needed sense of accountability with the expectation that Admission Officers may be called on to justify their aggregate decision results to others. Research finds that having a sense of accountability can decrease the influence of bias, and encourage decision makers to self-check for bias. Numerous social psychology studies demonstrate that fair-minded people are usually unable to detect unfairness in their decision making in the absence of aggregate data. Affirmative Action provides the systematic aggregate data to ferret out unconscious bias in admissions decisions by showing any patterns of exclusion however unintentional.

This is why Jerry Kang and Mahzarin Banaji in a California Law Review article, propose that the law of affirmative action be expanded to conceive of the program participants as "de-biasing agents" that help to diminish discrimination. This is because the research demonstrates that exposure to racial group members in non-stereotyped positions helps to decrease implicit bias routed in stereotyped perspectives. Envisioning affirmative action program participants as assisting in the fight against racial discrimination rather than as the recipients of a benefit reinforces the continuing legality of government-based affirmative action as a compelling state interest.

In short, affirmative action simply acts like a pair of corrective lenses for decision-makers for whom a long history of race-based stereotyping would otherwise influence them to unconsciously view applicants of color as presumptively less desirable. The corrective lenses of affirmative action don't in of themselves grant applicants of color coveted positions - they simply permit applicants of color to be seen and thus considered fairly in the first place despite the continuing existence of racism in our society. As long as racism continues to impair our societal vision, affirmative action will be needed as one small corrective measure to ensure the fair consideration of all applicants.

Tanya Katerí Hernández
Professor of Law
Fordham Univ. School of Law

Author of "Racial Subordination in Latin America: The Role of the State, Customary Law, and the New Civil Rights Response" (Cambridge Univ. Press 2013)