Stereotype, Stigma, Education and the Law

Various articulations of the effect of stereotype and stigma have been central to the development of the law in the United States regarding educational equity. The Supreme Court in establishing the separate but equal doctrine in Plessy v. Ferguson explicitly rejected a notion of constitutional concern for the subjective experience of minorities as a result of legal structures. In overruling Plessy v. Ferguson, the Supreme Court in Brown v. Board of Education focused upon the stigma created by segregation as the central justification for ruling segregation to be unconstitutional. The psychological studies of Kenneth and Mamie Clark, referenced in footnote 11 of Brown, have become famous as social scientific research influencing jurisprudence. However, many scholars have since challenged the interpretation of the stigma research by the Clarks, and the efficacy of focusing upon stigma by the Supreme Court. The exploration of the subjective psychological experience of blacks in relation to educational structures has been recently studied in detail by Claude Steele, Josh Aronson, and many others. Such empirical research has suggested that alterations of the context and culture surrounding standardized testing, and in mentoring and instruction, may be able to support greater levels of average black academic achievement. Moreover, some scholars, including participants on this panel, have argued that the continuing stigmatization of disempowered minority groups should be considering in crafting effective legal remedies seeking greater educational equity. Finally, there are those who are suspicious of accountability testing legal regimes such as the federal No Child Left Behind law, because of their belief that such testing inherently stigmatizes minority students as intellectually inferior. The continuing centrality of concerns for stigma and stereotype in regard to race, education and the law is simultaneously complex, powerful, important, and, potentially for some, troubling. This panel will explore the issue of whether, in a post-racial society, jurisprudence and policy should maintain a concern for the subjective experience of specific racial groups. The discussion will articulate a potential distinction between the idea of stereotype and stigma, and discuss whether the emphasis upon one over the other leads to differing philosophies in the search for educational equity. Panelists will tie their discussion of ideas regarding stereotype and stigma to practical contemporary suggestions for policy, litigation strategy, and educational approaches – including in the law school setting – in order to achieve greater racial educational equality.