Deficit Frame Dangers
Jonathan P. Feingold
Boston University School of Law, jfeingol@bu.edu
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Civil rights advocates have long viewed litigation as an essential, if insufficient, catalyst of social change. In part, it is. But in critical respects that remain underexplored in legal scholarship, civil rights litigation can hinder short- and long-term projects of racial justice.
Specifically, certain civil rights doctrines reward plaintiffs for emphasizing community deficits—or what I term a "deficit frame." Legal doctrine, in other words, invites legal narratives that track, activate, and reinforce pernicious racial stereotypes. This dynamic, even in the context of well-intended litigation, risks entrenching conditions that drive racial inequality—including the conditions that litigation is often intended to address. To concretize the theory, this Article explores how deficit frames can influence the behavior of four key constituencies who impact—and often undermine—the pursuit of educational equality.
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Introduction..............................................................................1237
I. The Basics : From Bias to Behavior...................................1239
II. Unintended Consequences.................................................1241
A. "Nice White Parents".......................................................1241
B. Teachers: Same Performance, Different Score.................1249
C. Voters: When Racial Disparities Beget Regressive Policies .... ..........................................................................................1253
D. Administrators: ................................................................1261
Conclusion.................................................................................1264
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In Civil Rights Catch 22s,1 I detail how certain civil rights doctrines reward plaintiffs who deploy narratives that track racial stereotypes and regressive theories of inequality. Educational adequacy claims, in which public school students challenge the substantive conditions of their education, offer a prime example.2 under prevailing doctrine, for any chance at success, litigants must establish that they have been deprived a "minimally adequate education."3
This high burden incentivizes plaintiffs to conjure an image of community impoverishment and academic incompetence.4 Strategic plaintiffs respond in kind. Yet in so doing, they deploy statistics and stories prone to activate and entrench invidious stereotypes about Black and Brown students. The litigation, in other words, can calcify conditions that often drive inequality—even if the plaintiffs prevail.
In Catch 22s, I explore this dynamic through Gary B. v. Whitmer, a 2016 school financing lawsuit that targeted several of Detroit's most under-resourced public schools.5 The litigants, low-income Black and Latino students, claimed that Michigan had deprived them access to "foundational literacy"—that is, the basic ability to read and write.6 The plaintiffs (and their attorneys) anchored this claim to a litany of anecdotes and data documenting the community's
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academic impoverishment and underachievement.7 In effect, the Gary B. plaintiffs framed themselves and their community through a narrative of poverty and illiteracy.
Given doctrinal demands, this "deficit frame"8 made sense; in fact, it propelled the plaintiffs to a historic victory before the U.S. Court of Appeals for the sixth circuit and a sizable settlement that followed.9 Yet even if rational and efficacious from a litigation standpoint—and even though the plaintiffs' victory warranted celebration—the framing posed non-trivial risks. Specifically, by mobilizing a legal narrative that tracks pernicious anti-Black stereotypes, the lawsuit risked entrenching structural and behavioral forces that perpetuate racial inequities in Detroit and beyond. In Catch 22s, I surface this threat.10 Here, to deepen the analysis, I explore how exposure to racialized deficit frames could lead key stakeholders to engage in conduct or adopt policies that hinder educational equality. Specifically, I focus on the following four constituencies: (1) white parents, (2) teachers, (3) voters, and (4) school administrators.
This analysis, which focuses on individual actors, is inherently limited. Nonetheless, I highlight the relationship between legal narratives and stakeholder behavior for two principal reasons. First,
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these stakeholders—through their individual and collective action—have an outsized impact on America's educational landscape. Second, this analysis illuminates how racial inequality often flows from intersecting individual, structural, and discursive sources. Before turning to this analysis, however, I ground the conversation by briefly reviewing the racial biases literature.
The extensive research on racial biases is not new to legal scholarship.11 This review is correspondingly concise.
To begin, a "bias" refers to any number of systemic errors in human judgment or decision-making that deviate from a neutral baseline.12 Biases pertaining to social categories such as race, gender, or age often comprise one of two constructs: "attitudes" or "stereotypes."13
An attitude is an association between a concept or category and an emotional or evaluative valence—e.g., positive versus negative or like versus dislike.14 If a person prefers musicians to lawyers, or K-Pop to Alt-Rock, those preferences constitute attitudes. A stereotype, in contrast, refers to an association between a concept or category and a particular trait or characteristic.15 If a person thinks all
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lawyers are dishonest "ambulance chasers," or that all musicians are irresponsible, those associations constitute stereotypes.16
In recent years, implicit biases have garnered increased attention within lay discourse and academic scholarship. Implicit biases refer to attitudes and stereotypes measured through indirect techniques.17 The most well-known indirect measure is the Implicit Association Test ([AT).18 In contrast to implicit biases, explicit biases comprise attitudes or stereotypes measured through direct techniques.19 This includes, for example, survey instruments that ask respondents to share opinions about, e.g., different ice cream flavors; social media platforms; or racial groups.20
Implicit biases, including those concerning racial groups, are pervasive and consequential.21 Specifically, implicit biases have been shown to influence human judgment and decision-making across domains, particularly in socially sensitive contexts such as interracial interactions.22
So where do these pervasive biases come from? Often, implicit (and explicit) biases derive from vicarious experiences with individuals from racial out-groups.23 Vicarious experiences refer to
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"imagined experiences—both fictional and nonfictional—that are mediated through stories told by parents, teachers, friends, and increasingly by the electronic mass media."24 As a result, popular culture—transmitted through traditional mass media, local news, and social media—comprises a potent conduit of racial biases.25 Civil rights attorneys and litigants, through the legal narratives they disseminate, can influence the racial narratives that circulate within this information ecosystem.26
Building on this overview, I now turn to our four featured constituencies. Although a thought experiment of sorts, the following analysis illuminates how well-intended legal narratives can produce perverse effects.
A. "Nice White Parents"27 : The Neighborhood Profiling Trap
Racial segregation has become an enduring and defining element of American life.28 Segregation—and housing policy more broadly—
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is also inseparable from an education landscape where race and class often dictate a student's access to well-resourced public schools.29 This dynamic exists against a historical backdrop in which predominately white communities have hoarded critical resources.30 The foregoing suggests that reducing racial segregation offers one path to better equalize educational opportunities.31 We might ask, accordingly, how one would undertake such an effort?
To start, federal law offers little help.32 As education scholar Erika Wilson summarizes: "the Supreme Court's remedial school desegregation jurisprudence places the problem of school segregation caused by residential segregation outside the purview of the federal courts' remedial powers."33 In other words, absent a facially discriminatory policy, the Supreme Court has effectively inoculated
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racial segregation in our schools and neighborhoods from legal attack.
Recognizing the limits of litigation, an alternative strategy might instead focus on influencing behavior. More precisely, one might try to incentivize upper- and middle-class white parents to desegregate their communities—and thereby make the resources in those communities accessible to all. Among other challenges, pro-white racial biases—explicit and implicit—continue to inform housing preferences contrary to such efforts.34 This includes the presumption that whiter neighborhoods have better schools—the precise bias that cases like Gary B. risk activating and reproducing.35
Imagine a white parent in search of her first home.36 Among other considerations, our parent prioritizes high-quality schools.37 To gauge options, she spends an afternoon driving through neighborhoods scattered around the city where she lives. As she drives, the parent attends to various environmental cues that signal each neighborhood's socioeconomic make-up. Why care about class? Because even if our parent is not an expert in public school financing, she intuits—correctly—that a wealthier district (with its higher tax base) means more educational resources...
