The topic of this week’s class is “Affirmative Action.” Professors Sturm and Guinier listen as the student facilitator, a light-skinned black woman named Alicia, jump-starts the class debate. To involve her other classmates, Alicia uses her moment on the soapbox to quote from another student’s reflection piece, which refers to the perceived stigma of affirmative action as a “badge of inferiority.”

Alicia has barely finished her sentence when Nancy, a heavy-set woman with twisted braids and round glasses, cuts her off. “I don’t believe in the stigma argument,” she exclaims. “I have never felt stigmatized by affirmative action. Other people might have, but I don’t think it matters.”

Professor Guinier, intrigued by this outburst, leans forward and asks, “Why didn't it matter to you?”

“Why didn't it matter to me? Because I felt I had worked really hard to get where I was,” says Nancy, firmly placing both hands on the desk before her. “I also felt that this goes back to the privilege article we read. Other people have other kinds of privileges that I didn't have. People don’t feel stigmatized when their parents get them a job because their parents are a partner at a law firm.”
Juan stops twirling his pen for a second to ponder upon Nancy’s thought process. "That’s interesting because I know that I did feel a certain stigma. And I know from reading the reflection pieces there is another person in this class who had a very similar background or upbringing,” he says, with a secret smile, not revealing the identity of the writer. “When they were at the top of their class in elementary school or junior high, they were the golden child or rather—no, the brown, sienna child.” The other students grin at this slight, but apropos, lapse in metaphor.

Juan continues, “You get to college and you do really well. Then you get to law school and everything shifts, and you wind up wherever you wind up. It is not where you are used to being. And then you'll be walking down the hall and you'll hear ‘Oh, so-and-so is here because they're black’—especially when there are only one or two people of color in the class.”

“What about stigma in relation to merit?” asks Alicia, the student facilitator. “Let's say an affirmative action policy takes merit into consideration and will lower a test score that is not lowered for another candidate. Do you think that stigma plays into it then?”
Always quick-witted, Nancy responds, “No, because I think the tests are biased.”

“How do you know the tests are biased?” asks Professor Sturm, encouraging elaboration.

“You just know,” says Nancy. The professor who has posed the question raises an eyebrow. Nancy feels compelled to divulge a personal anecdote by way of explanation. “Okay, it’s just like when I sit down and sometimes I do the New York Times' crosswords puzzle, and you see the questions that they ask and it’s biased! Certain people that grew up in white communities are more likely to get those answers because they have been exposed to those things all the time. If my LSAT was based on black culture, I think I would have gotten a 180.”

Bob, a serious-looking boy outfitted in prep school attire, has latched onto Nancy's critique. He looks at her intently while chiming in, “I was thinking about what Nancy was saying, and it makes sense to me because there are certain working class people of all races who would probably have a difficult time with the New York Times crossword puzzle because of the way they were raised. And if they were given a crossword puzzle on NFL football then they would probably do a lot better on it, because of the way they were raised. I am wondering whether or not you believe that maybe African Americans or women who come from somewhat privileged backgrounds should be taken off of affirmative action?”

Nancy nods. “Yes, I think that if you come from a privileged background you shouldn’t be a recipient of something like affirmative action because you are displacing someone else who actually was disadvantaged.”

Now, Lisa, a woman with wavy chestnut hair, tries to cut at the topic from a slightly different angle. “When I think about affirmative action, I don't think about the immediate economic effects as much as the long term effects.” She folds and refolds her hands. “Take an employer, who has African-Americans or any minority for that matter in their work situation. Now they are exposed to another type of person from a different socio-economic background. Affirmative action is a way to educate and familiarize people with someone's circumstances who they may not have been familiar with beforehand. I think that would help decrease ignorance or discrimination in a long term.”

Whispered murmurs of approval can be heard about the room. Bob sits up straighter in his seat and counters, “This may be true, but one of the problems of affirmative action as it stands now is that a larger percentage of its rewards tend to go to upper-class African Americans who have more to begin with.”

“So the point of affirmative action is to eradicate poverty?" asks Alicia, skeptical.

“Well, I don't know if it is to eradicate poverty," mumbles Bob, regathering his thoughts for a moment. “But I think the way the program is set up the rewards are economic.”

Lisa purses her lips, visibly perturbed. She looks at Nancy and then looks back at Bob. “I just don’t understand how the rewards can be categorically classified as always economic,” says Lisa. “If I wanted as a well-educated white woman with a family that is very supportive and has some connections, that wouldn’t help me if I wanted to get a job as a longshoreman. If that had always been my dream. If I wanted to get a job rounding up cattle on a ranch. There are a lot of jobs that are closed off to me as a woman that don't pay very much. I could make a perfectly good living in other ways-but there are doors closed to me just because I am a woman unless there is an affirmative action policy or some other remedy for discrimination. Access counts for something. Knowing the doors are not closed to you based on gender or race counts for something, in how accepted you feel by your society. I think that counts for something more than just money.”

Let us now subject the dialogue above to a play-by-play scrutiny:
Nancy reacts emotionally to Alicia’s comment on stigma. Juan disagrees with Nancy, using his own experience as a reference point. Bob expands on Nancy’s argument by tying in issues of class privilege into the mix of race and gender issues, aligning himself with Nancy in a surprising way. Alicia questions Bob’s assumptions as to the purpose of affirmative action, pressuring him to refine his thought process. Lisa bristles in response to Bob and Nancy’s economic arguments and attempts, instead, approaches the problem in a new way by asking: what does access symbolize?

Discussions about sensitive controversial issues, such as affirmative action, strike close to home for many of our seminar participants. Whether on a conscious or subconscious level, those involved in these talks frequently discover that race and gender often lie at the very axes of their individual identities. Thus, these debates provoke strong emotions and reactions and, inevitably, conflict. Despite the negative connotations associated with “conflict,” a clash of free wills can prove to be a crucial device in intellectual progress. Instead of smoothing over discussions with a superficial gloss of consensus, exposing conflict allows students to delve deeper, rethinking issues. Embracing conflict frees students from surface-level skimming and places the pressure on them, instead, to go deep-sea diving for thorough answers.

The question remains, then: how do we harness conflict into a creative, rather than destructive, force? We use a dialectic style that seeks to inspire, rather than destroy, original thought. This becomes the basis for what we term the “failure theory of success,” whereby the process of error and correction is used to refine the pursuit of learning.

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