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Excerpted from: LaToya Baldwin Clark, Beyond Bias: Cultural Capital in Anti-discrimination Law, 53 Harvard Civil Rights-Civil Liberties Law Review 381 (Fall, 2018) (307 Footnotes) (Full Document)


LaToyaBaldwinClarkThe Individuals with Disabilities Education Act ("IDEA") guarantees a "free appropriate public education" ("FAPE") for all children with disabilities. Not all children with disabilities, however, have equal access to appropriate education; race and class disparities abound. Scholars have long shown that black children are over-represented in the disability categories that rely heavily on professionals' discretion and biases, as well as those that carry the most stigma. Bias against non-white children, and particularly black children, is the consensus explanation for racial disproportionality in the IDEA's benefits (as measured by disability category and services costs). Special education is a "dumping ground" for black children that teachers deem uncontrollable, unmotivated, or unintelligent. For many black children, placement in special education represents a distinct disadvantage because they are separated from their non-disabled peers, receive few educational supports, and experience high rates of discipline, akin to a new form of school segregation in subversion of Brown v. Board.

Scholars have noted white middle-class overrepresentation in receiving special education services particularly associated with the learning disabled label. But scholars have largely neglected another perplexing racial problem in special education. White middle-class children are overrepresented among children receiving special education resources for autism. The consequences of an autism label typically include certain advantageous outcomes for children compared to the consequences of the emotional disturbance and intellectual disability labels that are typically given to black children: more educational resources, such as special aides and expensive therapies, higher high school graduation rates and lower rates of suspensions and expulsions. Yet, autism too relies on professional biases and subjective opinions, and carries a stigma. Autism, as a spectrum disability with "a wide range ... of symptoms, skills and levels of disability," shares symptoms with many other disorders and little research suggests that "actual" rates of autism are higher in whites than in other racial groups. Thus a puzzle emerges: why has autism come to be coded as "white," while other disabilities, such as intellectual disability and emotional disturbance, are coded as "black"?

Rather than attribute this state of affairs to school bias alone, either against black children or in favor of white children, I argue that scholars should pay more attention to the special education allocation process. The IDEA and accompanying regulations allocate resources according to a cultural expectation of ardent parental advocacy. The statute and regulations grant parents extensive formal procedural rights to ensure their active influence over the allocation process. But a parent's ability to effectively use those formal procedures requires what sociologists term cultural capital--communication patterns, knowledge, behavioral strategies, and dispositions successfully navigate the cumbersome process and capture what are scarce benefits hidden behind a general guarantee of appropriate education.

As used here, culture does not refer to values. Rather, I draw on the work of several sociologists to present a view of culture not often encountered in legal scholarship. Cultural behaviors are akin to what sociologist Ann Swidler called "strategies of action," behavioral modes individuals in stratified groups employ to engage in social spaces familiar to the group. Sociologist William Julius Wilson describes culture as

the sharing of outlooks and modes of behavior among individuals who face similar place-based circumstances ... or have the same social networks. Therefore, when individuals act according to their culture, they are following inclinations developed from their exposure to the particular traditions, practices, and beliefs among those who live and interact in the same physical and social environment.

In other words, groups differ in culture because they differ in their structural constraints, characterized by the non-random distribution of key resources, including economic capital (wealth), social capital (social connections) and the "goodwill, fellowship, mutual sympathy and social intercourse" necessary "to influence decisions and to develop sustained, interest enhancing relationships with others."

Sociologist Pierre Bourdieu and his intellectual followers developed the concept of culture as capital. Culture as capital refers to the sets of knowledge, behaviors, and dispositions which are valuable in a social space because they can be converted or exchanged for scarce resources in the competitive social space. These spaces--known as "fields"--allocate resources according to formal and informal knowledge and behavioral rules; thus, what an individual knows and how she behaves will allow her to convert that knowledge and those behaviors into other resources valuable in the space. Culture helps us understand the sociology of elites, or those "with vastly disproportionate control over or access to a resource." This Article argues that elites use cultural capital to reproduce advantage despite the leveling effects of an anti-discrimination legal scheme and seemingly neutral rules governing benefits allocation.

Consider an analogy: a social setting that allocates a scarce resource operates like a card game where "some groups will be excluded and others included." Many games are not just games of chance; to win, players must have not only the appropriate cards, but an understanding of the rules, and strategies to employ their cards within the rules to their benefit Social stratification by race and class, etc., determines the non-random distribution of the cards; some groups have more access to and accumulation of economic resources and social capital through their embeddedness in resource-rich social networks. Accordingly, those with "better" cards start out the game in a more advantageous position than other players. The rules matter, however; a player may have two great cards that will win in blackjack, but if the game is Uno, their cards are worthless. Even if a player has the right cards and knows the rules to the right game, they may still lose the game because they did not have the right strategy to win.

Now, legal scholars studying inequality typically avoid attributing resource disparities to culture, hoping to avoid victim-blaming. Unfortunately, a key insight from sociology argues that ignoring culture incompletely accounts for the processes contributing to the staying-power of categorical inequality and stratification. Furthermore, this scholarly reticence is unwarranted if we want to understand the complexities of the social reproduction of privilege. Anti-discrimination law sometimes misses how privilege is reproduced because of its focus on disadvantage, discrimination, and bias.

Being attentive to culture requires more than understanding what Professor Charles Lawrence named "unconscious racism," or what others have described as structural racism, white privilege, or implicit bias, all of which have their own causal power in perpetuating stratification. Culture, however, plays a theoretically distinct role in accounting for race and class stratification by focusing on how people who interact with the law differ in their own behaviors and relationships with others in the social space while attempting to capture legal benefits.

Being attentive to cultural capital can help legal scholars and policy makers reimagine laws meant to combat stratification, not just discrimination. Stratification "refers to the unequal distribution of people across social categories that are characterized by differential access to scarce resources." As explained later in this Article, neither the discriminatory intent nor disparate treatment doctrines are equipped to interrogate cultural privilege as a key aspect of inequality. By paying attention to culture, legal scholars can question the hidden cultural assumptions embedded in the law and the ways in which cultural capital is unequally distributed.

This Article proceeds as follows.

Part I describes the IDEA as a successful anti-discrimination scheme that disrupted educational discrimination against children with disabilities. This Part also highlights the problem of racial and class stratification in the IDEA's resource distribution. Part I details how the law has failed many black children, especially those labeled as emotionally disturbed or intellectually disabled. In contrast, the Part describes the different racial pattern for autism. Part I ends with questioning the consensus view that these racial patterns arise solely due to teacher and school bias or discrimination.

Part II describes the cultural landscape of special education, providing a detailed explanation of the cumbersome special education process that every parent must face to receive special education benefits. It shows how, even in a legal scheme that guarantees a "free appropriate public education" to all designated as a "child with a disability" schools must develop a way to ration those benefits because many do not have adequate resources to effectuate the federal entitlement. Part II also situates the IDEA's assumptions about culture in a broader sociological discussion of how elite parents reproduce their privilege through schools. In schools with significant racial achievement and opportunity gaps, white middle-class children tend to benefit from expectations of parental engagement and participation, forms of cultural capital that find its corollaries in special education.

Part III provides details of how white middle-class parents may come to acquire cultural knowledge about disability and the IDEA and how they may use it strategically to secure scarce resources for their children.

Part IV makes the normative argument that legal scholars should pay closer attention to the role of cultural capital in stratification, and especially in the reproduction of privilege. While law is understandably concerned with bias and discrimination, it has paid relatively little attention to the ways in which elites can reproduce privilege through effective use of anti-discrimination or entitlement legal schemes. This Part ends by suggesting legal reforms to reduce the influence of culture on how legal institutions allocate scarce resources.

Before continuing, four points.

First, the reader may be thinking about an age-old question: is not this really only about class, especially in the highly legalized special education context? Part II dives into this question in earnest, but the short answer is that race and class can rarely be separated, even when comparing the experiences of the "middle-class." The middle-class experience is not homogenous within the class or within race. Ultimately, class and race are inextricably bound in any discussion of stratification.

Second, while I am oversimplifying the world as it relates to race and class, I attempt to be careful to not make essentialist claims about either race or class. Blackness is not a monolith, nor is whiteness. Not all people we categorize as black (white) experience their blackness (whiteness) in the same way. To the extent I do so, it is unintentional. However, I do maintain that while how blacks and whites "experience existing racial structure varies ... all still experience them."

Third, I am not arguing that racism, in all its forms--implicit bias, white privilege, unconscious bias, etc.--does not affect the distribution of special education resources. It does, and in powerful ways already explicated by the racial disproportionality literature. My argument is that cultural capital is a direct mechanism through which societal stratification comes to influence the distribution of special education resources. Racism plays a role in culture, as culture arises from social positioning which itself is characterized by unequal access to resources and power and inequality driven by bias and discrimination. But my claim is about how race and class injury can be derived from how beneficiaries interact with legal allocative processes that are neither products of unconscious racism nor overt discrimination. Here, the question is about how stratified groups acquire knowledge and employ strategic behavior to take advantage of the law's benefits.

Fourth, although my critique is grounded in race and special education, the phenomenon I describe can occur within any axis of stratification in any social space where dominant groups and subordinate groups compete for resources. Race and disability, therefore, are simply "types" of the phenomenon.

. . .

This Article argues that culture matters. It makes a novel contribution by showing that distributional issues in law must question the ways in which access to cultural capital differentiate groups in their attempts to secure legal benefits. In other words, when a legal scheme requires beneficiaries to do something to receive benefits, cultural capital has the potential to shape distributional inequalities along familiar lines of race and class, even within an anti-discrimination scheme.

This Article aims to make a theoretical diagnosis of the problem of culture. Solutions to problems of culture in the law may not have a clean legal answer, let alone one that can be sufficiently explored in one Article. But, as sociologists Mario Small et al. suggest in their review of the literature on culture and poverty, the goal is to "work toward identifying new approaches and new questions that may result in more exhaustive, precise, and complex grasp of the processes and mechanisms that lead to the reproduction" of inequality. Furthermore, this work complements current approaches to inequality, because it does not

deny the importance of macrostructural conditions, such as the concentration of wealth and income, [or] the spatial segregation across classes and racial groups ... Instead, we argue that since human action is both constrained and enabled by the meaning people give to their actions, these dynamics should be central to our understanding of the production and reproduction of ... social inequality.

A focus on culture also allows us to address non-racial problems. While this Article focused on race and class, the phenomenon concerns any set of dominant and subordinate groups in a social space of contested resources.

Earl B. Dickerson Fellow and Lecturer in Law, University of Chicago Law School.