With the advent of the new administration in Washington, levels of stress are rising for members of minority groups of various kinds – religions minorities, Latinos, African Americans, recent immigrants, to name just a few.  This has gotten me thinking about research on the effects of stress that perhaps has gone underappreciated in legal academy.

In a provocative article that came out in the American Psychologist this fall, a team of researchers at Northwestern University has suggested that stress related to race contributes to differences in academic performance between students who belong to racial minority groups and students who do not.  This paper is behind a pay wall for now, but much of the research that builds up to it is not, and a PowerPoint presentation that Prof. Adam used presenting the underlying data at Stanford last year is available here.

The article, Psychological and Biological Responses to Race-Based Social Stress as Pathways to Disparities in Educational Outcomes, begins with a concise survey of research on differences in academic performance among different racial/ethnic groups.  Disparities in academic performance track differences in class, defined by parental education and/or by income level, as well as race, but class does not explain all the difference.  The authors, a team consisting of Dorainne J. Levy, Jennifer Heissel, Jennifer A. Richeson, and Emma K. Adam, propose that response to stress may contribute to the explanation.

Psychological stressors, including stereotype threat and perceived discrimination, affect levels of cortisol, a hormone, in the body.  Sustained and elevated levels of cortisol can adversely affect executive functions, including attention and memory – both critical to good academic performance.  Race-based stress may also affect sleep patterns and less, or lower-quality, sleep also affects academic performance adversely.

The analysis and argument of the article builds upon a prior research project that involved all of the authors and several more.  The prior paper, which is not behind a pay wall and is available here, described results of a twenty-year study of cortisol levels in about 120 people, including equal numbers of blacks and whites, beginning in seventh grade. 

Participants in the study reported the degree to which they perceived themselves as having experienced racial discrimination.  The authors of this prior article found in black people a flatter pattern of cortisol over the course of the day, reflecting a lower level of cortisol upon waking and a higher level over the course of the day and into the evening, perhaps as a result of coping with race-based stress. 

For a legal audience, the more recent of the two articles is helpful as a literature review.  Along with prior work by the authors, it also presents a doctrinal provocation.  It offers further evidence of the gap between Supreme Court doctrine on race in the context of education, on the one hand, and life on earth, on the other. 

In doctrine-land, the justices have permitting consideration of race to promote student body diversity and have effectively ruled it out as a policy response to the effects of discrimination in general.  But the article by Levy et al. shows the effects of perceived racial discrimination that persists in the real world today.  If the authors are correct, then race discrimination imposes an ongoing, physically discernible harm – otherwise known as a tort.  

That in turn suggests that there should be a remedy, or at least some sort of policy response.  The challenge for lawyers and legal academics is concocting a doctrinal pathway around the conclusion of Justice Powell in Regents of the University of California v. Bakke, in which he wrote,

[T]he purpose of helping certain groups who[ are] perceived as victims of “societal discrimination” does not justify a classification that imposes disadvantages upon persons … who bear no responsibility for whatever harm…. (438 U.S. 265, 310)

Jonathan D. Glater