Ending the Need for Affirmative Action vs. Arguing That It's Unconstitutional

It's impossible to read something like this without wondering what the author is thinking.

Martin Luther King’s Dream Unconstitutional?

Fifty years ago today, Martin Luther King, Jr., spoke these immortal words: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” He would have been mystified, one imagines, by the question presented in Schuette v. Coalition to Defend Affirmative Action: “Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.”

But for the title of his post, I might agree - King may well have been mystified by why, fifty years after his speech, the Supreme Court would be asking that question. In the context of his time, King would certainly have seen such an effort by a state as being intended to slow integration and stymie minority enrollment in colleges. But you can't look past the title....

Is there something in the history of the civil rights movement, or in King's speeches, that would suggest that King believed that affirmative action was or should be unconstitutional? Does the author of the comment, law professor Nick Rosenkranz, believe that King would have been unaware of the history of "equality" enforced after Plessy vs. Ferguson, through the Jim Crow era? Does he believe that King couldn't recognize that the sudden alarm about affirmative action and the need for the constitution to be "color blind" came largely from the same politicians who had absolutely no problem with state-imposed, state-enforced segregation? Unless Rosenkranz sincerely believes that King's dream has been fully realized, why would Rosenkranz believe that King would support a state-based initiative that he would likely see as intended to keep its vestiges in place as well as to prevent future corrective action if race relations worsen?

Although it would be more than a bit counter-factual, if I were to assume that Rosenkranz believes that we now live in a society in which King's dream has been fully realized, I might be able to construe the question a bit more charitably. After all, it is possible that Rosenkranz sincerely believes that discrimination is a thing of the past in American society. His question might be interpreted as, "Once discrimination has been extirpated from society, is it unconstitutional for a state to prohibit remedies to discrimination that are permitted by the federal constitution". But under this interpretation Rosenkranz would be projecting onto King the naive belief that it should be up to state governments to determine whether or not discrimination still exists, while in fact King was acutely aware of how many state legislators and governors were embraced segregationist policies which they were happy to call "equality". He would also be projecting onto King the quaint notion that once discrimination is eliminated from a society it can never return in any form.

Rosenkranz's underlying argument has a circularity, similar to that of Chief Justice Roberts' simplistic statement, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race". It's reasonable to believe that King would agree with the goal of eliminating discrimination, but I am skeptical that he would hop on Roberts' bandwagon by declaring that the place to start is through eliminating corrective measures that the state can apply in response to discrimination.

I expect that if Rosenkranz were to have, in earnest, presented this argument to King, he would have received a patient lecture about how measures to correct discrimination will inevitably have an impact on people who did not directly participate in the discrimination, including some people who helped bring about its end, but that it's not possible to impose remedies for past discrimination without doing so. That the minor impact of a well-managed affirmative action program on those who are not beneficiaries of the program is outweighed by the significant need to correct the historic wrong and to integrate society. And that even if his dream were to become reality, you can never say "It will never happen again" and a government should not tie its hands - after all, once King's dream is fully realized even if an affirmative action program remains nominally in place it would be dormant. King might explain that even in the context of his realized dream, there would be cause for to be skeptical of the motives of a faction intent upon preventing the use of similar remedies in the future, and that cause for skepticism would be greater in relation to a faction that was working hard to end corrective measures prior to the realization of his dream.

Ultimately, I expect King would explain that there is a significant difference between asking, "How can we do this better," or "What alternative approaches might we take that could be even more effective, or strike a better balance between competing interests," and "How do we stop this in its tracks". Would Rosenkranz grasp the difference?

When People Aren't Impressed With Your Arguments... It May Be That They're Unimpressive

I've commented before on the concern trolling about minorities getting into schools that are above their academic reach, then finding themselves at a disadvantage in the job market due to their performing below the level of their 'qualified' peers. I've never been impressed with the argument. For elite schools, branding remains a significant issue - as G.W. Bush can tell you, better to graduate from Harvard and Yale with a C average than to get straight A's at a college that matches your academic profile. For non-elite schools, I find it difficult to believe that you can make a sufficiently granular analysis.

One of my classmates, who did very well in law school (magna cum laude), shared a story during our first year. He had gone to the administration to try to defer his enrollment and, according to him, was told he was lucky to be admitted in the first place, "Do you know how many students we admit with your GPA?" A professor who had been one of those law students who seems able to sneeze in a blue book and have the professor issue an A+ recounted how he had been a C+ student as an undergrad and was absolutely shocked when he found himself consistently at the top of his class during his first year of law school. After that, prestigious federal clerkship, Supreme Court clerkship, and a few years later a faculty appointment at a top ten law school. Another professor, despite being somewhat narcissistic, shared a story about how he stumbled through law school, applied very late for a clerkship because he didn't have a job and just changed into a federal clerkship, stumbled through a couple of years of legal practice, didn't care for it, applied for a law professorship on a lark and ended up at a top law school - nobody looking at any of his numbers would have seen any of that coming. I didn't think he was a particularly good law professor, but there he was.

The "they're in schools in which they can't compete" concern trolling wouldn't apply to the people I just described - they weren't minority students. Exceptions don't prove a rule, but if you overgeneralize you risk missing some important elements of law school and career success. Let's also recall, perhaps the most famous "diversity student" in law school history was J. Danforth Quayle. I expect that he did struggle in law school, but....

Back in 2005, I specifically commented on an article by Richard Sander, what I considered (and consider) to be an unimpressive argument about minority enrollment in law schools. At the Volokh Conspiracy, one of the champions of this argument, David Bernstein, complains,

Sander, a Ph.D. economist, provides data that supports an inference that literally everyone in the legal academy already knows–that a great many students who are admitted as “diversity” admits wind up struggling in law school, leading to a much higher rate of failing out of law school and bar exam failure for such admits than for their white and Asian peers. Surely, if a key purpose of affirmative action is to aid these students one should be able to have a reasonable debate about whether the benefits of the policies as currently instituted outweigh the harms to their supposed beneficiaries, and, if so, whether reforms along the lines that Sander proposes would be a good remedy. Or perhaps law schools and related institutions would first open up their data to researchers to everyone could get a better handle on the underlying issues.

The argument here approches,

1. Many students admitted as "diversity" students struggle in law school, and it has been argued that minority students admitted under law school diversity programs have more difficulty graduating and getting employment than similarly qualified minority students who are admitted to less rigorous schools.

2. Law schools won't give Sanders the data he wants, in order to be able to better document his assuptions.

3. Therefore, law schools know Sanders is right and are collectively covering up "the truth."

Another possibility is that law schools aren't impressed with Sanders' scholarship, and thus aren't willing to expend resources and manpower to extract and provide a FERPA-compliant data set consistent with Sanders' requests. Yet another is that law schools don't want anybody to give serious scrutiny to their claimed job placement data, and to find out how partial, self-serving and manipulated their publicly available placement and salary numbers usually are.

Bernstein quotes Sander,

"Why have none of them empanelled neutral social scientists to evaluate and report on the mismatch debate? On this issue, many otherwise distinguished academics have fostered an environment in which data is inaccessible and honest debate is profoundly chilled."

I'll concede, if you are a professor and want to write a research paper on why minority students should be excluded from diversity programs, based upon weakly reasoned extrapolations from limited data, and either show no interest in making a similar analysis of non-minority students or admit that the J. Danforth Quayle types see significant benefit but "that's different", you're probably going to have difficulty getting your peers to take your research interests as seriously as you would like. But I'm not seeing how "Your data is insufficient to support your argument" would "chill" the research. I'm certainly not seeing how, "Why don't you care about the relative success and failure of other beneficiaries of diversity programs," is anything but a fair response. And I'm not seeing the fact that law schools don't want to put resources into pulling data for such research as proof that they know its proponent will be proved correct. Frankly, there's reason to be skeptical of any scholar who claims to know something as a matter of near or absolute certainty, but simultaneously admits that he lacks the data necessary to support his argument.

Thus, I can think of at least one highly-regarded researcher in legal academia who lost a job, at least in part, for not regarding the mismatch issue with sufficient wariness.

And Sharron Angle "knows" that there are many "domestic enemies" in Congress. The person has supposedly been drummed out of academia - a list of one could bring us back to my earlier allusion to trying to prove the rule based upon an exception; but a secret list of one is completely unconvincing. Sander appears to be the leading proponent of this argument, David Bernstein cheerleads his arguments, and neither seem to be at risk of job loss.

"Indeed, the Stanford Law Review staff who published Systemic Analysis were pressured into publishing only critical response pieces, even though distinguished academics who (in article outlines submitted to the law review) offered more balanced assessments sought to participate."

We now live in a world with these crazy things called "websites", where anybody can post anything they want for the world to see, at minimal cost. If a stack of convi,cing articles, supporting Sander's positions, exist, there is no reason why they would be unavailable.

Back to Bernstein,

It’s a good thing we don’t burn heretics at the stake anymore.

"Some people think my research is garbage, others think there might be something to it but won't attach their names to my present body of work, and some people object when I speak at certain conferences - just don't ask me for specific examples" = being buned at the stake? Melodramatic, much?

Would it be controversial for a researcher to say, "I am very interested in identifying the factors that predict how students perform in law school, and how law school success translates into career success, so I would like detailed, granular data about admissions, grades, and placement so I can look at the issue from the greatest number of angles"? I suspect not. So why not start there?

You Won't End Racism With Shallow Bromides

How would you describe the following statements:

• The way to stop deficit spending is to stop deficit spending.

• The way to stop the civil war in Syria is to stop the civil war in Syria.

• The way to stop overfishing in the ocean is to stop overfishing in the ocean.

• The way to stop climate change is to stop climate change.

• The way to stop our nation's dependency on foreign oil is to stop our nation's dependency on foreign oil.

Are any of those observations helpful? Useful? Insightful? Or are they banal? Circular? worthless? Mindless repetition unworthy of the label, "tautology"? How about this one:

• The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.

I was reminded of that statement, made by Justice Roberts in opposition to the continuation of affirmative action, when Will Cain recited the line on Real Time as if it were a magic bullet solution to our nation's history of racial strife. (They way to stop talking heads from saying foolish things on television is to....)

Jim Lindgren provided a brief, albeit incorrect history of that assertion here, in a statement that I believe crystallizes the thinking of people like Roberts and Cain,

As general background on the history of the nondiscrimination ideal, the best place to start is Andrew Kull's prize-winning The Color-Blind Constitution (Harvard Press). Kull details the rejection of the color-blind version of the 14th Amendment in favor of what was viewed at the time as the weaker and less radical version that was adopted. And he details the rejection of color-blindness, just a few years after a consensus was finally reached in 1964 that American law was to be color-blind. His last main chapter describes the shift away from color-blindness toward what Justice Brennan called "benign racial sorting." In the course of that chapter he describes the idea that the special contribution of American law to reducing discrimination might be to embrace nondiscrimination.

There was nothing in the "less color-blind" version of the 14th Amendment that became the law of our land that compelled our nation to adopt legalized segregation, a doctrine of "separate but equal" that was anything but equal, anti-miscegenation laws, Jim Crow laws and the exclusion of minorities from certain jobs and educational opportunities based upon the color of their skin. There is nothing "color blind" in a body of law that explicitly divides the population based upon skin color and excludes one set of people from superior services available to the other. There is nothing "color blind" in declaring that formalized inequality to be permissible equality. You would have to be blind to history to not recognize "separate but equal" as a sham.

Lindgren is correct that the notion of the "color blind constitution" was rejected as we entered the civil rights era. What he fails to accurately describe is that the notion that the constitution should be "color blind" came in the wake of the civil rights movement, and that the argument was championed by people who had opposed the end of segregation. Why would advocates of segregation and Jim Crow call for a "color blind" constitution? Because they wanted to tie the government's hands in its implementation of remedies. It is that history that lives on in the remarks of Justice Roberts - not explicitly, but in the form of an echo. Roberts can reflexively issue a platitude, and the heirs to the Southern Strategy reflexively cheer, never mind the history.

Lindgren notes,

The idea that the best way to end discrimination is to stop discriminating was a common idea by at least the Reagan Administration.

And quotes Bill Bennett, then Secretary of Education,

What steps do you think should be taken to eradicate racial prejudice and discrimination? What steps should be taken, I guess, are the ones I laid out in my letter to the Equal Employment Opportunities Commission. That is, we should stop discriminating on the basis of race, sex, religion, and origin. Stop, stop, stop. That's where everybody wants to go. The best way to get there is to get there--that is, to stop. You do not eradicate an unfortunate legacy by perpetrating another unfortunate legacy.

You known, "Shucks, what an awful history, but it would be terrible to impose remedial measures." Case closed, we now return you to your original programming, "Welfare queens and young bucks who buy T-bone steaks with food stamps."

Admittedly, affirmative action has always worked better in theory than in practice. The name is born of the theory - the concept of the government taking affirmative action to end racism. But what action can the government take to even the playing field. To overcome generational disadvantage. The conceit of Justice Roberts is that the nation can be viewed as a single actor - and thus, that if the government becomes truly color blind, everybody will be truly color blind. Discrimination will end and we'll all wear Benneton and sing songs about Coca Cola.

But the world is not that simple, and the government was trying to act to prevent and correct a history of private discrimination through public measures. That's inevitably going to be unfair to some people, and is inevitably going to provide a benefit to some who don't need it while denying the same benefit to others who do. There are plenty of valid criticisms that can be made of affirmative action programs, both in terms of the big picture and in terms of the details. The issue being, and the Supreme Court historically recognizing, that sometimes a deeply flawed corrective measure is better than doing nothing. And certainly that you don't eliminate racism by pretending it no longer exists.

I've commented on this before, but one of the recurring themes over at the Volokh Conspiracy, the group blog where Lindgren posts, is that affirmative action is harful to minorities. That they would be more likely to excel at school, t graduate, to earn high incomes if they went to lesser schools better matched to their assumed academic talents. But they never present that same argument about legacy admissions, nor do they apply the same reasoning to kids who are at the margins of admissions standards and get bumped down to their second choice school based as a result of affirmative action. Why would a Harvard legacy be harmed if his school said, "You don't meet our academic standards?" Why would an applicant to any school be harmed if they received the "benefit" of being denied admission to a more difficult school for which they were barely qualfied, and instead ended up in a less academically rigorous setting where they would be closer to average? The reasoning should be the same, but obviously the politics are different.

Ending affirmative action won't end racial discrimination any more than its creation started discrimination. The way to stop discriminating on the basis of race is to come up with effective mechanisms that will stop people from discriminating on the basis of race, and then to implement those solutions. If you believe racism no longer exists, then great - the last step is to eliminate race-based corrective measures. But if you know better and care about ending racism, while it's fine to say "Affirmative action is deeply flawed and we can do better," you need to at least try to define the programs you would implement in its stead or attempt to explain why you see the cure as being as bad as or worse than the disease. If you don't care, however, Roberts' quote makes for a great sound bite, doesn't it.

"Trust Me - I'm Denying You This Great Opportunity For Your Own Good"

I stopped following George Will many years ago when, frankly, his columns became tiresome retreads, so I didn't even notice that Will had jumped onto the "Affirmative Action Harms Minorities" bandwagon until I read about his column at the Volokh Conspiracy, a site that has previously attempted to make the same argument; I have previously commented on similar arguments (c.f. Volokh Conspiracy comments on India's caste system). To me, the sentiment behind Will's columns often come across as a version of the proverbial cranky old man yelling, "Hey you kids, get off my lawn." His column on affirmative action seems to reflect that the wrong kids are allowed to place their unworthy feet on the lawns of elite universities.

Will starts by talking bout "academic mismatch", the notion that minority students end up in colleges that are too demanding for their meager little brains, and thus get worse grades or drop out, whereas had they gone to less challenging schools they would have flourished. I find the arguments of mismatch to be weak, first (as I indicated in the blog post I linked above) because to the extent that a mismatch exists it could easily be one of subject matter as opposed to aptitude. A lot of students go to law school because they believe it is the path to a well-paid career, not because they have received any advice about whether law school is a good academic match for their interests and aptitude, and many have little concept of what a lawyer does beyond depictions on TV, in movies and in novels.

But let's step back for a minute. Let's say that George Will is correct - that there would be no greater favor to a typical minority student than being bumped down into a less challenging school at which he will get better grades and ostensibly feel better about himself, and supposedly be launched on a more lucrative career path due to his presumed higher grades and higher likelihood of completion of the program. Why aren't top students, across the board, being told, "Set your sights a little bit lower - going to a less challenging college will help you in the long run"? Why are students who complain, "If minorities didn't benefit from affirmative action, I would be in a better school," grateful for their higher GPA's and expanded economic horizons? Why are graduates of elite institutions obsessed with preserving preferential admission for legacies, rather than encouraging their kids to attend schools better matched to their talents? Why aren't those making this argument also arguing that college sports scholarship should never be given to students who would not qualify for regular admission to the same school?

Enrollment in college is in no small part about branding. If you have an Ivy League college attached to your résumé, it opens doors that might otherwise remain closed. Many people (like Will) assume by the name of a college or its ranking that the curriculum must be more challenging, but that's often not the case. Even within a college, some degree programs are much easier than others, but having the . No matter how brilliant you are, if you want to be on the Supreme Court, you had best attend Harvard or Yale. The impact of branding is most pronounced with elite schools, but carries on down the line through less elite and regional schools.

Do those who sneer that President Obama is secretly dumb, a beneficiary of affirmative action, believe that he would be doing even better had he not attended Harvard Law? ("If only he had been allowed to excel at a mid-tier law school, he might be President of the Universe.") By the same token, do they contend that G.W. Bush, whose admissions to Harvard and Yale had nothing to do with academic preparedness or performance, did not benefit from that branding?

Since we're talking about the Supreme Court here, and the type of information it should use as a basis for its opinions, it seems reasonable to look at other cases. Here, for example, is a criticism of the substitution of sociology for law in Brown vs. Board of Education:

The court waxed sociological, citing such data as the preference of some black children for white dolls, which may have been related to school segregation. And the court cited studies - studies more problematic than the court assumed - concerning the effects of segregation on children's abilities to learn. By resting the ruling on theories of early childhood development, the court's rationale limited the anti-discrimination principle of the ruling to primary and secondary education.

As Robert Bork has written, making the ruling contingent on sociological findings "cheapened a great moment in constitutional law."The proper, more radical rational for the Brown outcome was simply that government should not use racial classifications in making decisions.

As you've guessed, that argument was made by George Will who, although claiming that the court reached the "correct constitutional outcome" laments that the ruling allowed for more than judicially enforced equality of access, and opened the door for direct efforts (i.e., "affirmative action") to end segregation and discrimination. Let's work with the premise that constitutional cases should be decided based upon the law and constitution, and that social science should be held at arm's length (or further). That was then, this is now?

The details of the Texas policies are less important than what social science says about the likely consequences of such policies.

Apparently, when it comes to ending affirmative action, we have a moral imperative to employ weak social science to cheapen a great moment in constitutional law.

Consider, for example, the touchy-feely arguments of the Heriot/Kirsanow/Gaziano brief,

These so-called affirmative action beneficiaries are not bad students. Many would be honor students elsewhere. But they are subtly being made to feel as if they are less talented than they really are. Many may actually be learning less. Everyone knows that a good student can get in over his head if placed in a classroom with more academically prepared students. (The Commissioner Amici, who are all lawyers, have little doubt, for example, that they would learn less in a physics class at Cal Tech, which specializes in training the best-prepared science students, than they would at a university with less formidable competition.)

It has often been argued that the social science research referenced in Brown was incomplete and misleading; but the first argument of the brief Will relies upon is nothing but speculation and projection. The brief's third and fourth arguments are framed as speculation - judgment based on appearances - "Race-Preferential Admissions Appear to Have the Effect of Discouraging Minority Students from Becoming College Professors" and "Race-Preferential Admissions Appear to Have the Effect of Decreasing the Number of Minority Law Students Who Graduate and Pass the Bar." I was not aware that the nation was facing either a shortage of people qualified to teach college courses and, unless the authors are concerned about a lack of racial diversity among college professors, I'm not sure what they are concerned about. Certainly not pay, given what a typical college professor earns.

The fifth argument, which attempts to argue that graduating from better colleges does not boost lifetime income, goes right back to speculation:

One cannot assume that a student with a combined SAT score of 1200 at Princeton is the equivalent of a student with the same score at Pennsylvania State. There is an excellent chance that the first student has a substantially better high school GPA or other distinctions in his favor. That is why he is at Princeton, not Pennsylvania State.

So he's not there because of affirmative action - he's there because he's better qualified? Gotta love the internal consistency....

Comparing students with the same SAT scores and finding that the student at the more elite school has higher post-graduation earnings, even though he appears to be mismatched at the more elite school, is a false comparison. It is overwhelmingly likely that the student attending the more elite school has a more elite high school record too.

So again, the students at the more elite school do benefit from their enrollment at those institutions, and should be assumed to be academically qualified for those programs, unless we're not comparing them to students in other colleges or talking about law school students, in which case they're going to struggle and fail due to affirmative action. Why am I still not quite convinced.

The only question is whether a black student who attends a Tier-1 school and winds up in the bottom third of the class would have likely been in the top third of a Tier-3 school. And the answer to that question, at least in many cases, is yes.

But if the assumption holds, the same is true of any student. By definition there will always be a "bottom third of the class" at any given university. Why is it okay when they're attending as legacies or on sports scholarships, or just happen to perform at a level below the majority of their peers, but a horror if their skin is of a certain shade? Also, if we are to rely upon the assumption that students who attend more elite schools and study subjects such as law or business would be studying engineering or the physical sciences but for their admission into the elite schools, we could be creating the academic mismatch the authors purport that they want to avoid. My stepfather holds a Ph.D. in physics, became a CMA (equivalent of a CPA) in his spare time, has taught college-level physics and calculus, has read the entire Scientific American library cover-to-cover for relaxation, and he has expressed that he "couldn't do" my work as a lawyer. He could - but what he means is that he would find it to be a mismatch with his aptitude and interests, as would I had I chosen to pursue a Ph.D. in physics instead of a law degree.

The brief's second argument is premised upon social science data, speculating that affirmative action caused minority students to select fields of study other than the natural sciences and engineering. (Yes, it appears that the three lawyers who authored the brief, and who apparently weren't sufficiently inspired by science to take even an basic physics course in college, and George "Don't know much about science book" Will, find this to be a genuine problem. So how's this for a kick in the seat of their collective pants - they haven't even impressed Steve Sailer.

Say I'm a black high school student with a 700 SAT math score and my options are:

1) Without affirmative action, go to Purdue and become an engineer.

2) With affirmative action, go to Penn, major in economics or finance, maybe get an MBA, and go into corporate management

Why would I choose what's behind door #1? My dad was an engineer. A friend of his designed the fastest airplane of all time. But, he was never that kind of genius, so he spent 40 years worrying about whether or not the wings were going to snap off the planes designed by the geniuses.

There are a lot of worse jobs than engineer, but there are better jobs, too.

It apparently has not occurred to the lawyers who authored the report that there actually are students other than themselves who view such "soft" subjects as law as a superior career choices to engineering or chemistry or becoming a professor.

The other brief relied upon by Will is similarly explicit in its reliance upon social science. The authors summarize their argument as follows:

Many of the issues involved in judicial oversight of racial affirmative action in university admissions turn on empirical questions that can be better understood through social science research. This brief identifies important findings in recent research that suggest that the Court’s decision in Grutter, and indeed affirmative action practices in general, are not having their intended effects.

The authors also speculate that admissions based upon SES would enhance diversity more efficiently than race-based affirmative action, but they fail to explain why they believe that to be the case; if they're taking the position that universities should attempt to enroll a diverse student body, they should make their case that socioeconomic diversity would result in "more intellectual and viewpoint 'diversity'", even as the student body becomes more racially homogeneous. So again we're being told, "Ignore the facts, ignore the law, and decide the case based upon our interpretation of social science." An approach we're told is bad and illegitimate if it means creating or expanding affirmative action programs, but superior to consideration of the facts or law if it can be used to argue against them.

The social science arguments advanced by Will not only seem speculative, they seem constrained by a tunnel vision - take tidbits of social science research, speculate about how it might harm minorities, and close the book. There's more to the picture than speculation about the career paths of college students who attend less renowned institutions, and the speculation that they might become scientists and engineers, or projections of lifetime earnings. College educated students are more likely to obtain and hold white collar jobs, socialize with educated peers, and have kids who go to college. In my experience that's true even if they are poor.

It would be interesting to learn how the numbers hold when you look at African American women, rather than African Americans in general. Given that women have a significantly higher college completion rate than men, I expect that the outcome analysis would be quite different. It would also be interesting to hear it explained why some colleges claim that their African American students fare as well as any other group if the problem truly is somehow connected to the color of one's skin. Interestingly,

African-American students in engineering and the hard sciences have lower retention and graduation rates than those in the social sciences and arts, but this is true for all ethnic groups.

So maybe there's not much to that notion of keeping African American students out of elite schools so they can become scientists and engineers, after all....

I wrote back in 2006,

Affirmative action, at least as presently defined, has to end sometime - that is, at some point you have to recognize that it has passed its point of effectiveness or, if it is effective, that it is no longer necessary. I personally believe that many (perhaps most) affirmative action programs are deeply flawed as administered. Funny, though, I can't recall the last time I saw an opponent of affirmative action make a cogent case against the need for affirmative action, or even the manner of its administration. I can't recall the last time I heard an opponent argue for reform and improvement as opposed to abolition. To the extent that a plausible case can be made that affirmative action is no longer helping to achieve progress for targeted groups, I don't recall hearing that argued, either.

The only thing that has changed since that time is that George Will and friends are arguing that some minority students are harmed by affirmative action. I can't help but feel that they state their case badly, but I guess it's all they have.

Pat Buchanan, Concern Troll

Pat Buchanan plays the "racial politics" game, accusing President Obama of "abandon[ing] blacks". How does Obama do that, you ask? By getting behind an immigration reform that Pat Buchanan opposes, and by not making appointments that Pat Buchanan would decry as "affirmative action" - that is, "discrimination against white folks — with affirmative action, contract set-asides and quotas — to advance black applicants over white applicants".

With friends like Pat....

White Anxiety - Everything Old is New Again?

Ross Douthat's concern about "white anxiety" has been thoroughly addressed by others, both for its analytical and factual errors. But there are a couple of aspects to the editorial I have not yet seen addressed.

But first, an andecdote. When I was in law school - a law school at which, strangely enough, law students did discuss controversial issues - one of my classmates lamented, "If it weren't for affirmative action I would be at a better school." Another classmate shot back, "You're at the University of Michigan Law School. Exactly how much better can you do?"

One of the themes of people sympathetic to Douthat's apparent position that affirmative action programs are unfair to white students is that it's in many ways a favor to minorities to keep them out of top law school programs. If they go to less elite schools, it is argued, they will do better, be more likely to graduate, have better job prospects, and incur less debt. Should I be puzzled that I never hear those arguments raised by people who speak of "white anxiety" and the unfairness of affirmative action to white students? Programs that favor alumni over better qualified students? Again, it seems that there's no mention unless it's horror at the idea of their ending.

So, which is it? Is it a favor to keep incoming students in schools and programs that aren't above their on-paper GPA's and test scores? Or is it a horror that will lead to race resentment? Surely I'm not to accept that it's the former when we're speaking of minorities and the latter when we're speaking of white students. Further, as the anecdote above illustrates, if you're talking about somebody who is qualified for a top school they're likely to get into a top school, even if one of those schools utilizes non-academic criteria to favor the child of an alumnus, or racial or geographic diversity.

Also, Douthat notes,

In March of 2000, Pat Buchanan came to speak at Harvard University’s Institute of Politics. Harvard being Harvard, the audience hissed and sneered and made wisecracks. Buchanan being Buchanan, he gave as good as he got. While the assembled Ivy Leaguers accused him of homophobia and racism and anti-Semitism, he accused Harvard — and by extension, the entire American elite — of discriminating against white Christians.

Buchanan's been playing the "white anxiety" card for as long as I can remember. So why is it that when Buchanan writes about the issue today, he writes as if it's a new, post-election issue that's somehow attributable to President Obama, and not an issue he's been hammering since his time in the Nixon White House?

And why, if the issue is to shed light as opposed to heat, are we focusing on a situation that is alien to most Americans - getting into, say, Harvard or Yale - as opposed to something within their own probable experience?

Silver Spoons, Together....

Glenn Greenwald on our meritocracy, with G.W.'s daughter Jenna being hired on as a "Today" correspondent:

They should convene a panel for the next Meet the Press with Jenna Bush Hager, Luke Russert, Liz Cheney, Megan McCain and Jonah Goldberg, and they should have Chris Wallace moderate it. They can all bash affirmative action and talk about how vitally important it is that the U.S. remain a Great Meritocracy because it's really unfair for anything other than merit to determine position and employment. They can interview Lisa Murkowski, Evan Bayh, Jeb Bush, Bob Casey, Mark Pryor, Jay Rockefeller, Dan Lipinksi, and Harold Ford, Jr. about personal responsibility and the virtues of self-sufficiency. Bill Kristol, Tucker Carlson and John Podhoretz can provide moving commentary on how America is so special because all that matters is merit, not who you know or where you come from. There's a virtually endless list of politically well-placed guests equally qualified to talk on such matters.

If you're looking for that list, at least in terms of political legacies and dynasties, here's a good start.

If The Republican Party Wants to Become the Party of Whiny Victims....

...I think they've picked the wrong poster child. I mean, it may be fun to feign outrage because a white man didn't get a promotion, five years ago. Ricci's service as the named plaintiff in a lawsuit over that incident indicates that he's fully prepared to accept compensation if the Supreme Court ultimately decides his case has legal merit, but he's clearly moved on with his life, taken other opportunities, made other opportunities for himself. That's the part to commend and celebrate. Nonetheless, people like Pat Buchanan see him principally as a victim, and more than that want to celebrate him as a victim for political purposes.

Better To Keep Your Mouth Shut And....

David Bernstein blesses us with words of wisdom on affirmative action and India's caste system. Referencing a news story in which the Gujjars (a farming caste) protested that they should receive the same type of set-asides and proferences as the dalits (a/k/a the "untouchables"), Bernstein comments,

Affirmative action has its good points and bad points, but I think it's undeniable that when government distributes benefits based on particular characteristics, lots of people will want to be identified as having those characteristics, there will be lobbying to ensure that the relevant characteristics become legally immutable at a minimum ,or broadened, and people will organize and lobby around their common claim to the relevant characteristic. This all makes it a lot less likely that the relevant societal distinctions that led to the need for the affirmative action policies to begin with will wither away.

It is difficult to imagine a more obtuse statement about India's caste system. If "doing nothing" were going to to a whit of good for the lower castes, you would think that after this many centuries we wouldn't still be reading this:

Human rights abuses against these people, known as Dalits, are legion. A random sampling of headlines in mainstream Indian newspapers tells their story: "Dalit boy beaten to death for plucking flowers"; "Dalit tortured by cops for three days"; "Dalit 'witch' paraded naked in Bihar"; "Dalit killed in lock-up at Kurnool"; "7 Dalits burnt alive in caste clash"; "5 Dalits lynched in Haryana"; "Dalit woman gang-raped, paraded naked"; "Police egged on mob to lynch Dalits"....

India's Untouchables are relegated to the lowest jobs, and live in constant fear of being publicly humiliated, paraded naked, beaten, and raped with impunity by upper-caste Hindus seeking to keep them in their place. Merely walking through an upper-caste neighborhood is a life-threatening offense.

Nearly 90 percent of all the poor Indians and 95 percent of all the illiterate Indians are Dalits, according to figures presented at the International Dalit Conference that took place May 16 to 18 in Vancouver, Canada.

And so it goes. Bernstein's answer to this is to do nothing, because the caste system will magically vanish on its own if nothing is done for a few more... centuries?

Really, though, we shouldn't expect that his argument would be sensible within its contrived context. Bernstein's not writing about India. He's writing about the United States. He elaborates,

Query: If the Irish, Scandinavians, and Italians in the United States--all groups that were once suffered a great deal of discrimination and were relatively disadvantaged compared to the Anglo-Saxon/German majority (plurality?)--had been offered government benefits based on their ancestry one hundred years ago, would these groups be as integrated into American life as they are today? If not, then this is a cost to such policies that must be weighed against the benefits.

The obvious inference is that we are to compare the experience of Irish, Scandinavians and Italians over the past century to other groups of Americans who have been beneficiaries of affirmative action.

Now, Bernstein did not have to say "Anglo-Saxon/German majority" - he could have said "white" or "European". That would diminish his argument, as once various "disadvantaged" European groups shed their ethnic garb, learn the language and lose their accents, they blend in pretty well with other Americans of European extraction. But note that the most obvious implicit "other" group - beneficiaries of affirmative action whose name Bernstein apparently dares not speak - are "African Americans". If we're going to speak of Africa as a unit, it seems reasonable to speak of Europe as a unit. This would change the argument to, "Europeans assimilate with other Europeans without affirmative action, so what's different about Africans?" I'll assume at this juncture that Professor Bernstein is a proponent of the "color-blind Constitution".

Taking A Moment To Be A Bit Unfair....

Professor Bernstein, who spent a year collecting a paycheck from the University of Michigan Law School, bleats about UM's reaction to the Michigan proposal banning affirmative action:

President Coleman, in the midst of lengthy remarks expressing her dedication to "diversity," added, "Of course the University of Michigan will comply with the laws of the state." Her devotion to a cause she believes just is admirable, but I think it would have been appropriate for her to recognize, even if briefly, that out of a student body of 40,000, and an alumni body of hundred thousands, there are many thousands of people of good will who disagree. The actual remarks, however, suggest that the only good member of the Michigan community is someone who supports "diversity" policies.

It does? Well, it's pretty clear that Prof. Bernstein isn't in favor of "diversity" policies, but he's not really part of the Michigan community.

I'm assuming that he didn't have access to UM Law's admissions records, but still I have to ask: Was his experience with UM Law's minority students really so bad? (And where can I read him lament that his children will have an advantage getting into Yale, as the children of an alumnus?)

Affirmative action, at least as presently defined, has to end sometime - that is, at some point you have to recognize that it has passed its point of effectiveness or, if it is effective, that it is no longer necessary. I personally believe that many (perhaps most) affirmative action programs are deeply flawed as administered. Funny, though, I can't recall the last time I saw an opponent of affirmative action make a cogent case against the need for affirmative action, or even the manner of its administration. I can't recall the last time I heard an opponent argue for reform and improvement as opposed to abolition. To the extent that a plausible case can be made that affirmative action is no longer helping to achieve progress for targeted groups, I don't recall hearing that argued, either.

Affirmative Action in Law Schools

Today, while browsing How Appealing, I was reminded of two things: Why I stopped reading "townhall.com", and of the persistent debate over whether "affirmative action" programs in universities do minority students a disservice - the usual argument is that they place students in institutions above their intellectual ability, and thus cause lower performance and higher attrition rates. The former issue is the easier to address - I got tired of the fact that you usually didn't have to read past the headline to know what a TownHall.com piece would argue, and that if by then you could not already predict the tired, overused arguments that would be applied to reach the editorial's conclusion, all you had to do was look at the name of the author.

Today's editorial was a bit of a surprise - the headline, "Does affirmative action produce more black lawyers?", certainly presages the anticipated townhall.com answer of "No!". But it didn't telegraph that the author of the piece would then digress into an irrelevant narrative about creating an alternative system to the nation's public schools. (The surprise was, obviously, less the nature of the argument than the fact that it would be used to pad out this particular piece.)

The editorial, in classic townhall.com style, is internally inconsistent. It references a law review article, "A Systemic Analysis of Affirmative Action in American Law Schools" [PDF Format, 1.2 Megabytes], by Richard H. Sander, a law professor who we are first told is " a long-time liberal and advocate of race-conscious public policy", and are next told is "cannot be painted with any ideological brush". Um... okay. In any event, a brief summary of the law review article is provided by the author. The arguments he presents are not new, save perhaps in their appliction to law schools instead of undergraduate institutions.

The author's first suggestion is that affirmative action programs for African American students at the nation's law schools are so pronounced that they are effectively parallel systems of admission - or, as he puts it, they "are generally hard to distinguish from racially segregated admissions". The author then suggest that because African American students come into law school with such inferior preparation, they underperform during their first year.

Accepting these assertions as true, isn't the reasoning rather circular - to criticize affirmative action programs which are meant to close an achievement gap on the basis of an achievement gap? If the argument is that the affirmative action programs don't offer anything to the students themselves, and do nothing to advance their later lot in life, that's material. But we already know about the achievement gap, and one wouldn't expect it to magically disappear merely because a student is accepted into a law school.

It would be interesting, of course, to see how the African American students perform during their second and third years of law school - the article suggests an overall slight decline in average class ranking. (My personal performance following first year went up - in no small part because I learned to game the system. Read the professor to anticipate what will be on the exam; write an exam that accords with the professor's politics; assume that a professor who assures a class "I don't take politics into consideration while grading" is either lying to the class or lying to himself, etc. I think the biggest advantage some of the kids from "elite" undergraduate institutions had, on their way into the law school, is that they were already expert at gaming the system.) The author presents a number of theories as to why this might be the case, settling primarily on "academic mismatch". But the author's arguments (including his personal example of almost failing an undergraduate course in German, finding himself with little aptitude for that language) do not necessarily support his thesis. That is, the mismatch may not be between the student and the institution, but (as in his case) between the student and the subject. It may be that some of the "mismatched" students might have been better served by being directed to business school, for example, by their undergraduate academic advisors, instead of law school. Presumably the author is not disputing that he, personally, was academically qualified to go to Harvard and to enroll in the German course he almost failed - so why is he so willing to attribute "mismatch" to academic inadequacy as opposed to the subject matter when it comes to African American students?

The next argument makes no sense to me - it is that "these low grades substantially handicap black students in their efforts to complete law school and pass the bar". Perhaps it is because when I was at law school I didn't see many students drop out of the program, and the only two I can recall from my first year class were not African American. One hated law school; the other got a job offer within his prior profession that was "too good to refuse". The lowest performing student I can recall from first year, also, was not African American - and she ultimately did pass the bar and found employment in a law firm. Now granted, my law school might have been exceptional in this regard, but I doubt it - I would venture that other elite law schools had similarly high pass rates for their students, including minority students. The author's statistics suggest that relatively few African American students drop out of elite schools, with a growing dropout rate as you move down through lesser-rated tiers of schools.

That seems rather inconsistent with the author's notion that attrition rates would drop if affirmative action were eliminated - in fact the author concedes that at elite institution the lower attrition rates offset the effect of lower grades. And while the author suggests that first year grades are a more important factor than law school ranking, it is not clear to me that the author's analysis properly takes into consideration the relatively low numbers of elite institutions - that is, the overall extrapolation seems to overrepresent middle and lower tier schools, which is where he expects the students from the elite schools to end up.

In terms of how this would affect bar passage rates, the author asserts, "Only 45% of black law students in the 1991 cohort completed law school and passed the bar on their first attempt; in the absence of preferential admissions, I estimate that this rate would rise to 74%." That conflates the two issues - graduating from law school and passing the bar - when in my opinion those issues should be treated separately. After all, everybody who takes the bar in a particular state at a particular time takes exactly the same test.

Most students take "bar review" courses to prepare themselves for those tests, their first year of law school (where many of the key subjects for the bar exam are covered) being an increasingly remote memory, and coverage of state law issues (particularly in elite schools) pretty much absent from the curriculum. Granted, it is suggested that some lower tier law schools amount to little more than a three year bar review course, but presumably the author isn't assuming that the typical African American student declined admission by Yale would end up at such a school - he suugests that on an even playing field, the student declined by Yale might end up at Cornell, the student denied by Cornell might end up at Cardozo, and the student denied by Cardozo might end up at Syracuse. The author accepts that this would result in a marked diminishment of African American enrollment at the nation's top 40 law schools. On a personal note, after I left law school, my school raised its first year curve - such that students had higher GPA's. Despite the author's thesis, I am not aware that this had any effect on either attrition or bar passage rates.

This "trickle down" (the author prefers "cascade effect") in the admissions process is presumed to result in a better match between student and law school, and higher graduation rates - but even accepting that assumption it still isn't apparent how that would affect bar passage. The author presents statistics showing a strong correlation between law school GPA and bar passage rates, but as with the prior extrapolation this overall effect would seemingly be distorted by the number of students from middle- and lower-tier schools, as compared to the relative few from elite institutions.

The author also suggests that the effect of higher grades at a lesser institution would result in higher income than lower grades at an elite school. This, again, assumes a mismatch between student and school as opposed to between student and subject matter. I don't think, for example, that the author would have fared particularly well in a German class even at a mediocre college. It also presupposes that post-law school income is the best measure of success - something that may surprise those of us who took alternative paths in our legal careers. I know a lot of lawyers who have found greater satisfaction in smaller firms, public service, or other lower paid careers - even as law professors. Failures by the author's standards?

Even with respect to the "money effect" the author is very tentative in his assertions - "It is clear enough that law school grades are quite important, perhaps more important than law school prestige in determining who gets what jobs." On a personal note, I had a couple of interviews during law school where the identity of my undergraduate institution was enough to put me out of the running - whatever one makes of the author's overall projections, I don't think they would hold for the NLJ 250 - I think that you would find that the top law firms recruit almost exclusively from elite law schools, and want "brand name" undergraduate institutions. Eliminating African American students from the top tier would seemingly have a profound impact on their presence in top tier firms.

The "money" analysis also excludes the possibility that racism plays a role in the relative income earned by African American law school graduates. While the racial environment at law firms has certainly improved, and while some reading this might disagree, I think that assumption is quite naive.

The author extrapolates from his findings to suggest that, given a level playing field, "86% of blacks currently enrolled in law schools would have been admitted to some law school under race-blind policies, and the much lower attrition rates that would prevail in a race-blind regime would probably produce larger cohorts of black lawyers than the current system of preferences produces." For the reasonas outlined above I personally believe that, despite the author's attempts to back up his position with statistics, this thesis relies too heavily upon assumption. (Giving due credit to the author, toward the end of his piece the author acknowledges that there are significant defects in his data, and that his analysis relies heavily upon assumption - he just happens to believe those assumptions to be sound, whereas I am skeptical.)

I am left with one lingering question about the piece, and would appreciate any thoughts you might have. The piece is titled, "A Systemic Analysis of Affirmative Action in American Law Schools", yet it addresses only African American law school students as compared to Caucasian law school students. Given that several other minority groups are significant beneficiaries of typical law school affirmative action programs, how is that a "systematic analysis of affirmative action"?

Affirmative Action For Stupid Rich Kids

The Times brings us a moment in Yale history from the turbulent 60's, when legacy enrollment of the incoming freshman class was slightly reduced - to 12%:

The reaction of the alumni was swift and furious. By the end of 1966, the alumni were in open revolt, and Yale's alumni board hastily formed a special committee to investigate the matter. In 1967, William F. Buckley, an alumnus then running an insurgent campaign for a seat on the Yale Corporation, declared that Yale had ceased to be the "kind of place where your family goes for generations" and had been transformed into an institution where "the son of an alumnus, who goes to a private preparatory school, now has less chance of getting in than some boy from P.S. 109 somewhere."

The alumni backlash was apparently enough to scare Harvard and Princeton away from trying a similar experiment - and the author notes, "Recently, both Harvard and Princeton have admitted legacy applicants at a rate more than triple that of non-legacy applicants.".

Moving Past "Affirmative Action"

In "The Continuing Struggle for Equality", Armstrong Williams notes some of the central issues facing African Americans in today's society. He concludes,

We don't need more entitlement programs that dispense money to the underprivileged like some government-subsidized tranquilizer. We need to confront the real problems threatening our communities. We will achieve Dr. King's dream not with quotas and affirmative action, but with the determination to face those social conditions that truly underlie inequality - eroding family life, disintegration of moral character and the devaluation of human life.

With all due respect for the failures of affirmative action and entitlement programs to resolve poverty and discrimination, and for the frustration inspired by the perpetuation of poverty and discrimination, I still think it would benefit us if we were told something more than "We need to throw out every tool in our toolbox, and find something new" - such as, "And here's something that might work...."

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