Deep secrets of affirmative action debated

Preparing to speak at the Federalist Society National Lawyers Convention this past fall, I read the astounding book Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It by Richard H. Sander and Stuart Taylor, Jr. The book came out to wide acclaim in October 2012. Amazon does not indicate that a paperback edition is forthcoming. You might want to pick up a copy of the book before it becomes a collector’s item.

Sander is a professor of law at UCLA. In the preface to the book Sander (Sander and Taylor contribute individual prefaces to the book) refers to “the culture of secrecy and double-talk” with which the subject of the book is enshrouded in academia.

Sander describes himself as a former community organizer. He became interested in the subject of affirmative action in law schools when he joined the UCLA Law School faculty.

Sander himself wrote chapters 4 and 5 of the book. Chapter 4 discusses Sander’s research on the effects of “affirmative action” (racial preferences) in law schools. Sander’s pioneering account of this research was originally published in the 2005 Stanford Law Review as “A systemic analysis of affirmative action in American law schools.” He followed up with “A reply to critics” of his law review article. The upshot of Professor Sander’s research is that affirmative action has perverse effects on the bar passage rates of its law school beneficiaries. Having read the book, I can say that he makes a powerful case.

Chapter 5 of the book is Sander’s account of the extraordinary lengths to which supporters of law school “affirmative action” went to suppress the publication of his law review article. It is worth the price of admission to the book.

Why would the supporters of “affirmative action” seek to suppress the publication of Sander’s law review article? The real-world results of affirmative belie the related ideology of those who foist it on us. The regime of affirmative action is accordingly enforced through secrecy, silence and political correctness.

Gail Heriot is professor of law at the University of San Diego School of Law and a commissioner on the United States Commission on Civil Rights. She was cochair of California’s successful referendum campaign supporting the passage of the California civil rights initiative outlawing racial preferences in public education. Professor Heriot publicized Sander’s findings in the National Affairs article “The sad irony of affirmative action.”

Professors Sander and Heriot teamed up to debate the proposition that affirmative action on campus does more harm than good. Harvard Law School Professor Randall Kennedy and Columbia Law Professor Ted Shaw, a long-time attorney with the NAACP Legal Defense Fund, were paired against them. The debate was held at Harvard under the auspices of Intelligence Squared. John Donvan did an excellent job moderating the debate.

The 90-minute video of the debate is below. Professor Sander speaks for seven minutes at about 22:30. Professor Kennedy takes a question with a must-see answer on the harm to Asian American students under the affirmative action regime at around 1:07.00. If you don’t watch anything else but have some interest in the issues, please check out these items, although the whole thing is worth your time.

John Fund brought the debate to my attention in his excellent NRO column “Affirmative action under siege.” John writes about the debate as follows:

The intellectual case for preferences is looking increasingly shaky. Last month, a packed auditorium at Harvard Law School featured an Intelligence Squared U.S. debate on whether “affirmative action does more harm than good.” Harvard professor Randall Kennedy, the author of the book For Discrimination, and Columbia professor Ted Shaw, the former head of the NAACP Legal Defense Fund, argued that diversity is an important and noble goal that universities must pursue. UCLA professor Richard Sander, author of the book Mismatch, and University of San Diego professor Gail Heriot, a commissioner on the U.S. Civil Rights Commission, presented statistics from over 20 peer-reviewed studies that showed how the good intentions of affirmative-action supporters have had disastrous results.

The research cited by Sander and Heriot shows that universities routinely put a race-conscious fist on the admissions scale, rather than a thumb. These heavy preferences mean that the median African-American student at law school has credentials lower than those of 99 percent of the Asian and white students — and underrepresented minorities admitted to law school based on a heavy preference are two to three times more likely to fail the bar exam.

Going to any school to which a student is admitted because of race, rather than to a school better matched to the student’s aptitude, isn’t helpful. For example, affirmative-action students are 50 to 75 percent more likely to drop out of a science program than are regular admits. But students who attend a school where their entering credentials are similar to those of their fellow students are more likely to follow through with an ambition to major in science or engineering, more likely to decide to become a college professor, and more likely to finish law school and pass the bar. We almost certainly now have fewer minority doctors, lawyers, and business chiefs than we would have had under race-neutral admissions policies.

Professors Kennedy and Shaw didn’t challenge the empirical studies on mismatch, and Kennedy even stipulated [i.e., was "willing to stipulate"] that they were true. But he said the quest for diversity is important enough to justify affirmative action: “Why would we not allow people the opportunity to advance themselves if they so desire, and if these institutions believe that it is in their interest — their institutional interest — to invite these students to come?”

But Sander and Heriot pointed out that universities go to great lengths not to give students an informed choice, actively concealing the failure rate of students who enter with lower grades and test scores. Both said they would embrace a compromise to avoid the trench warfare of political battle over the issue and would drop all objections to affirmative action if universities gave every student the career-goal success rate of prior students with their credentials at that school. Sander said the pretense universities perpetuate, that everyone they admit has the same chance of success, is “manifestly untrue.” Heriot noted that after the U.S. Commission on Civil Rights issued a report highlighting the “mismatch” problem, “there was a sad silence from the schools, no transparency, and no task forces examining the damage to minorities.”

John summarized the outcome of the debate:

Given the overwhelming liberal ethos of Harvard’s campus, the impact of the debate on the audience was surprising. Audience members voted by keypad before and after the debate. Among those expressing a position, opposition to affirmative action rose by nearly a third — from 31 percent before the debate to 40 percent afterward. Support dropped from 69 percent before the debate to 60 percent afterward.

There is a reason why the powers-that-be keep the data documenting the impact of affirmative action in higher education under wraps. This debate is a public service.

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