Affirmative Action: Two Views from the Academy

First comes Michael Bérubé, a professional academic who is evidently bereft of experience in the real world. His qualifications for writing about affirmative action? He teaches undergraduate courses in American and African-American literature, and graduate courses in literature and cultural studies. He is also co-director of the Disability Studies Program, housed in the Rock Ethics Institute at Penn State.

Writing from the ivory tower for the like-minded readers of The Nation (“And Justice for All“), Bérubé waxes enthusiastic about the benefits of affirmative action, which — to his mind — “is a matter of distributive justice.” Bérubé, in other words, subscribes to “the doctrine that a decision is just or right if all parties receive what they need or deserve.” Who should decide what we need or deserve? Why, unqualified academics like Bérubé, of course. Fie on economic freedom! Fie on academic excellence! If Bérubé and his ilk think that a certain class of people deserve special treatment, regardless of their qualifications as workers or students, far be it from the mere consumers of the goods and services of those present and future workers to object. Let consumers eat inferior cake.

Bérubé opines that “advocates of affirmative action have three arguments at their disposal.” One of those arguments is that

diversity in the classroom or the workplace is not only a positive good in itself but conducive to greater social goods (a more capable global workforce and a more cosmopolitan environment in which people engage with others of different backgrounds and beliefs).

Perhaps Bérubé knows the meaning of “capable global workforce.” If he does, he might have shared it with his readers. As for a workplace that offers a “cosmopolitan environment” and engagement “with others of different backgrounds and beliefs” I say: where’s the beef? As a consumer, I want value for my money. What in the hell does diversity — as defined by Bérubé — have to do with delivering value? Perhaps that’s one reason U.S. jobs are outsourced. (I have nothing against that, but it shouldn’t happen because of inefficiency brought about by affirmative action.) Those who seek a cosmopolitan environment and engagement with others of different backgrounds and beliefs can have all of it they want — on their own time — just by hanging out in the right (or wrong) places.

Alhough Bérubé seems blind to the economic cost of affirmative action, he is willing to admit that the practice has some shortcomings:

Affirmative action in college admissions has been problematic, sometimes rewarding well-to-do immigrants over poor African-American applicants–except that all the other alternatives, like offering admission to the top 10 or 20 percent of high school graduates in a state, seem to be even worse, admitting badly underprepared kids from the top tiers of impoverished urban and rural schools while keeping out talented students who don’t make their school’s talented tenth. In the workplace, affirmative action has been checkered by fraud and confounded by the indeterminacy of racial identities–and yet it’s so popular as to constitute business as usual for American big business, as evidenced by the sixty-eight Fortune 500 corporations, twenty-nine former high-ranking military leaders and twenty-eight broadcast media companies and organizations that filed amicus briefs in support of the University of Michigan’s affirmative action programs in the recent Supreme Court cases of Gratz v. Bollinger and Grutter v. Bollinger (2003).

Stop right there, professor. Affirmative action is “popular” because it’s the law and it’s also a politically correct position that boards of directors, senior corporate managers, and government officials, and military leaders can take at no obvious cost to themselves. Further, those so-called leaders are sheltered from the adverse consequences of affirmative action on the profitability and effectiveness of their institutions by imperfect competition in the private sector and bureaucratic imperatives in the government sector.

As I wrote in “Race, Intelligence, and Affirmative Action,” here’s how affirmative action really operates in the workplace:

If a black person seems to have something like the minimum qualifications for a job, and if the black person’s work record and interviews aren’t off-putting, the black person is likely to be hired or promoted ahead of equally or better-qualified whites. Why?

  • Pressure from government affirmative-action offices, which focus on percentages of minorities hired and promoted, not on the qualifications of applicants for hiring and promotion.
  • The ability of those affirmative-action offices to put government agencies and private employers through the pain and expense of extensive audits, backed by the threat of adverse reports to higher ups (in the case of government agencies) and fines and the loss of contracts (in the case of private employers).
  • The ever-present threat of complaints to the EEOC (or its local counterpart) by rejected minority candidates for hiring and promotion. Those complaints can then be followed by costly litigation, settlements, and court judgments.
  • Boards of directors and senior managers who (a) fear the adverse publicity that can accompany employment-related litigation and (b) push for special treatment of minorities because they think it’s “the right thing to do.”
  • Managers down the line learn to go along and practice just enough reverse discrimination to keep affirmative-action offices and upper management happy.

As if in answer to Bérubé’s reflexive defense of affirmative action, now comes Richard Sander, another academic, but one who actually looks at the numbers. Sander, a professor of law at UCLA who has published “A Systematic Analysis of Affirmative Action in American Law Schools,” is without a doubt a liberal of the modern persuasion and a proponent of diversity. He is nevertheless critical of affirmative action as it is practiced at law schools. Here’s the gist of his analysis, as reported at FindLaw:

The Heavy Weight Placed on Race in Admissions in Virtually All Schools – the Cascade Effect
Professor Sander lays the foundation for his critique by describing the kind of race-based affirmative action that law schools use today. Under the Bakke and Grutter Supreme Court precedents, public (as well as private) law schools are prohibited from making use of quotas, two-track admissions schemes, or fixed points added to the numerical indices of minorities….

Professor Sander argues that, in fact, the Michigan law school program, despite its seeming flexibility and inscrutability, employs race in just as ambitious (critics would say aggressive) a way as did the Michigan undergraduate plan [which the U.S. Supreme Court found unconstitutional in Gratz]….

Moreover, and more important, Sander argues, the way race is used at the Michigan law school is the same way race is used in many if not most law school affirmative action programs. Indeed, Sander says that he has “been unable to find a single law school in the United States whose admissions operate the way Justice O’Connor describes in Grutter” – that is, where race is used as a flexible plus factor that does not effectively dominate over all other diversity criteria. The system of aggressive racial preferences is not, Sander says, confined to the “elite” law schools. Rather, “it is a characteristic of legal education as a whole.”

According to Sander, law school affirmative action across law schools is characterized by a “cascade” effect. As the elite schools “snap up” the blacks who otherwise would have been admitted to and have attended the next tier of schools, that next tier of schools snaps up the blacks who would have otherwise attended the tier below. And so forth.

The Mismatch Effect

This systematic cascade phenomenon is important, because when race is being used so weightily in schools all the way down the ladder, the result is that the African Americans who are admitted to each school under an affirmative action program are significantly less numerically qualified than are their white competitor students at that school, who were admitted outside the affirmative action plan. Sander calls this phenomenon the “mismatch” effect – black beneficiaries of affirmative action are “mismatched” at schools whose non-affirmative action students possess better credentials and skills.

Because of the pronounced mismatch effect that extends down the law school hierarchy, blacks tend to suffer poor grades in law school. According to the data Sanders adduces, the median black law student’s GPA at the end of the first year of law school places him at the 7th or 8th percentile of his class. Put another way, more than 50% of black law students are in the bottom one-tenth of their law school class (in terms of grades) at the end of the first year.

The Long-Term Costs of the Mismatch Effect – Bar Passage and Job Placement

This poor academic performance in law school, in turn, creates two distinct costs for African Americans. First, Sanders argues, the poor grades lead to a very poor bar passage rate. As he points out, “only 45% of black law students in the 1991 cohort completed law school and passed the bar on their first attempt.” That number is far worse than the comparable number for whites.

Sanders goes on to argue that many of these blacks with poor grades would have had better grades – and have ended up with a higher chance of passing the bar – if they had been at law schools more commensurate with their academic skills. Sander’s data suggests to him that black students at any law school who have the same law school grades as white students at that school pass the bar in the same percentages. In other words, blacks with good law school grades don’t fail the bar any more than whites with the same grades.

The problem, Sanders suggests, is that law schools have “mismatched” blacks in schools where they are unlikely to get good grades. By placing black students in environments where their grades will be higher – less competitive law schools — the system could improve their overall bar pass rate….

From all this, Sander argues that if race-based law school affirmative action were eliminated or reduced, the black bar passage rate would actually go up. According to his calculations, in the absence of preferential admissions, this rate would rise to 74% from the 45% he observed….

If affirmative action were eliminated, most black law students wouldn’t be ousted from law school entirely – they would simply attend law schools that “match” their numerical credentials more tightly. In other words, elimination of affirmative action would simply eliminate the mismatch effect – blacks would simply be attending less competitive and less prestigious schools than they are currently attending. And of those blacks who would be displaced from the bottom of the legal academic system altogether (i.e., those who need affirmative action simply to get into the least competitive schools), many of them today do not end up passing the bar and entering the legal profession in any event….

Sander says that blacks at better schools, but with poor grades, get worse jobs than they would if they were at lesser schools and had better grades. In other words, Sander argues, at all but the most elite schools, grades matter more than the school from which one graduates for black law job applicants. The upside of attending a better school is more than outweighed – in terms of employment options – by the downside of getting weak grades at that school, compared to the better grades that could have been obtained at a less competitive school….

So whether one focuses on passing the bar, or getting a good job, Sander says, there is a case that race-based affirmative action hurts, rather than helps, black law students.

Sander’s article has drawn howls of outrage from politically correct academicians, not to mention a long critique, to which Sander has responded at length. But Sander’s fact-based argument make eminent sense, not only for the effects of reverse discrimination at law schools but also for the effects of reverse discrimination generally, in the academy and in the workplace.

As is often the case, a government policy meant to help a particular group of people actually harms that group of people — and many others, as well. The effects of affirmative action illustrate the truth of the adage that there’s no such thing as a free lunch. Instead of forcing universities and employers to accept and hire unqualifed blacks, it would be better — for everyone — simply to give education vouchers to blacks. Such a program would eliminate the costly effects of affirmative action, make blacks more productive, and lift them economically.

Favorite Posts: Affirmative Action and Race