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Another Reason to End Preferences

Affirmative action also hurts the ‘beneficiaries.’

Oct 15, 2012, Vol. 18, No. 05 • By TERRY EASTLAND
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Accordingly, under the Court’s cases, a preferential admissions policy must not “unduly burden individuals who are not members of the favored racial and ethnic groups.” The Court’s doctrine thus accepts the possibility that a preferential policy can indeed, even unduly, inflict harm on non-preferred applicants. But what no majority has yet to see is that a preferential policy may actually harm students it’s supposed to benefit. To the contrary, in the Grutter case in 2003, the last majority (a bare one led by then-Justice Sandra Day O’Connor) to opine on preferences in admissions accepted the notion in the course of sustaining the Michigan law school’s admissions policy that preferences do indeed help minority students.

Sander and Taylor’s friend-of-the-court brief in Fisher is one of 92 such briefs. It is also one of the two that support neither party. Sander and Taylor’s declared purpose is to bring to the Court’s attention “a growing volume of very careful research, some of it completely unrebutted by dissenting work, [suggesting] that racial preferences in higher education often undermine minority achievement.” Where relevant, research treated in Mismatch is included in the brief. And notwithstanding the brief’s neutrality, Sander and Taylor understand the implication of their empirical arguments for the Court’s legal doctrine: “If preferences turn out to have mostly harmful effects​—​or even if the effects are often harmful and on balance ambiguous​—​then the fundamental legal premise for permitting this type of racial classification is gone.”

Sander is mostly liberal in his politics and Taylor less so but not a conservative. They have, you could say, been mugged by reality. Or as they put it in Mismatch: “It is this growing body of evidence that has caused the present authors to slowly drift over the past 25 years toward greater sympathy with the abolitionists.”

Still, they are not abolitionists​—​who would do away with preferences altogether​—​but reformers, willing to accept small racial preferences but also favoring disclosure requirements that would force schools using preferences to state that they are doing so, to indicate the size of the preferences, to tell students about the academic outcomes of past enrollees with comparable entering credentials, and to make publicly available data on the size of the preferences used and the learning outcomes of those who receive them.

The disclosure requirements are a terrific idea. But no reader of Mismatch—a major focus of which is “the pervasive secrecy that veils the operation and effects of racial preferences even from most academics,” leading “to deception, ostracism of truth-tellers, lack of accountability, and an unwillingness to face awkward facts and undertake needed reforms”—can think such requirements will be easy to put in place, much less enforced.

Ultimately, Mismatch contributes to the case for abolitionism. For if a preferential policy can harm both the preferred and the nonpreferred, why have such a policy at all? And is not the lesson to be drawn from the system of preferences and the mismatching it produces that it’s not such a bad idea, after all, to treat people without reference to their race?

Maybe what is needed is some reminder of the moral reason behind that idea, which is, as William Van Alstyne, then of Duke Law School, put it, that “individuals are not merely social means; i.e., they are not merely examples of a group, representatives of a cohort, or fungible surrogates of other human beings; each, rather, is a person whom it is improper to count or discount by race.”

Terry Eastland is publisher of The Weekly Standard.


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