Arguably the most notable brief filed in the Supreme Court’s big case on affirmative action comes from a pair of lawyers who have just published a book on the subject. The case is Fisher v. Texas, and the coauthors are Richard Sander, who is also an economist, and Stuart Taylor, the legal affairs writer. The argument they press is that “the biggest problem for minorities in higher education is no longer race but rather racial preferences.” If you ask why that is, their answer is “mismatch,” which also serves as the title of their book.
Here, from Mismatch, is how Sander and Taylor explain the concept:
An institution of higher education admits a student using such a large admissions preference that the student “finds herself in a class where she has weaker academic preparation than nearly all of her classmates.” The student, whose test scores and grades in high school indicate she would do fine at, “say, Wake Forest or the University of Richmond, instead finds herself at Duke, where the professors are not teaching at a pace designed for her. Instead they are teaching to the ‘middle’ of the class, introducing terms and concepts at a speed that is challenging even the best-prepared student.”
The student “falls behind from the start and becomes increasingly lost as the professor and her classmates race ahead.” Grades on her first exams put her at the bottom of the class. “Worse, the experience may well induce panic and self-doubt, making learning even harder.”
Large preferences can be and are used to admit legacy applicants and athletes. Still, it is usually the case, Sander and Taylor write, that large preferences are used to admit minorities—mainly African Americans and Hispanics—whose academic credentials are significantly lower than those of whites and Asian Americans. There are, of course, minority applicants whose scores and grades are excellent and on that basis alone would gain admission. But substantial numbers are admitted thanks to large preferences. And where such preferences are integral to an admissions policy, mismatching occurs.
Most selective colleges and universities, and most professional schools, use large racial preferences in admissions. And “a striking feature of our system of preferences,” the authors write, “is its tendency to cascade like a row of dominoes.” Elite schools “get their pick of the most academically qualified minorities, most of whom might have been better matched [academically] at a lower-tier school.” And the second tier of schools, “deprived of students who would have been academic matches, must then in turn use preferences to produce a representative student body, and so on down the line.”
Sander and Taylor observe that if the top schools practiced “strict racial neutrality,” then schools in every lower tier would be able to use much smaller preferences, or none at all, to achieve their racial diversity goals. But of course the top schools don’t practice such neutrality, though they do admit the most qualified minorities. As a result, “the cascade effect” multiplies “the scale on which preferences are used and effectively forces second- and third-tier institutions . . . to use larger preferences than do the schools at the very top.” And so it leaves many minorities even more mismatched.
Sander and Taylor accurately describe the system of preferences as it has evolved over the past five decades. And they show, drawing upon data and empirical tests, how the mismatching that results from large preferences, to quote from the book’s subtitle, “hurts students it’s intended to help”—students who do have, the authors emphasize, “what it takes to succeed.”
In most cases it’s a matter of where the students are enrolled. If students are mismatched and thus in “academic environments where they feel overwhelmed,” they tend to receive lower grades than if they were not mismatched, to learn less, and to drop out. Strikingly, they also tend to flee more rigorous subjects than would otherwise be the case, and to abandon aspirations to be scientists or scholars.
The Fisher case, the authors correctly observe, doesn’t directly pose the problem of mismatch. Abigail Fisher is a young white woman who was not admitted to the University of Texas and claims that the school’s racially preferential admissions policy unconstitutionally discriminated against rejected applicants from non-preferred groups, like herself. That’s the question before the Court, and it’s been the usual question in challenges like Fisher’s.
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.