Reviewed by Ronald C. Den Otter, Department of Political Science, California Polytechnic State University, San Luis Obispo. rdenotte [at] calpoly.edu.
In Fisher v. Texas, after years of uncertainty, the United States Supreme Court may finally decide that racial affirmative action in admissions decisions in higher education is unconstitutional. One way to understand the purpose of Mismatch is to see it as a bold attempt to reframe the affirmative action debate by exploring the possibility that racial preferences harm most of their intended beneficiaries. According to Sander and Taylor, the vast majority of law schools use such preferences in their admissions decisions (p.27). “Mismatch” occurs when “large racial preferences backfire against many and, perhaps, most recipients, to the point that they learn less and are likely to be less self-confident than had they gone to less competitive but still quite good schools” (pp.3-4). A decade ago, in his dissent in Grutter v. Bollinger, Justice Clarence Thomas voiced the same concern when he referred to “overmatched students” and their “[taking] the bait, only to find that they cannot succeed in the cauldron of competition” (at 372). While the authors examine both undergraduate and law school admissions, in what follows, I shall concentrate on the latter. My belief is that it is more likely than not that the Roberts Court will overturn Grutter and that such a decision will more adversely affect legal education. If the Court disallows the use of race in admissions decisions, undergraduate institutions still might be able to achieve racial diversity through something like percentage plans, but that option would not be feasible for law schools.
The book is divided into five parts: Introduction (a short description of the mismatch effect, its significance, and the practice of affirmative action in higher education); Stirrings of Mismatch (the discovery and history of the mismatch effect, its existence at most law schools, its magnitude, and the debate about it); The California Experiment (Proposition 209 and its aftermath); Law and Ideology (the lack of transparency in the implementation of affirmative action and the challenges of obtaining the relevant data to prove the mismatch effect); and The Way Forward (policy recommendations for reform).
Anyone who cares about the fate of affirmative action should read this book, especially if they are not familiar with Sander’s earlier research on the topic. Mismatch constitutes an important contribution to the ongoing affirmative action debate inasmuch as it contains data and arguments that even the most vocal proponents of affirmative action must take seriously. The uniqueness of Sander and Taylor’s approach involves their focusing not on so-called reverse discrimination against whites (and [*84] increasingly, Asians) but on those who are supposed to benefit, such as African-Americans and Hispanics. Despite the severity of the mismatch effect, Sander and Taylor do not want to eliminate racial preferences. Instead, they want to reduce them dramatically, to increase non-racial socioeconomic affirmative action, to ban race-based financial aid, and to enhance the transparency of the admissions process.
Because the effects of these proposals would amount to ending it and not mending it, it is surprising that Sander and Taylor did not simply call for an end to racial preferences. After all, there is not a single reason in the book that supports continuing their use. Indeed, such preferences harm most recipients in that the intended beneficiaries learn less and lose self-confidence in their academic ability, leading to lower graduation and bar passage rates (pp.3-4). A typical affirmative action beneficiary is likely not to be unprepared in an absolute sense but underprepared relative to her classmates who have been admitted mostly on the basis of their LSAT score and undergraduate GPA. Law professors teach to the median student and anyone at the bottom of the class is more prone to academic difficulties. As a result, most “beneficiaries” fall behind quickly, feel lost in class, stop trying, receive poor grades, and have higher bar exam failure rates (pp.4-5).
As it moves downward to lower-ranked schools, the mismatch effect of racial preferences worsens or cascades (p.19). When elite law schools grant a significant preference to an African-American or Hispanic applicant, who otherwise may not have been admitted, their doing so deprives a second law school of a qualified student who would have been better suited for a less academically rarefied environment. The second tier school acts the same way, taking away a student who might have thrived at a third or fourth tier school. The cumulative effect is to mismatch affirmative action recipients at all levels. But if such students had enrolled at lower-ranked law schools that better matched their academic abilities, they would have stood better chances of becoming lawyers.
On its face, the claim that most beneficiaries, if they were not mismatched, would have done better academically elsewhere, is speculative. In individual cases, no one knows what would have happened if that particular African-American or Hispanic student had not attended her first-choice school and instead had enrolled at her second or third-choice school where she may have been better equipped for academic success. As Sander and Taylor interpret the data, though, students who have comparable academic credentials but who attend their second or third-choice school and thereby are more appropriately matched, do better educationally and professionally (pp.55-65). The primary rationale for minimizing racial preferences, then, is to weaken the mismatch effect to ensure that most of those admitted are as academically qualified as their classmates (p.30). If Sander and Taylor’s wish were granted, most African-American and Hispanic students would end up at a lower ranked law school allegedly better tailored to their academic preparation.
Sander and Taylor present their findings [*85] as if they were merely empirical yet as a whole, their book is a normative argument against racial preferences that singles out their unintended, perverse consequences. In other words, they are not simply trying to demonstrate the mismatch effect; they are also trying to show that it is a decisive reason for severely restricting racial preferences in admissions decisions in higher education. If they are correct empirically, they may have shifted the burden of proof to those, like me, who believe that racial affirmative action remains constitutionally permissible and normatively justified. If it turns out that such affirmative action actually does more harm than good, all things considered, that fact might be a compelling reason for ending the use of race in law school admissions once and for all.
However, even if racial preferences are counterproductive, the authors still have to make the full constitutional and normative case that affirmative action is unacceptable. They would have to demonstrate not only that mismatch occurs and its effects are more than trivial but also that the curtailment of racial preferences would be warranted. As I explain below, my belief is that they have not established this conclusion because they have neglected numerous points that they would have to address before they would convince the undecided reader that either affirmative action is not justified or it is unconstitutional (which are related but separate questions).
Affirmative action is not just another public policy problem; it has historical, sociological, moral, and legal dimensions. Sander and Taylor present their book as if it has a limited objective, to present an empirical claim in the name of reform, but the book is unquestionably much more ambitious. While their approach to the topic is a clever way of altering the traditional debate over the merits of affirmative action, the analysis that they advance seems to assume that the educational gap that continues to exist between white and black students has nothing to do with past or present racism. The policy recommendations that they put forth at the end of the book, involving better parenting and improved K-12 education (pp.259-272), probably would strike even conservative readers as unrealistic. It is as if they are reluctant to come forward and say what they really think: that racism in America no longer can be blamed for the lack of academic achievement on the part of certain minority students. The trouble is that when we take the question of affirmative action out of its historical context, we forget the deeper causes of racial inequality in America that created the need for racial preferences in the first place. In Mismatch, the reader gets the feeling that we live in a post-racial world in which past racial injustices have nothing to do with the current racial problems that continue to exist in our society. Thus, she may be less sympathetic to the traditional policy rationale for remedial affirmative action programs, namely to compensate certain non-white groups for past racial wrongs and to level the playing field to offset present-day racial discrimination.
An opponent of affirmative action then can conveniently forget the past and complain about the apparent unfairness of a preference for a racial minority believing that whites no longer benefit [*86] from their racial privilege. This alleged unfairness or reverse discrimination is the foundation of the most well-known constitutional argument against affirmative action: that the Constitution is colorblind and white persons are a suspect class in need of special judicial protection. In Bakke, this line of reasoning allowed Justice Powell to conclude that any legislative classification that treats people differently due to their race triggers strict scrutiny standard of review, regardless of its underlying purpose.
As aforementioned, Sander and Taylor take a different tack, which is what makes their book interesting. At the same time, their doing so comes at the cost of calling into question the constitutional relevance of the mismatch effect. In their own words, “Fisher does not directly pose the problem of mismatch” (p.289). They cannot make the case that affirmative action is unconstitutional merely by demonstrating that racial preferences backfire. One problem is that they minimize or downplay other considerations that they would have to take into account to establish that racial preferences in higher education are not warranted. Sander and Taylor seem to assume that if such preferences backfire, then the game is over, yet that conclusion does not follow, as I shall explain below.
The other problem is that even if affirmative action is bad public policy, government still may implement such plans provided that the racial classification does not violate the Equal Protection Clause (or other laws). In Grutter, in her majority opinion, Justice Sandra Day O’Connor seemed to mean that racial diversity in the classroom, primarily due to its educational benefits, is a compelling state interest. In that case, the Law School was undeniably promoting racial diversity at the expense of its other forms. The admissions committee was not interested in creating a “critical mass” of religious or sexual minorities, artists, veterans, or people who grew up on farms. While in his dissent, Justice Antonin Scalia ridiculed O’Connor’s view, it is the law; that is, racial diversity itself arguably is a compelling interest or at least is an essential component of diversity in its broadest sense (not limited to racial diversity). What O’Connor said in Grutter, then, cannot be ignored even though in Gratz, the Court ruled that admissions committees could not give too much weight to race in deciding whom to admit. In Bakke, Justice Powell had written that the Medical School’s quota plan, the setting aside of sixteen of the one hundred seats in the first year class for certain underrepresented racial minorities, was not “precisely tailored” to the state’s interest in promoting diversity in its broadest sense.
By contrast, twenty-five years later, in the two University of Michigan affirmative action cases, O’Connor thought that the more holistic process of the law school was sufficiently narrowly tailored, whereas the practice of the undergraduate admissions committee of assigning points for being a certain racial minority was not appropriately tailored. Constitutionally, for purposes of admission, the form of a racial preference should be irrelevant. As I read Bakke, the underlying concern is the extent to which an admissions committee is giving too much weight to race as a factor in admissions decisions. [*87] The constitutional problem with assigning twenty points out of one hundred needed for admission is not the assigning of points per se but how the undergraduate admissions committee was using the race of some applicants (but not of others) as more than a mere plus factor, making the use of race too similar to the quota invalidated in Bakke. Anyone who can reconcile Grutter and Gratz deserves a medal. The only way to distinguish them is to give undue emphasis to the form of each admissions program or to insist that in Grutter, but not in Gratz, the admissions committee only treated race as a plus factor. The former seems to be constitutionally beside the point, unless one only cares about appearances, and the latter is factually inaccurate, as the conservative justices pointed out in their dissents in Gratz. In any event, if one is making a constitutional argument on behalf of the permissibility of racial preferences, one should emphasize how the University of Texas’s affirmative action plan may not conflict with the holding of Grutter and that that decision should serve as a precedent.
At present, there is no scholarly consensus on the magnitude of the mismatch effect. The data that Sander and Taylor present is not beyond criticism. Law schools give the race of some applicants, but not that of others, considerable weight in the admissions process under the guise of holistic review. As such, race functions as more than a mere plus factor, which is inconsistent with Bakke and Gratz. At times, it might be preferable for those who support the use of such preferences to be more open about it, as Sander and Taylor demand, even though in an increasing number of states, doing so would be admitting to breaking the law. I say that because it would bring into sharper relief the serious racial problems that still exist in America. Justice Sonia Sotomayor is famously proud of being an affirmative action beneficiary. It would be better for those who have benefited from affirmative action, like Sotomayor, to come forward and say so, as opposed to denying or minimizing the help that they received, as if it were undeserved or something to be ashamed of. That some of the beneficiaries of racial preferences would go out of their way to deny it reveals that the “stigma” concern, which Thomas raised in his dissent in Grutter, has not disappeared.
Whether an affirmative action beneficiary feels stigmatized or “tarred as underserving” in her own eyes or those of her white classmates is contingent upon the belief that race should be irrelevant in admissions decisions and that the only legitimate considerations are numbers and perhaps a few other non-racial factors. When a white student in one of my undergraduate classes, in opposing racial preferences, brings up the well-known stigma argument, I ask her whether she also feels stigmatized by being an “affirmative action” beneficiary. That question almost always confuses the white students in the class because most of them have never considered the possibility that they may not deserve the educational opportunities that they have. While we do not call it “affirmative action,” being white helps most white people, often in subtle ways, throughout their entire lives. Because this phenomenon is less noticeable, happens over time, and is harder to measure than admission figures for racial minorities, as far as some persons are concerned, it [*88] might as well not exist.
In the 2008 presidential campaign, the media paid little attention to how John McCain, who was the son and grandson of admirals, was able to get into the United States Naval Academy (he finished towards the bottom of his class). As everyone knows, George W. Bush was a “C” student as an undergraduate at Yale yet that poor academic record did not keep him out of the Harvard Business School. The giving of additional help to legacies may be less widespread and may produce a weaker mismatch effect but such a practice remains deeply morally troubling whatever we call it. In these examples, if one were only concerned about how poorly McCain or Bush did academically, then one would have missed the point, which is that we care more about how to define merit and the appropriateness of including certain characteristics in that definition.
For the sake of argument, for those who favor affirmative action, let us assume the worst: that Sander and Taylor’s mismatch hypothesis is correct, and that racial preferences in admissions in higher education produce some bad outcomes, including hurting most of their intended beneficiaries (and also assuming that white students do not benefit educationally from a more racially diverse student body, which was central to the Court’s holding in Grutter). Do such bad consequences necessarily mean that the debate in America about affirmative action is over?
I do not think so for the following reasons. First, it is probable that even if many racial minorities are hurt by affirmative action, some of them are bound to benefit. From their data, the authors can generalize to populations but not to individuals. In this context, individuals matter and even if many of them are mismatched, that may not be a good enough reason for taking away racial preferences from others who might thrive. Justice Thomas’s bitterness about his time at Yale Law School is well known, but his Ivy League background did not hurt him professionally. The same is probably true of President Obama.
The above remarks are not designed to denigrate Thomas or Obama but to use them and their accomplishments to illustrate the value of having access to an elite educational pedigree that opens certain doors. It is not hard to imagine that affirmative action provided opportunities allowing them to get where they are today. When it comes to consequences, we should not only be concerned about the bar passage rates of underrepresented minority law students. Even if the empirical evidence reveals that the mismatch effect harms many law students, that does not mean that affirmative action is failing to achieve one of its purposes, which is to create opportunities for non-white persons to hold the most prestigious and powerful positions in our society. There may be a heartbreaking choice between the higher failure rate of some affirmative action beneficiaries and increasing the likelihood that others will have such opportunities. Sander and Taylor recognize this point but are preoccupied with bar passage rates and say little about the possible trade-off (pp.108-109). They admit that this outcome (professional success) is “notoriously difficult to measure” yet conclude “that [*89] there is no decisive advantage to attending a more elite school” (pp.108-109). This statement would surprise anyone who is familiar with legal education and the legal profession. Those who attend lower ranked law schools tend to have worse job prospects, especially these days. And while some of them may have successful legal careers, they rarely obtain federal court clerkships, work for the most prestigious law firms in the country, become federal judges, hold high-level positions in the federal government, or enter the legal academy. I cannot conceive of a profession that is more pedigree-sensitive than the legal profession is. Every member of the current United States Supreme Court is a graduate of an Ivy League Law School.
Second, again assuming that the mismatch effect is as serious as Sander and Taylor make it out to be, what else, other than ending racial preferences, could be done about it? One option would be to offer better tutoring for less academically prepared students so that they could have a better educational experience. Today, compared with most other institutions of higher learning, law schools are financially well-off. The authors mention the possibility of remedial help and then almost summarily dismiss it (p.52). In my view, the failure of law schools to offer such tutoring is a matter of priorities, given the kinds of resources that they usually have and the lightness of the teaching loads of most law professors. A law school could provide the kind of support that any relatively underprepared student needs to compete more effectively with her classmates for grades and to increase her chances of passing the bar exam and becoming a lawyer. The goal would be to ensure that after three years even the most mismatched students at least would cross the threshold.
The better the law school, the less likely the professors are to teach in a manner that helps their students pass the bar exam. Professors at elite law schools take for granted that their students will learn what they need to know not to fail during their almost mandatory bar exam preparation course. Law schools could institutionalize serious mentoring programs to assist apparently mismatched students by enlisting third-year law students and faculty members or hiring special tutors the way that they hire writing instructors or other adjunct professors. This suggestion presupposes that the underlying cause of academic underperformance is being relatively academically underprepared, as opposed to not being socially ready for a somewhat hostile environment in which they do not receive critical support from most of their peers and instructors. Success in law school comes down to not only hard work and intelligence but to grasping, sooner rather than later, how to read cases, how to pick out what is most important in them, how to use study guides, how to write outlines, how to apply the law to hypothetical fact patterns on exams, and how to cope with the anxiety that law students inevitably feel. A law school that is committed to creating a more racially diverse legal profession cannot be indifferent to the fate of any of its law students, particularly to that of those who are most at risk of failing.
Third, Sander and Taylor favor class-based or socioeconomic affirmative action as an instrument of promoting social justice and minimizing the [*90] mismatch effect (pp.188, 197). This proposal has undeniable appeal and would be much less controversial to the public than the race-conscious variety. Furthermore, in terms of its fairness, it might be superior in that a privileged but underrepresented racial minority applicant perhaps should not receive a plus or more than a plus in admissions compared with a white or Asian applicant who is not as socioeconomically blessed. Also, but for the pool problem (the severe shortage of “qualified” African-American and Hispanic applicants), socioeconomic affirmative action might accomplish indirectly what its racial counterpart is designed to accomplish directly: to make each law school class more racially diverse. On the other hand, the traditional normative defense of affirmative action always has been to underscore the extent to which racism, apart from other forms of discrimination, continues to disadvantage non-white persons. Law schools can have different kinds of preferences; they do not have to choose between racial and socioeconomic affirmative action.
If true, the mismatch effect is one consideration among others that is significant in determining how or even whether being a member of a specific racial minority shall count as some kind of advantage. Nonetheless, conservatives will not use it in the name of reform. They will use it to end racial preferences in admissions decisions and will maintain that they are doing it for the good of affirmative action beneficiaries who are uninformed about the downside of attending a law school for which they are relatively academically unprepared.
Ultimately, Sander and Taylor’s solution is to reduce racial preferences to a bare minimum, to force admissions committees to come clean about the use of race in their decisions, and have almost all African-American and Hispanic law students end up at less prestigious law schools, which, among other things, would change the educational experience of white and Asian students. Although I disagree with this solution, I admire the extent to which the authors are willing to take a unpopular position among academics and pay a price for doing so when most of them view affirmative action as an extension of the civil rights movement and therefore, too important to be tampered with. Mismatch succeeds in raising some very serious concerns about why racial preferences may backfire. It fails, though, in finding common ground or turning the debate into a narrow empirical one that fixates on one outcome to the exclusion of the others. Constitutionally, even if racial preferences have perverse effects, public universities or law schools still may employ them unless they are illegal in that state. The Court has never treated affirmative action as a question of whether it hurts at least some of those that it is supposed to benefit. The main concern always has been the fairness of so-called reverse discrimination, which initially led to the application of strict scrutiny standard of review in higher education affirmative action cases.
Those who oppose affirmative action will treat Mismatch as a knockout blow. It will confirm everything that they have suspected about racial preferences: most African-American and Hispanic students are not as capable as their white and Asian counterparts and admissions officers and liberal law professors only [*91] care about diversity as an aesthetic interest. Those who support affirmative action could either parry the blow or roll with it. As I have tried to explain, if necessary, it can be taken on the chin. At most, Sander and Taylor have produced several reasons against affirmative action that may be compelling but have to be weighed against countervailing reasons. Without affirmative action in admissions at the most elite law schools, there would be very, very few African-American and Hispanic students, which would be a tragedy for the reasons that I articulated above.
In Fisher, there are five likely votes – Roberts, Scalia, Thomas, Alito, and Kennedy – to render the University of Texas’s affirmative action plan unconstitutional. Sander and Taylor do not seem to think that Justice Kennedy, the swing vote, is likely to vote to abolish racial preferences, yet he has never voted to uphold any affirmative action plan. Kennedy dissented in Grutter and joined the majority in Gratz. Also, he wrote a concurrence in Parents Involved, which dealt with a moderate way of using race in assigning students to public schools. I doubt that Kennedy is going to strengthen the narrow tailoring prong of the strict scrutiny standard by requiring race to be no more than a tiebreaker in admissions decisions, knowing that trying to do so would be futile in the real world. Rather, he is more apt to side with the conservative justices, overrule Grutter, and end the uncertainty. Thus, Mismatch may turn out to be more like a blow when a fighter already is on the canvas.
Fisher v. Texas Docket No. 11-345.
Gratz v. Bollinger 539 U.S. 244 (2003).
Grutter v. Bollinger 539 U.S. 306 (2003).
Parents Involved in Community Schools v. Seattle School District No. 1, and Meredith v. Jefferson County Schools 551 U.S. 701 (2007).
Regents of the University of California v. Bakke 435 U.S. 265 (1978).
Copyright 2013 by the Author, Ronald C. Den Otter