River Rafting

R. Lawrence Purdy

Editor’s note: This article is a comment on an essay in the Chronicle of Higher Education entitled “Affirmative-Action Programs for Minority Students: Right in Theory, Wrong in Practice” (Professors Camille Z. Charles, Mary J. Fischer, Margarita A. Mooney, and Douglas S. Massey). Our colleague Roger Clegg has already responded to the Chronicle essay, and here Larry Purdy, author of Getting Under the Skin of ‘Diversity,’ gives his own critique.

 

 

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In an essay which relies heavily upon the earlier work of William Bowen and Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (1998), the authors evaluate the continued use of “race-sensitive” admissions at many elite colleges and universities. With one cosmetic caveat, they like what they see and hope these policies continue. I respectfully disagree; and, as with Bowen’s and Bok’s earlier work, I fear these authors are re-plowing infertile ground.

 

As a preliminary matter, the essay mixes and matches two very different concepts, “affirmative action” and “race-sensitive policies” (or race-preferences). The former, in its best sense, is directly opposed to the blatant racial discrimination practiced under the latter. As a matter of historical background, “affirmative action” was devised to insure that no person would be discriminated against based on his race or ethnicity. It is a principle that most Americans agree deserves vigilant support and perpetual protection. Indeed, that is the essence of what President John F. Kennedy had in mind when he coined the phrase in 1961. His policy directed that “affirmative action” be taken to remove, not add, race as a factor in deciding who should be hired by the federal government.[1] Today’s race-preference policies fly in the face of that principle and frustrate the achievement of the color-blind society most Americans sincerely desire.

 

Notwithstanding that principle, the essay begins with a classic straw man argument. Its authors assert that opponents of race-preference policies object because these policies constitute “reverse discrimination,” thus “lowering the chance of admission for better-qualified white students.” Of course, there is no such thing as “reverse discrimination.” Racial discrimination is, simply, discrimination based on race. Whether it benefits or penalizes white students or black students is immaterial. It is fundamentally wrong, a concession sadly missing from the authors’ analysis. 

 

The authors then compound their error, as did Bowen and Bok in The Shape of the River, by evaluating the so-called fairness of these policies from a group rights perspective.[2] Doing so ignores that fact that each time race is used to discriminate in favor of an individual, a different individual is being penalized solely because of her different skin color. It is the antithesis of the “affirmative action” envisioned by President Kennedy. Moreover, this straw man (“whites versus blacks”) is a diversion. By focusing on the alleged minimal impact on majority white students as a group, the authors ignore the fact that race-preference admissions penalize minority Asian American applicants far more than applicants from any other ethnic group.

 

The authors then turn to their second argument, the so-called “mismatch hypothesis,” one they assert is not supported by hard data. As proof they again cite The Shape of the River, noting that “black students who attended selective institutions were more likely to graduate than their counterparts at less-selective institutions.” This, in fact, is a true, if meaningless, statement. What the authors don’t disclose is that graduation rates for all students across almost every ethnic group are higher at more elite institutions than they are at less competitive schools.[3] In fact, the graduation rates cited by Bowen and Bok do nothing to disprove the “mismatch hypothesis.” On the contrary, the data tend to confirm it. One needs only to note the significantly lower graduation rates achieved by the black students studied by Bowen and Bok, as well as the lower GPAs and class rankings[4] when compared with their Asian and white classmates, to suspect that far too many “mismatches” occurred. And these differing outcomes have important implications for minority graduates, which even Bowen and Bok acknowledge.[5]

 

Thus, the question remains: To what extent do race preference policies result in a “mismatch” for less-qualified minorities who are admitted because of their race? Or to frame the question in a slightly different fashion: Would these same students, had they attended less competitive schools—to which they presumably would have been admitted based on the same standards applied to all applicants, and graduated with comparably better GPAs and higher class rankings—have achieved similar, if not greater, success in the long run?

 

Colleagues of Bowen, who assisted in the analyses contained in The Shape of the River, have answered that question in the affirmative.[6] Even more important research has been done by UCLA law professor Richard Sander in his series of studies demonstrating the mismatch of minority law students admitted to more elite law schools under race preference policies.[7] Therefore, suggesting, as the essay does, that mismatches do not occur is contrary to Prof. Sander’s work; and is nowhere effectively rebutted in The Shape of the River (mainly because there is no proof offered by Bowen and Bok that the successful black students they report on actually received a race preference admission).[8]

 

Finally, there is one point about which we do agree. Race-preference policies can do tremendous damage to the minority students who are the supposed beneficiaries—or are even presumed (often falsely) to be beneficiaries. The authors admit that harmful stereotyping and stigma routinely accompany these policies, stigma which even the most able minority students (i.e., those for whom race made no difference in their admission) often find challenging to overcome. It is an unfair burden to carry; and entirely unnecessary.  Moreover, the cause for this harm could be removed in an instant with a simple change in policy.

 

In the end, I have to respectfully disagree with those who essentially adopt the old segregationists’ mantra that “race matters.” In my view, race should never matter; and that includes when it comes to deciding who shall be admitted or rejected at our nation’s elite educational institutions. Measuring each applicant fairly against the same standards should be the only goal. When that occurs, there can no basis for stereotyping a student, either for his success or for his failure, based on the irrelevant factor of his race.

 

R. Lawrence Purdy is a lawyer in private practice in Minneapolis, Minnesota. Between 1997 and 2003 he served as one of the trial counsel for the plaintiffs who challenged the race preference admissions policies at the University of Michigan. These cases (Grutter and Gratz) were decided by the United States Supreme Court in June 2003. Mr. Purdy  is the author of numerous articles about his work in these cases. His 2008 book, Getting Under the Skin of Diversity: Searching for the Color-Blind Ideal, is built around that work and offers a direct rebuttal to The Shape of the River.


 

[2] William G. Bowen & Derek Bok, The Shape of the River (1998) at 285. See discussion in Larry Purdy, Getting Under the Skin of Diversity (2008), at 218.

 

[3] The Shape of the River, Appendix Tables D.3.1 and D.3.2, at 376-379.

 

[4] Id at 72-78.

 

[5] Id at 142: “Grades have a powerful independent effect on earnings.”

 

[6] Stacy Berg Dale & Alan B. Krueger, “Estimating the Payoff to Attending a More Selective College,” National Bureau of Economic Research (NBER) Working Paper No. 7322 (Aug. 1999); also published in The Quarterly Journal of Economics (Nov. 2002) at 1491-1527.

 

[7] See, e.g., Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 Stan. L. Rev. 367 (Nov. 2004).

 

[8]Purdy, supra note 2, at 45 citing William G. Bowen & Derek Bok, Response to Review by Terrance Sandalow, 97 Mich. L. Rev 1917, 1918 (1999).

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