Mismatch

This book attempts to bridge the chasm.

We see merits on both sides of the moral issues raised by affirmative action. But moral arguments have dominated our national dialogue on the issue for decades, and they have neglected a more fundamental question: Does it work?

When the focus shifts from "Is it right?" to "Does it work?" a whole series of important real-world questions open up. And ideology becomes less important. Although people profoundly disagree on whether racial preferences are a legitimate way of expanding opportunity, almost everyone agrees on the underlying goal—expanding opportunity. And we hope that almost everyone would agree that if current programs are actually leading many or most preferred-minority students into academic distress and self-doubt as well as damaging their long-term success, something has to change.

This book demonstrates in detail how racial admissions preferences often undermine the success of the people they are intended to help. As if that were not bad enough, the pervasive secrecy that veils the operation and effects of racial preferences even from most academics has led to deception, ostracism of truth-tellers, lack of accountability, and an unwillingness to face awkward facts and undertake needed reforms. This book takes you on a tour of this largely hidden world.

We reveal much that is shocking, but we also see reason for hope. We find that neither tinkering by the Supreme Court nor the outright bans adopted by six states have effectively addressed the core problems. We think some moderate but dramatic reforms—limiting some particular abuses, improving the focus of preferences on the nonaffluent of all races, and making higher education admissions and outcome highly transparent—can go a long way toward correcting the worst abuses and could set in motion a cycle of virtuous self-reform that could turn a dysfunctional system into a highly effective, genuinely helpful one.

Given the emotional nature of this issue, we thought it would make sense to introduce ourselves and explain why we decided to write this book.

Around this time I developed the mantra that has guided my professional life ever since: Opportunities for real reform are rare and should be seized. When they come, it is incredibly important for reformers to get it right. Political capital should not be spent on programs that do not work or that produce harmful, unintended side effects. This, in turn, implies that those who really believe in reforms must also be their most demanding critics; they must seek out data to evaluate what works and what does not, and above all they must follow the facts where they lead.

I returned to school to study economics and law, and I became very interested in the problem of housing segregation. Despite the passage of fair housing laws, black-white segregation remained very high in the cities, and many liberals concluded that the laws were simply ignored. But there was some impressive, overlooked evidence that actual discrimination rates had fallen sharply since the 1960s. I developed and tested explanations of segregation that could reconcile these facts and that pointed toward different and more effective ways of tackling segregation directly. As I became closely involved in civil rights work, I was struck again and again by the way strongly held beliefs about public policy could blind people on all sides of important issues to the actual state of affairs. Otherwise smart and honest people often screened out inconvenient facts or felt that acknowledging weaknesses in their position only gave aid and comfort to their opponents. I saw this while serving as board president of a large fair housing organization, when some of my colleagues were reluctant to confront and address obvious cases of corruption or incompetence because to do so would embarrass "the movement."

As I recount in Chapter Four, I started to examine the operation and effects of affirmative action when, as a young law professor at UCLA in the mid-1990s, I became involved in efforts to improve the quality of academic support for struggling law students, many of whom had been admitted with large racial preferences. It soon became clear that these preferences were undermining rather than helping the students they were intended to aid. When California voters passed a ban on the use of racial preferences in 1996 (known as Proposition 209), I worked with colleagues at the law school to develop a race-neutral system of smaller, socioeconomic preferences that would expand opportunity while also improving academic performance. The class that we admitted in 1997 was not only (by economic measures) the most diverse we had ever seen; it also went on to have the highest bar-passage rate in the school's history.

Within a few years, however, efforts to evade Proposition 209 and bring race back into admissions decisions got under way in various parts of the University of California, including some of its law schools. At around the same time I found better data that would let me test my hypotheses about the effects of large racial preferences. In January 2005 I published an article that laid out for the first time the detailed operation of preferences in a sector of higher education and presented an array of evidence suggesting that the current system generally made black students worse off, both individually and collectively. This article generated enormous interest and debate; there was clearly a hunger in the legal academic community in general—and in particular from black students—for information on the largely hidden system of racial preferences.

That was the good news, but on the bad side were all the unhappy problems I had encountered in other areas of social policy, especially those touching on race. Those who believed in affirmative action—including some close and wise friends—were upset to see its inner workings revealed and critically examined; they saw this as simply providing aid and comfort to opponents who wished to abolish all racial preferences. Other prominent friends privately cheered my article as a necessary step toward reform but felt they must remain silent about their views for fear of stepping into the withering ideological crossfire between partisans on either side. And the leading institutions of legal education not only refused to take up the issue of reform but also took steps to make it more difficult for anyone to continue any evaluation of law school preference programs.

I took three lessons from the reception to my article. First, I needed to figure out a way to talk about racial preferences that didn't cause people to shut down. I sought out and interviewed dozens of people who, as students, had received racial preferences, and I developed a deeper sense of how it was experienced, how its benefits and harms were perceived, and more nuanced ways of discussing these. Second, I realized that a phenomenon as interesting and difficult as affirmative action itself is the culture of secrecy and doubletalk that surrounds it. That needed to be excavated. Third, it seemed important to bring more careful, dispassionate empiricists into the discussion about racial preferences; I worked with other scholars and foundations to find and make available databases and funding mechanisms that fostered neutral, careful empirical research on the operation and effects of racial preferences in higher education. Coincidentally, other scholars were getting interested in this subject as well, and over the past few years a rich mosaic of important research—still largely unknown to the public—has materialized. It is now fair to talk about an emerging consensus on many issues.

I had been deeply impressed by the work of my friend Stuart Taylor in exposing doubletalk and malfeasance in a variety of American institutions, and in November 2010 I suggested to him that there was a real need for an analytic but accessible book on racial preferences that would call universities to account while also reporting on the new wave of research and suggesting paths toward sensible reforms that cut across hardened ideological lines. Events since we started work on the project have propelled the issue of racial preferences into public discussion, and there are some signs of a healthier debate. Colleagues have told me for years that someday—but not quite yet—a time would arrive when there could be honest public discussion about the problems of affirmative action and some degree of consensus among liberals and conservatives about a constructive path forward. Stuart and I hope that this day has come.

In the political world I have made it something of a specialty to expose abuses by powerful politicians of both parties while taking on and proving wrong the journalistic conventional wisdom. I have done this in major controversies including the phony "House Bank" scandal of 1992, when I roasted the first Bush administration and sensationalistic journalists for politically driven smears of House Democrats; the much bigger and even more phony "Iraqgate" scandal, also of 1992, when House Democrats and major news organizations polluted a presidential campaign with bogus allegations of high-level criminality by the same Bush administration; the widely ridiculed sexual harassment claim of Paula Jones against President Clinton, which led to a 1997 Supreme Court ruling against him; the related Monica Lewinsky affair, which led to his 1998 impeachment; and the Duke lacrosse rape fraud of 2006–2007, which led to the disbarment of rogue prosecutor Mike Nifong. My book on that fraud, Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, coauthored by K. C. Johnson, also showed how scores of Duke professors, leaders, and the news media en masse joined in a disgraceful mob rush to judgment against white Duke students falsely accused by a black stripper. The race-driven campus and media pathologies explored in that book closely relate to those explored in this one.

I have also written scores of news stories and commentaries about racial preferences as a reporter and Supreme Court correspondent for the New York Times and writer for the American Lawyer, Legal Times, and National Journal. Over those same years I have evolved from an affirmative action supporter to an increasingly skeptical critic of the enormous, pervasive, and carefully concealed system of racial preferences into which it has morphed. My concerns have been fueled by in-depth reporting of facts, evidence, and impact on real people of all races, ranging from firefighters in Alabama, Ohio, and Connecticut, to students and teachers around the country. My major essay on racial preferences in 2004—"The Affirmative Action Cases," a chapter in a book entitled A Year at the Supreme Court—detailed how large racial preferences harm black students, including academic mismatch, fueling stereotypes of black inferiority, stigma, disincentives to study, papering over the ruinously bad educations of many blacks from birth to age eighteen, and the need for radical reform of our K-12 schools.

I have been privileged to discuss affirmative action privately with the only two African Americans ever to sit on the Supreme Court, the late, great liberal Thurgood Marshall, a passionate devotee, and the arch-conservative Clarence Thomas, a passionate critic. I used to visit Marshall's chambers occasionally, savoring every minute I could spend with this singularly unpretentious living legend. He loved to tell stories about his years of dangerous duty representing black murder defendants in racist southern towns, tangling with General Douglas MacArthur over mistreatment of black soldiers in Korea, and much more. The stories usually had a humorous twist. But once, when I wondered aloud whether the time was coming to wind down racial preference, Marshall turned grave. "I think we need it," he said, fixing me with a steady gaze. "Can you tell me you never got any advantage from being white?" I said no. "Well," Marshall continued, "you owe something."

I wonder what Justice Marshall would think now of large racial preferences were he alive and aware of the evidence in this book, which is quite consistent with Justice Thomas's forceful depictions of mismatch and other grievous harms to his fellow blacks. I loved Marshall. I like Thomas very much. I have learned from both.

I became acquainted with Rick Sander after writing admiring commentaries about his work. Rick asked me in late 2010 to coauthor a book that would seek a broader audience and would at the same time show how mismatch harms intended beneficiaries at undergraduate colleges as well as at law schools. I was aware that university leaders and the California State Bar had blocked Rick and other scholars from accessing databases that could go a long way toward proving—or disproving—his mismatch thesis. It struck me as a classic example of entrenched interests attacking a truth-teller.

I agreed to be coauthor subject to studying more closely the many critiques of Rick's statistical analyses by prominent scholars. My nonexpert conclusion was that Rick had much the better of the arguments with each of his critics. This reinforced my sense that his interpretations of the data were far more plausible. In addition, some critics had stooped not only to the usual dodging and distorting of data but also to ugly personal vilification. There they go again. I was in.

Affirmative action is a particularly confusing (and often political) term. In this book we generally distinguish between affirmative action and racial preferences . We use affirmative action to refer to proactive efforts to prevent discrimination against minorities and promote genuinely equal opportunity by ensuring that selection procedures are fair and by using outreach and recruiting to correct past patterns of exclusion. Racial preferences, in contrast, describe programs that allocate college admissions or other opportunities based partly on the race of a candidate.

In common parlance "affirmative action" usually refers both to the pool-expanding efforts we note above as well as racial preferences. Advocates of racial preferences often use this broad sense of affirmative action because there is—as hundreds of polls confirm—much more public support for affirmative action in some form than there is for racial preferences. We sometimes use "affirmative action" in this broad sense when we refer to general usage, as in "the affirmative action debate."

By higher education we mean all postsecondary schooling in the United States. We often refer to "colleges and universities" similarly to refer to higher education, and sometimes we use college alone to refer to undergraduate education and universities to refer to institutions that confer both undergraduate and graduate degrees.

We use an academic index to roughly quantify and compare the academic preparation of people applying for admission to a college or graduate program and to make discussions of things like racial preferences more concrete. When expressed as a number, the academic index runs from 0 to 1,000; applicants may receive up to 600 points based on their score on a standardized admissions test taken for a particular program (e.g., the SAT I for college applicants, the GRE for applicants to doctoral programs, the LSAT for law school applicants, etc.), and up to 400 points based on their GPA in whatever academic program they have most recently completed (e.g., high school for college applicants, college for graduate school applicants). Thus, for example, a high school senior who received an 1800 on the SAT I and had a 3.5 high school GPA would have an academic index of 750 (400 points for the SAT I score, because the student got two-thirds of the possible points on it, and 350 points for the HSGPA, because the student got seven-eighths of the possible points for that). Many higher education programs use some variation on this academic index, though they have many different methods of giving weight to test scores and grades. But however an academic index is defined, it is generally a strong predictor of whether a student will be admitted. At most law schools, for example, one can predict over 80 percent of the applicants who will be offered admission simply by knowing each applicant's academic index.

Sometimes, with academic indices and other measures of academic preparation, we will use percentiles to compare students or applicants. If Student Jones has an academic index at the 90th percentile of applicants to a particular school, that means that 90 percent of the other applicants have lower academic indices than Jones does. If Student Lee is at the 20th percentile, that means that 20 percent of the other applicants have lower academic indices than Lee does. Similarly, a decile refers to tenths of a distribution. A student in the top decile of her class is in the top tenth and is at the 90th percentile or above.

The concept of the academic index can help us distinguish between large and small admissions preferences. These are obviously subjective terms, but when we refer to a large admissions preference—whether it be based on race, alumni connections, or athletic ability—we generally mean a preference that is equivalent to adding 80 or more points to the academic index of a an applicant. This would be equivalent to a 240-point upward adjustment to an applicant's modern SAT I score. We discuss these ideas in more depth in Chapter Two.

We use black as a shorthand reference for African American, white as shorthand for Caucasian Americans, Hispanic as shorthand for Hispanic Americans (which subsumes the terms Latino, Chicano, Cuban American, Mexican American, etc.); we use Asian as shorthand for Asian Americans, including all American residents whose ethnic origins are in Asia; we use American Indian as shorthand for anyone who traces ancestry to one or more of the native tribes indigenous to the territory of the United States. We generally eschew the term minority, but when we do use it we are referring to all nonwhite groups. Racial preference programs often focus on underrepresented minorities, a term that includes any ethnic group that would be accepted at a lower-than-average rate under a race-neutral admissions program. Depending on the program and the context, Filipino Americans, Cambodian Americans, Cuban Americans, and many other ethnic groups might or might not be included. Because this can be a confusing term and is not widely used in common discourse, we generally avoid it. Moreover, in much of the book we do not specifically mention American Indians as the beneficiaries of admissions preferences, partly to simplify the discussion but more often because the relevant numbers are so small that we cannot make confident generalizations.