Kinsley: Overthinking affirmative action


Stuart Taylor Jr. was in my law school class. Or, more accurately, I was in his law school class, since he graduated at the top of the class and I graduated.

Now a senior fellow at the Brookings Institution, Taylor has co-written, with Richard H. Sander, a professor of law at UCLA, an influential book highly critical of affirmative action. I am hesitant to write about it, first because he is a friend I’d like to keep, and second, because the book is intimidating, both in its statistics and in its evident goodwill. But the book has gotten nothing but positive reviews. So I proceed in the commercial hope of stirring controversy and thereby increasing sales.

The book is called “Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It.” The thesis (and I hope this summary is fair) is not totally unfamiliar: Affirmative action results in blacks (and, to a lesser extent, Latinos) being admitted to colleges and graduate schools where most of the students are better qualified. The teachers aim their teaching at the median student, leaving the less-qualified students behind.


All of these effects can feed on one another until the student drops out, flunks out or switches to an easier major. Finally, a “cascade effect” makes things even worse: Top schools accept minority students who really belong at “less competitive but still quite good schools,” leaving those lesser schools to poach from the pool of candidates for places at schools one more step down, and so on.

“The student who would flourish 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.” In sum: “There is no serious dispute that large preferences greatly undermine paths to success for blacks” in fields like science, technology and law.

You won’t catch Sander and Taylor making the usual giveaway mistakes of people who insist that they oppose affirmative action out of concern for the minorities who benefit (or seem to) rather than the whites who lose out. They concede that this same mismatch dynamic probably applies to favoritism for alumni children and athletes, but say there aren’t enough data to prove it. They declare point-blank that racial differences in innate cognitive ability don’t exist, or at least aren’t supported by the data. They blame a variety of factors, mainly to do with home life in very early childhood, for the shortage of good minority candidates.

So are they right? I can’t prove them wrong, but I also can’t help doubting. Sander and Taylor have a model of higher education in their heads in which (to oversimplify, but not much) everybody in the U.S. can be ranked, from Stuart Taylor at No. 1 to my Aunt Sally with Alzheimer’s at No. 311 million, in terms of their qualifications for admission to Harvard Law School. And every law school can be ranked from Harvard or Stanford or Yale at the top to Johnny’s All-Nite Law School, Laundromat & Brew Pub at the bottom.

Both defenders and opponents of reverse discrimination imagine a similar model — the opponents saying that it’s unfair for No. 883 to get into Harvard Law School over No. 537 because No. 883 is African American, and the defenders saying that if it weren’t for centuries of slavery and discrimination, No. 883 would be ahead of No. 537. You start to ask yourself why anyone “deserves” any place in the hierarchy — brains, money, connections. It’s all just luck, really.

Then along come Sander and Taylor to argue that No. 883 really belongs at Law School


No. 35, will be happier there and more likely to graduate, and actually knows this in his heart.

Unlike prison, marriage or a cellphone contract, a top college or law school is harder to get into than to get out of. Even if massive numbers of minority students who wouldn’t otherwise make the cut are getting into Duke, that doesn’t mean they won’t be able to hack it there, or would be happier at Wake Forest or the University of Richmond. All of Sander and Taylor’s data can’t capture the myriad reasons students apply to one place or another, find happiness or not, do their homework or not, drop out or go on to engineering school.

The idea that a minority student who can get into Harvard, through favoritism or otherwise, would actually be well advised to turn it down in favor of, say, Ohio State — not because he thinks Ohio State is as good or better but precisely because he thinks Ohio State is a lesser school — strains credulity. But that is the advice Sander and Taylor are giving him.

Sander and Taylor are right that the current Supreme Court jurisprudence on affirmative action is a mess. The court ruled in 2003 that explicit racial quotas are unconstitutional at public universities, but race may still be considered in admissions as part of a more “holistic” consideration of a variety of factors. But what is the difference, ethically or practically, between a 10% quota and a “holistic” process that can be counted on to produce the same result as a 10% quota?

Yet Sander and Taylor very much favor affirmative action using social and economic status rather than race (with the caveat that such programs should avoid lowering standards as much as possible). This would end the absurdity of students from prosperous black families getting preference over those from poor and working-class white families. It would also be a social engineering nightmare. Who is “working class”? Does the number of siblings count? Is urban poverty worse than rural, or vice-versa? Every attempt to make a distinction would be lobbied and litigated.

In the end, it would probably hurt the very people it is intended to help.

Michael Kinsley, a former editorial page editor at The Times, is a Bloomberg View columnist.