The proper response to the stigma objection is to (1) acknowledge its strength, (2) diminish avoidable harms through careful design of affirmative action programs, (3) argue against exaggerations of stigmatic harms, and (4) insist that, ultimately, in reaching a conclusion about the wisdom of affirmative action, its benefits must be weighed against its drawbacks. I have already recognized that affirmative action imposes a stigmatic cost on anyone perceived to be a beneficiary. Even the staunchly pro–affirmative action researchers Derek Bok and William G. Bowen recognize that “the very existence of a process that gives explicit consideration to race can raise questions about the true abilities of even the most talented minority students.”89
It is difficult to quantify, however, with even a modicum of precision how much of a stigmatic cost stems from affirmative action. For one thing, the cost probably varies with the design of the affirmative action policy in question and according to the nature of the position in dispute. The more skilled, subject to objective testing, and historically meritocratic the position is, the more a preference regime and its beneficiaries are likely to be stigmatized. More stigma (and alarm) is likely to attend racial preference extended to, say, airline pilots than to trash collectors.90
There are reasons to believe that affirmative action is not as stigmatically burdensome as certain anti–affirmative action detractors suggest. Especially among racial minorities, relatively few complain about this cost, against the concomitant benefit. Some do, as we have seen. But most blacks and Latinos embrace affirmative action notwithstanding this drawback.
One thing they recognize is the notable unevenness of attitudes toward different sorts of preferences. Racial affirmative action is said to be highly stigmatizing. But the stigma objection is advanced much less strongly when the preference in question has to do with geography (collegiate in-state preferences) or alumni status (collegiate legacy preferences) or preferences for the wealthy or for those with connections.x A columnist sarcastically made note of this phenomenon in a piece about the emergence of Chelsea Clinton, Jenna Bush Hager, and Meghan McCain as television journalists under circumstances that suggest that their familial prominence played an outsize role in their hiring.
That’s the way it is in America. So let’s just call it what it is: affirmative action. I know that term has been corrupted in the public realm as shorthand for being on the receiving end of unearned privilege. Someone beats you out for a job, a spot in Yale’s freshman class? Blame affirmative action. The ones doing the blaming usually aren’t referring to women or veterans or people with disabilities or students with a building on campus named for dad, mom, or other generations that made their mark. It’s those minorities—you know, because minorities have always had it so great in America.91
A recurring complaint against the claim that, on balance, affirmative action more harms than helps its putative beneficiaries is that that argument flies in the face of the preferences expressed by racial minorities themselves—people who concur with the black student who said, “I’d rather be at [my elite law school] and feel stigmatized … than not be here at all.”92 Responding to one stigma critique, Sandra J. Mullings indignantly challenged what she saw as an assumption that “we [minorities] are too ignorant … to know what is good for us.”93 Bok and Bowen, in their important study The Shape of the River, also allude to the calculation that appears to have been made by most blacks in a position to accept affirmative action benefits. “The black matriculants themselves—who are, after all, the ones most affected by any stigmatizing effects—are presumably in the best position to weigh the pros and cons. The … data are universal. Black students do not seem to think they have been harmed as a result of attending selective colleges with race-sensitive policies.”94
That adults know what is best for themselves is surely a widespread and often warranted presumption. It is important, moreover, to be on guard against the insidious and deeply rooted habit of thinking that colored people simply do not know what is good for them—a habit that manifested itself previously in the fight over slavery (with some claiming that blacks flourished in bondage) and the fight over segregation (with some claiming that blacks preferred their subordinate “places”).95 Still, individuals and groups can act in ways that run counter to their own professed goals. All too frequently, people are misdirected by ignorance, habit, prejudice, and the many routine misperceptions that subvert optimal decision making. It is not enough, then, simply to scoff at those who assert that, notwithstanding popular support among minorities, affirmative action is bad for them. Sometimes people do not know their best interest or how best to attain their goals. In this instance, however, backers of racial affirmative action, including beneficiaries, are not misled by a mistaken impression of where their best interests lie. They see the benefits that accrue from access to opportunities that have long been out of reach for people like them. They see whites deploying any edge available—familial contacts, legacy preferences, celebrity, or wealth—to attain the very opportunities that have made affirmative action a battleground: the selective college or the career-making job. They wonder why, all of a sudden, people who previously expressed little concern over their fate are now working so hard to save them from affirmative action’s supposed perils.
THE MISMATCH OBJECTION
A complaint of long standing against affirmative action is that it creates debilitating mismatches by overpromoting beneficiaries, putting them in positions in which they are doomed to suffer dramatic negative comparisons with better-prepared white peers.96
A recent, much-publicized presentation of the mismatch objection is posited by law professor Richard H. Sander, who maintains that “blacks are the victims of law school programs of affirmative action, not the beneficiaries.”97 He shows that the boost given by affirmative action to racial-minority applicants is large, and that many of these applicants end up at schools where they struggle academically, receive mediocre or poor grades, and fail the bar exam at much higher rates than their white class- mates. He claims that many black students, misled by the academic establishment, have calculated wrongly the trade-off between attending a higher-prestige school and being saddled with a weaker academic record. He denounces the strategy of pushing minority students upward into higher-prestige schools than they would attend absent strong affirmative action because, he argues, a consequence of doing so is condemning those students to law school environments in which they learn less than they would at less prestigious institutions. According to Sander, the affirmative action trade-off between school prestige and weaker grades substantially harms black students. Thrown in above their heads, they fare poorly not only as students but as fledgling attorneys. Indeed, Sander goes so far as to maintain that “in the legal education system as a whole, racial preferences end up producing fewer black lawyers each year than would be produced by a race-blind system.”98 That is because, as he portrays it, the affirmative action mismatch prompts a substantial number of black students to attend schools that are simply too difficult for them—schools at which, mired at the bottom of the class, they develop all manner of self-defeating outlooks and habits that subvert efforts to capitalize on talents that might have been better nurtured at lesser schools.
Sander’s intervention has received a large amount of polarized attention.99 Some opponents of affirmative action cite him as if his hypotheses were incontrovertible. Much of the scholarly response, however, has been decidedly negative.100 Three of the key criticisms are that Sander underestimates the benefits of affirmative action, that he exaggerates its role in the subpar performance of black law students, and that he unreliably forecasts what would happen if affirmative action were ended.
Let’s begin with the complaint that Sander is insufficiently attentive to the bonus obtained by attending higher-prestige institutions. He portrays as unequivocally negative the situation of a student who is significantly outpaced by classmates. But Professors Ian Ayres and Richard Brooks note an aspect of the situation that Sa
nder largely ignores—that, at least sometimes, “when students are overmatched by their classmates, they appear to be carried along to more success.”101 Ayres and Brooks observe:
Overmatched students in more selective academic settings may be mentored and inspired by their better-credentialed peers or teachers, or obtain the advantage of greater institutional commitment of resources.…[I]t is not irrational for parents to want to get their kids into the best possible school (even if they are overmatched).102
Professor David Wilkins complains that Sander underestimates the full panoply of benefits that come with attending a higher-tier school even at the cost of lower grades.103 Sander recognizes that attending a higher-tier school gains one a placement and wage premium—for instance, entry into fancier firms that pay higher salaries. In Wilkins’s view, however, Sander grossly minimizes other benefits that come from attending higher-tier schools. Students attending elite schools, Wilkins observes, are
socialized into the habits and possibilities of eliteness and granted a lifetime membership in the elite networks to which the graduates of such institutions automatically belong.…[E]lite school graduates also obtain a visible and durable credential that they can use to signal to employers that they have received all of the valuable goods that elite schools provide.104
Over time, and especially with respect to black lawyers, Wilkins concludes, “the socialization, networking, and credentializing benefits of a degree from an elite law school dominate the educational and placement advantages discussed by Sander.”105 According to Wilkins,
the network effects of elite schools are so obvious that one would think that they would have to be a large part of any examination of the benefits of attending such institutions. Yet Sander ignores them entirely.…Being a Harvard, Yale, or Stanford graduate means being inserted into an exclusive club.…[It] opens up opportunities for relationship building across generations and domains of expertise and interest.106
Detractors also charge that Sander underestimates what would happen in the absence of affirmative action. He concedes that without it, the most elite law schools would have very few black students—probably in the range of 1 to 2 percent, as opposed to 8 or 9 percent. He estimates, however, that at the lower tiers the racial demographics wouldn’t much change: blacks boosted upwards by affirmative action would now return to “where they belonged” in terms of race-blind assessment of GPAs and test scores. Yes, there would be some blacks pushed out of law school education altogether by a race-blind regime, but many of them would have dropped out or failed the bar anyway. According to Sander, the improved performance of black students enjoying more compatible schools would actually lead to a net gain in the overall production of black lawyers.
There is reason, however, to doubt Sander’s forecast. Some analysts maintain that without affirmative action, black enrollment at the first-tier schools would decline by more than four-fifths, and at each of the next two tiers by about two-thirds.107 A consequence is that law would be a far less appealing career option. A dramatic shrinking of the number of black students in law schools might well dissuade other blacks from applying.
Several lessons can be drawn from the controversy surrounding Sander’s mismatch hypothesis.
First, the character of the discussion exemplifies the crisis of trust that continues to beset American race relations, including the study of race relations.108 Behind the scholarly jousting is a high level of suspiciousness and anger. Sander himself is well aware of this reality. That is why he began his initial scholarly pronouncement on mismatch with a remarkable autobiographical aside in which he informed readers that he is white, worked as a community organizer on Chicago’s South Side, participated in struggles for fair housing, and has a biracial son.109 This represented, at least in part, a preemptive effort to stave off charges of racism or insensitivity. It largely failed. Among many pro–affirmative action scholars and activists, Sander is seen as a wily, disingenuous enemy of affirmative action and treated accordingly.
Here, however, as elsewhere, feelings of besiegement on the part of affirmative action defenders has provoked conduct that undercuts their own self-professed goals. Some have tried to suppress Sander’s intervention. They have ostracized him and pressured individuals and organizations to cease cooperating with his efforts to obtain pertinent information on the academic and occupational records of law students. The attempted suppression, however, has actually been a boon to Professor Sander, since he gets to enjoy enhanced publicity and the considerable benefits of being seen as “brave” as well as “politically incorrect.” Furthermore, the attempts to stifle Sander suggest that he is onto something that his scholarly adversaries want to hide. The adoption of an excessively pugnacious attitude by affirmative action defenders is a big mistake. It facilitates the denial of important facts that warrant attention and discourages the valuable habit of reconsidering established practices that need reform.y
Sander has revealed and publicized sobering facts that display striking disparities in the grades, attrition rates, and bar-passage results of whites versus racial-minority law students. According to his calculations, in 2003, of black students starting law school, only about 47 percent were becoming lawyers, with one-third of those having to take the bar examination two or more times before passing. By contrast, 83 percent of entering white students were becoming lawyers, and only one in twenty of these required more than one attempt to pass the bar.110 That glaring disparity calls out for explanation. Perhaps the reason resides more in factors that Sander downplays, such as racially poisonous environments, than in the mismatch hypothesis that he propounds. That question never gets answered, however, without unflinching investigation that takes seriously the explanation that Sander posits. Just suppose, moreover, that mismatch is shown to be a major contributor to attrition, poor grades, and bar failures. A defender of affirmative action should be willing to accept that possibility. Existing arrangements are surely far from optimal. Perhaps there does need to be a recalibration of affirmative action programs to minimize avoidable costs.
A second lesson from the controversy is that a large part of the dispute between Sander and his adversaries has to do with an unacknowledged conflict over goals. Sander’s goal—the baseline against which he measures the current system of admissions in legal academia—is to create, each year, as many black attorneys as possible. An implication of that goal is that black attorneys are fungible—the person from a tier-five school who struggles as a modest lone practitioner and the major-firm litigation partner from a top-tier school who influences the hiring and promotion of scores of attorneys and episodically serves in the upper echelons of government. An alternative goal is to advance the black community as a whole, a goal that might be seen as better served by whichever admissions regime will assure the largest number of blacks at the most elite schools. Those who prefer the current regime to the one that Sander envisions might well continue to do so even if they believed he was correct in concluding that his regime would, on balance, generate more black attorneys. They might prefer the current regime on the grounds that attorneys are not fungible, that the cadre of black attorneys trained at the top-tier schools are more valuable to the black community than those trained at the lower-tier schools, and hence that, if necessary, maintaining the numbers at the higher-tier schools would be worth sacrificing marginal members or potential members of the black bar. To some, this train of thought will be distressingly elitist. It is in keeping, however, with the perspective of an important and commendable activist tradition dedicated to African American uplift. One contributor to this tradition is W. E. B. DuBois, who championed the idea of a talented tenth that would serve as a vanguard for African American advancement.111 Another contributor was the formidable foe of segregation, the mentor of Thurgood Marshall, and director of litigation for the NAACP, Charles Hamilton Houston. In his pioneering reorganization of the Howard University Law School, Houston took several steps that lessened the numbers of blacks able to ga
in access to a legal education (for example, he closed Howard’s night school and drastically toughened the grading) in order to create a more selective, prestigious, and influential school that would train social engineers capable of reforming the American racial order.112 Sander seems to believe that he is helping blacks by pushing changes that would, he thinks, advance the fortunes of average African American law students. Some of his adversaries contend, however, that the realization of his policy preferences would diminish Black America by lowering the number of black students who now obtain the premium bestowed upon those attending America’s most elite law schools.z
AFFIRMATIVE ACTION FOR WHOM: THE PROBLEM OF INDIVIDUAL ELIGIBILITY
Affirmative action programs bestow valued benefits. But who is eligible to be a beneficiary? What are the indicia of eligibility? And who, or what, decides contested cases? One might have thought that the determination of individual eligibility would emerge as a large and vexing problem for the administration of racial affirmative action. After all, when something of value is being dispensed, fraud or the threat of fraud usually lurks nearby. A striking feature of the American affirmative action regime, however, is the relative paucity of disputation over the matter of individual eligibility. There have been scores of criminal cases involving the eligibility of firms for affirmative action assistance.aa What I am concerned with here, however, are controversies involving natural persons. There exist notably few cases in which some authority has rejected an individual seeking racial affirmative action assistance on grounds of racial eligibility. Nor, thus far, has this subject been central to ongoing battles over American affirmative action (though it has generated a substantial corpus of scholarly examination).113
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