What Should the Supreme Court Do About Affirmative Action 5-20-2013

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Article | May 20, 2013

What Should the Supreme Court Do AboutAffirmative Action?

By: Henry J. Aaron

Author's note: the following review of the book Mismatch: How Affirmative Action Hurts

Students Its Intended to Help and Why Universities Won’t Admit It by Richard H Sander

and Stuart Taylor, Jr. was commissioned by Leon Wieseltier of the New Republic on

September 10, 2012. It was submitted on January 30, 2013. No editorial comment having

been received to date, I am posting it on the Brookings web site.

The Supreme Court decision in Brown versus Board of Education was a watershed event in

several respects. It crowned a lengthy legal campaign to overthrow segregation in public schools.

It rapidly widened into a multi-front campaign to assure that African Americans, other minorities,

and women would not be excluded from any important aspect of American life. And it invoked

social science in support of a fundamental reinterpretation of the Constitution.

Following Brown, it soon became clear that removing legal barriers was not enough to end the

legacy of discrimination. Lyndon Johnson’s 1965 speech at Howard University stated bluntly that

“We seek not just freedom of opportunity. We seek not just legal equity but human ability, not just

equality as a right and a theory but equality as a fact and equality as a result.”

To counter the effects of past discrimination, Johnson said, it is necessary not just to remove

barriers but also to offer help. Some assistance was procedural. Selective colleges, universities,

and graduate schools began for the first time to recruit minorities actively and to mentor them.

Other assistance was substantive, such as making race, sex, or national origin a ‘plus factor’ for

jobs, contracts, and college admission. Programs of this sort immediately raised knotty

conundrums for law, ethics, and social science. Were they constitutional? Were they fair? Did

they work?

The legal problem was obvious. The 14 amendment states: “No State shall...deny to any person

within its jurisdiction the equal protection of the laws.” Title VI of the Civil Rights Act of 1964

prohibits discrimination on the basis of race, color, and national origin in programs and activities

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receiving federal financial assistance. Title VII of the Civil Rights Act flatly bars consideration of

race in hiring and promotion decisions. Many universities are state chartered and supported.

Private and public institutions of higher learning receive federal contracts. The constitution and

civil rights laws make no exception for discrimination practiced to redress past injustices.

Ethical issues are also inescapable. Giving African Americans or Hispanics a special break does

not increase the number of jobs or slots in university classes. Giving them an edge means

pushing others back in the queue. Many of those ‘others’ never personally did anything wrong. If

giving such edges to past or present victims of discrimination was accepted, how large an edge

was it fair to give and for how long?

In its earliest phases, affirmative action clearly helped its intended beneficiaries. In 1933 when

Harold Ickes and his two lieutenants, Clark Foreman and Robert Weaver—later the first black

cabinet officer under president Johnson—required that blacks be hired to help build public

housing, there could be little doubt that African Americans benefitted from their action. When

Richard Nixon’s Secretary of Labor, George Shultz, commented about discrimination in the

building industry: “We found a quota system; it was there; it was zero,” there could be no doubt

that moving from zero would help those who had been excluded. The nation was so far from the

goal of fair treatment of minorities and women that possible conflicts with other objectives

seemed remote. But when selective colleges and universities began to admit minority students

with comparatively weak academic credentials, many of whom got poor grades and dropped out

at distressing rates, a new question arose...did race preferences, at least in higher education,

really help those they were intended to help?

Research on the impact of preferential admissions in higher education and litigation over its

constitutionality ran on parallel tracks.

The policy of boosting enrollments at selective universities and colleges from what came to be

called ‘under-represented minorities’ developed rapidly during the 1960s and 1970s. It coincided

with efforts by those institutions to become genuine meritocracies. Although prestigious

undergraduate and graduate programs had always favored the academically talented, they also

held many slots for the offspring of previous graduates and generous donors. Athletic or artistic

skills helped too, of course. Discrimination in admissions was routine, primarily to hold down the

numbers of bright kids with the “wrong” religion or cultural background.



Then in the 1960s and 1970s, the weight attached to good grades and high test scores on

entrance exams soared. Bragging rights came to those colleges whose entering classes had the

highest scores on college entrance examinations. Some slots were still held for the progeny of

previous graduates, the well-connected, the financially generous, and the artistically talented or

athletically skilled. But academic standards for admission rose at both the undergraduate and

graduate level. In simple terms, the ‘good’ schools, more than ever before, became academically

excellent.

As far back as the 1970s concern grew that the policy of giving an edge to African Americans,

Hispanics, and other members of under-represented minorities, however well-intentioned, might

be doing more harm than good. Giving applicants from these groups an edge in admissions

necessarily meant that, on the average, they came with weaker academic credentials than did

whites. To be sure, selective schools offered matriculants big advantages—enriched

environments, good connections, and, to those who graduated, a valued credential. On the other

hand, students without adequate preparation might find the work just too difficult. As a result, they

might even learn less than they would at less selective institutions. They might suffer stigma or be

marked as second-raters or shamed as beneficiaries of unearned advantages, as many critics of

affirmative action claim and some supporters fear. The result would be low-academic

performance, high drop-out rates, wasted time and money, and, in extreme cases, blighted lives.

The risk of these adverse effects would be larger the greater the gap between the student’s

preparation and the norm at the institution they attended. This, in brief, was known as the

mismatch hypothesis.

Determining whether a mismatch effect actually exists is extremely difficult. Even if admissions

were race blind and even if there were no mismatch effect whatsoever, African Americans and

Hispanics admitted to selective colleges and universities would predictably have lower grades

and graduate a lower rates than do whites. This expectation is in no manner racist. It follows

directly from two indisputable facts. African Americans and Hispanics applying to college have

lower test scores and high-school grades on the average than do whites; and test scores and

grades both are predictive of academic performance.

A hypothetical example illustrates how these two facts will produce different success rates for

various groups. Imagine that colleges use an academic index for selecting students. The index

can take on three values: 1 (high), 2 (medium), or 3 (low). Those with a higher academic index do

better on the average in college than those with a lower score. Imagine also that out of every 100

whites, 35 score 1, and 35 score 2, and that out of every 100 African Americans and Hispanics 10

score 1 and 50 score 2. Selective schools admit only those who score 1 or 2, and they do so in a



race-blind manner. Half of whites but only one-sixth of African Americans and Hispanics score 1.

Those who score 1 do better in college than those who score 2. It follows that whites will do better

in college on the average than will African Americans or Hispanics. This conclusion would not

follow if tests and grades under-predicted performance of minorities relative to that of whites. But

repeated studies have shown that tests and grades do not under-predict performance of African

Americans and Hispanics.

The observation that African Americans and Hispanics who enroll at selective universities have

lower qualifications for admission than do whites should therefore come as no surprise.

Affirmative action adds to the difference between test scores and grades of entering students. But

gaps would exist even if there were no affirmative action, and whether or not mismatch exists.

So, the challenge...how can one tell from the observation that African Americans and Hispanics

do less well in college than do whites at selective schools whether this gap results from

mechanical reasons of the sort just described or from harm inflicted through mismatch?

Simply comparing grades and graduation rates of various groups is not enough. The undeniable

fact that students from under-represented minorities get poorer grades and drop out more often

than white students do proves nothing about whether affirmative action helps or hurts its intended

beneficiaries. One could go further and measure whether students at selective institutions do

better or worse than do students with similar test scores and grades at other colleges and

universities.

That is just what Derek Bok and William Bowen, former presidents of Harvard and Princeton,

respectively, did in their evocatively titled book, The Shape of the River. This study, published in

1998, drew on a rich data set developed with the support of the Mellon Foundation, which Bowen

then headed. The survey reported on a large data set—College and Beyond—reporting the

college experiences, graduation rates, and subsequent earnings of 93,660 students who

graduated from thirty-four select universities and colleges in 1951, 1976, and 1989. Using

statistical techniques that controlled for the expected influence of high-school grades, pre-college

admission tests, race, and certain other characteristics, the authors found that African-American

students who attended elite universities did as well as or better than African-American student

who attended less elite institutions. The authors reported that they found no evidence to support

the mismatch hypothesis.

The Bok-Bowen study was highly influential. The authors are highly respected. The survey was

large. The information it contained was broad and detailed. Even so, the survey data were not

ideally suited to test the effects of affirmative action. The earliest surveyed cohort attended



college before affirmative action was much practiced and it is not clear to what extent that cohort

drove the results. The data came mostly from highly selective institutions. Furthermore, because

the data have not been freely available, few scholars could check the Bok-Bowen findings or do

additional analysis. The importance of making data available so that other scholars may try to

replicate results and identify errors hardly needs emphasis in light of recent controversies

regarding the impact of government debt on economic growth.

Bowen and other co-authors revisited the question of how college affects students in 2009 with a

new study, Crossing the Finish Line, based on an even larger survey. This study reported on the

experiences of 124,522 freshmen who began college in 1999 at one of fifty-seven four-year public

universities. These institutions were generally less selective than those included in the College

and Beyond survey. Bowen reported some startling results. Regardless of the quality of the high

schools that students attended, their grades predicted college performance far better than did

standardized tests. The 2009 study also confirmed the major finding of The Shape of the River—

that after controlling for high-school grades, test scores, race, and socio-economic status,

students were more likely to graduate from more selective than from less selective universities.

Once again, Bowen and his co-authors found no evidence to support the mismatch—what they

called the ‘over-match’—hypothesis. Students are well-advised, they said, to enroll in the most

selective institution that will accept them.

Critics questioned whether the Bok-Bowen studies provided support for affirmative action.

Invoking considerations of fairness, Stephen and Abigail Thernstrom noted that high graduation

rates from elite institutions reflected not only the high qualifications of enrollees, but the high

expectations for graduation at them. Besides, they emphasized, giving a race- or ethnicity-based

edge to some necessarily involves a race- or ethnicity-based handicap for others. One of those

groups with a race-based handicap, they noted, are Asians, whose academic credentials on the

average outshine those of whites and who suffered much discrimination in American history.

Others argued that ordinary survey data are inherently inadequate to test the mismatch

hypothesis. No survey can measure all educationally-relevant student characteristics.

Specifically, surveys cannot measure aspirations or mental toughness, which are relevant to

educational outcome and may be correlated with the schools students attend. Many social

scientists argue that the best way, and sometimes the only adequate way, to test the effect of an

intervention is the randomized experiment. Such methods are routine in medical and agricultural

research, but they are not normally available to those testing the effects of affirmative action.

Students cannot be randomly assigned to colleges. And, even if they could be, the very act would



color the results. Normally, analysts are stuck with survey data. They can do no more than control

statistically for every influence they can measure and hope that omitted factors are not very

important.

From the earliest years of affirmative action, those denied admission to schools that gave

minorities a race-based or ethnicity-based edge have challenged the practice in court. In 1978,

the Supreme Court ruled in The Regents of the University of California v. Bakke that the

constitution barred the university from setting aside a fixed number of slots in its medical school

class for under-represented minorities. But, universities could use race as a ‘plus’ factor in

pursuit of ‘diversity,’ which, the Court said, is a legitimate educational goal. To this day, however,

the Court has not defined exactly what diversity is or how one would know if it had been achieved.

Breaking with Bakke, the federal Circuit Court serving Louisiana, Texas, and Mississippi ruled in

1995 in Hopwood v. Texas that the University of Texas Law School could not use race as a factor

in admissions. The case never got to the Supreme Court, however, because Texas dropped the

challenged admissions practices.

Seven years later, the Supreme Court heard a pair of challenges to admission practices at the

University of Michigan. For undergraduate admissions, Michigan used a point scale based on

grades, test scores, and other factors. One hundred points assured admission. Under-

represented minorities received 20 points automatically. In Gratz v. Bollinger, by a 5-4 margin, the

Court reaffirmed that the pursuit of diversity is a legitimate goal, but it ruled that Michigan’s

procedure was not ‘narrowly tailored,’ did not in general treat each applicant individually,

resembled a quota system, which the Court had disallowed in Bakke, and was therefore

unacceptable.

At the same time, also by a 5-4 vote, the Court upheld a race-conscious admission policy by the

Michigan Law School. In Grutter v. Bollinger, the court said that the use of race was acceptable

because the law school considered many factors and did so on an individual basis. The swing

vote in both cases and author of the opinion of the Court was the now-retired Justice Sandra Day

O’Connor, who has been succeeded by Justice Samuel Alito, widely thought to be less

sympathetic than O’Connor to affirmative action.

The legal history is marked by chaotic disagreement. Not only has the court been divided, but the

majorities have disagreed in the reasoning that has led to their judgments. For strong minded,

independent jurists to reach a common position by different reasoning is not unusual. But the

opinions reflect unresolvable internal conflicts. The Constitution guarantees equal protection,



irrespective of race, national origin, sex, and age. Yet, American history is redolent of despicable

violations of those principles. When, at last, Congress and private groups began to take steps to

counter the legacy of discrimination, the highest court has been willing to curb, but not bar, these

measures—at least, not yet.

While the idea that the best qualified people should get jobs, the best proposal should win the

contract, and the best students should be admitted to selective colleges commands widespread

support, few people adhere rigidly to the principles of meritocracy. They understand that in many

cases no clear or reliable metrics exist for measuring merit. Furthermore, once one

acknowledges that colleges and universities may legitimately consider factors other than test

scores and grades in determining which applicants should be admitted, it is inevitable that some

students refused admission will be better qualified on academic grounds than those admitted.

The point made in virtually every legal brief by a litigant complaining of discrimination because an

African American or Hispanic with lower test scores or a weaker academic record was admitted

reflects a profound confusion—such a result is inescapable once other criteria for admission are

allowed to influence results. And because race, musical talent, athletic skills, and other non-

academic characteristics predict academic performance less well than do grades and test

scores, it is likely that those admitted because of such ‘non-academic’ qualifications will perform

less well, on the average, than those admitted for purely academic reasons. Their grades are

likely to be lower and they are likely to graduate at lower rates than those with stronger grades

and test scores. Other influences, such as compensatory programs for the ill-prepared, easy

grading (for athletes), or enrollment in ‘gut’ courses can partly or fully offset such tendencies. But

the tendency is basic.

The issue of whether affirmative action in education is constitutional has returned to the Supreme

Court docket. On February 21, 2012 the Supreme Court agreed to hear arguments in the case of

Fisher v. Texas. Oral arguments took place on October 10, 2012. Outside interest in the case

has been intense. The court received 90 ‘friend of the court’ (amicus curiae) briefs from

interested parties, including social scientists.

Following the Hopwood decision, Texas adopted a simple policy of admitting applicants in the top

10 percent of Texas high-school graduating classes. Although the top-10-percent formula

sacrifices some academic selectivity, it is a transparently reasonable admissions policy for a

state-chartered institution dependent on state funds for part of its budget. It does not explicitly

involve race or ethnic origin, but de facto residential segregation guarantees that this formula will

result in the admission of more African Americans and Latinos than if admissions were based on



test scores. Since its adoption, this formula has accounted for 60 to 80 percent of undergraduate

admissions to the University of Texas. Following the Grutter decision, which sanctioned

admission policies that considered race in a narrowly targeted, individual manner, Texas

instituted what it called a “holistic” process to govern other admissions. The holistic admissions

procedure uses both an academic index, based on test scores and grades, and a personal

achievement index based on a wide range of other factors including two essays, family

background, activities in the community and elsewhere, and race.

Ms. Fisher, a white Texas high school graduate, was in the 12 percent of her class and

therefore was not admitted on the 10 percent plan. Nor was she admitted through the alternative

selection process. She was offered a place on a waiting list, which she refused. She challenged

the constitutionality of the Texas admission policy, claiming that but for her race she would have

been admitted and was thereby unconstitutionally denied equal protection under the law.

The briefs of the parties to the case focus on whether the use of race in the Texas formula does

or does not qualify as ‘limited and individualized,’ as specified by Justice O’Connor in Grutter v.

Bollinger. But the court may go further by limiting or overturning Grutter, and at least four justices

are thought to be disposed to do so. Persuasive evidence that affirmative action harms those it is

intended to help would buttress the ethical foundation for such a position. One of the amicus

briefs, by UCLA law professor Richard Sander and legal journalist Stuart Taylor, argues just that.

Their book, Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why

Universities Won’t Admit It, is a lengthy and rich argument in support of this position. So

significant is this indictment of affirmative action that another amicus brief, by a veritable Who’s

Who of empirical social scientists is devoted to rebutting the Sander/Taylor brief. Social scientists

submitted several other amicus briefs, some in support of Ms. Fisher’s appeal, some opposed.

Mismatch extends and elaborates an indictment of affirmative action first presented by Sander in

2004 in a Stanford Law Review article. That article provoked intense controversy, personal

invective, and allegations of data suppression. Mismatch recounts this controversy in score-

settling detail and is, thus, also a personal memoir and an expose of intellectual politics in the

academy, as well as a layman’s guide to social science research on a tricky subject. Co-author

Stuart Taylor comes to this tale with the background of having written Until Proven Innocent, a

chilling and devastating expose of the way a rogue—and subsequently disbarred—district

attorney railroaded Duke lacrosse players after a stripper falsely accused them of rape, and tells

how Duke faculty members and administrators rushed to condemn the players despite abundant

warning signs of prosecutorial abuse.

th



Sander and Taylor do not argue that affirmative action is inherently harmful to its intended

beneficiaries, but rather that it is pushed to a damaging extreme. To make their case, they lay out

a theory of how affirmative action, as practiced by the most select universities and colleges,

ramifies through much of higher education. A few top universities are able to attract most of the

academically able African Americans and Hispanics. Although the academic credentials of these

students, on the average, are not as strong as those of their white or Asian classmates, these

African-Americans and Hispanic students are mostly able to handle the academic challenges

they face at these top schools. Sander and Taylor argue that is why Bok and Bowen found that

most of the minority students they surveyed graduate and do well professionally.

But that is just part of the story. The selective institutions, Sander and Taylor argue, so seriously

deplete the limited pool of academically well-qualified minorities that lower tier schools, also trying

to meet affirmative action goals, admit applicants with credentials so weak that these students do

less well than they would at still less selective institutions. Mismatch can be inferred as well,

Sander and Taylor argue, from the finding that a larger proportion of students with a given SAT

score major in the difficult STEM subjects (science, technology, engineering, and math) at less-

selective than at more selective schools.

The reasoning is straightforward. First-level courses in these fields that serve as pre-requisites

for upper division study weed out students who are comparatively weak at the institutions they

are attending. Because affirmative action allows minority students to attend colleges where their

academic preparation is comparatively weak, such students are more likely to get weeded out

than they would be had they attended less-selective colleges and universities, where their

academic preparation would have been more competitive.

The strongest evidence for the mismatch hypothesis comes not from data on undergraduate

admissions but from information on law school graduates. The American Bar Association

compiled data on thousands of law school graduates from a wide range of law schools—the Bar

Passage Study (BPS). Because student grades and class rank depend, in part, on the average

academic strength of classmates, students with a given academic index are more likely to get

better grades at lower ranked law schools than they would at higher ranked law schools.

Furthermore, African American and Hispanic students covered in the BPS were the beneficiaries

of sizeable race- and ethnicity-based admission preferences at most law schools.

Based on data from the BPS, Sander and Taylor report two findings that, they argue, suggest

mismatch. First, African American and Hispanic law school graduates with similar academic

index scores (based on undergraduate performance) to those of whites passed the bar at lower

rates than did whites. But if one controlled for both academic index and law school grade point



average, there was no significant difference in passage rates of African Americans, Hispanics,

and Whites. The reason why relative class standing influences bar passage, they argue, is that

instruction and grading are geared to the median student in each school. Students who are

weaker than average at a given school will find it hard to keep up, will learn less than they would if

instruction was geared to their level of preparation, and will therefore pass the bar exam at lower

rates than they would had they attended a school better tailored to for their academic skills. This

finding implies that law school students should not follow the advice from Bok and Bowen gave to

undergraduates—go to the most selective school that will admit you—but should instead be very

careful not to over-reach.

Could both Bok/Bowen and Sander/Taylor be correct? The curricula at professional and graduate

schools are notoriously austere. The environment in law school is ruthlessly meritocratic to an

extent true of few undergraduate programs. If the conditions between undergraduate and

graduate schools and among undergraduate programs are sufficiently different, affirmative action

might help in some cases and hurt in others.

An intense intellectual battle followed Sander’s 2004 article and continues to this day. One

exchange illustrates how hard the issues are analytically and how difficult it is to reach

consensus. Two members of the Yale Law School faculty, Ian Ayres and Richard Brooks, noted

that not all African Americans surveyed in the BPS accepted admission letters from the schools

they had listed as their first choices. Some went to lower choice schools that were mostly less

selective than the first choice schools. The students in the two groups were otherwise similar. If

mismatch were a problem, they reasoned, students who went to first choice schools would be

more likely to get low grades and less likely to pass the bar than those who went to less select

schools. In an initial draft, Ayres and Brooks found no such differences and stated that the

evidence provided no support for the mismatch hypothesis.

Sander reports that Ayres and Brooks shared their analysis with him and that he pointed out

errors, which they then corrected. After the corrections were made, Sander and Taylor claim that

the corrected results closely match what the mismatch hypothesis suggests—those students

who did not go to their first-choice, relatively select law schools got better grades, graduated at a

higher rate, and were more likely to pass the bar on their first try. But, they assert, Ayres and

Brooks refused to modify the text of their initial draft. In addition, Ayres and Brooks are among the

signers of the amicus brief by quantitative social scientists which is highly critical of the methods

that Sander and Taylor use. This brief states flatly: “Sander’s research has major methodological



flaws—misapplying basic principles of causal inference—that call into doubt his controversial

conclusions about affirmative action....Sander’s research does not constitute credible evidence

that affirmative action practices are harmful to minorities....”

Quite apart from the analytical case that Sander and Taylor make against affirmative action,

Mismatch is an expose of politics and back-biting in the academy. It charges that those

controlling what should be publicly available data refuse access to people who it is feared will

come up with politically objectionable answers. It charges critics with refusals to admit

demonstrable mistakes. Both Taylor’s earlier book on the Duke rape case and Mismatch report

enough unreasoned and unreasonable behavior in the name of political correctness to make one

gag. Most importantly, Mismatch charges universities and colleges with a stunning lack of candor

regarding the extent of affirmative action and refusal to provide data with which analysts could

evaluate its effects.

Although Mismatch indicts affirmative action in its current form, Sander and Taylor recommend

that affirmative action be modified not ended. They note that minorities who are favored by

affirmative action disproportionately come from favored socio-economic groups, children of

professionals and others with higher education. They recommend that racial preferences be no

larger than preferences based on financial need and socioeconomic status. The emergence of

growing economic inequality heightens the appeal of class-based affirmative action. Precisely

how such balancing of racial, socio-economic, and needs-based factors might be achieved is not

explained in the book. Others have also urged class-based affirmative action as both fairer and

politically more acceptable than race-based affirmative action—notably, Richard Kahlenberg who

has taken that position for nearly two decades. Unfortunately, Sander and Taylor leave a key

question unanswered—if current race-based affirmative action harms intended beneficiaries, why

wouldn’t a mix of some race-based and some class-based affirmative action also do so?

Particularly troubling for a technically minded reader/reviewer is the absence from a book running

to nearly 300 pages of any clear, technical presentation of the mismatch hypothesis. The authors

say at the outset that in order to keep the book to a reasonable length, they are omitting ‘technical

or elaborating material’ but that such details can be found at their website. At various other points

in the book, readers are also advised that they can find further detail at the same web site. As I

write this review and after personal contact with both authors, the website remains without such

supporting material.



What conclusions should the Court and the public take from Mismatch and the cacophony of

conflicting research on the effects of affirmative action? First, universities and colleges should

provide qualified analysts access to data on admission practices. It is not credible that

universities would suffer irreparable damage if their admission practices were publicized. Nor is it

believable that minorities who benefit from racial preferences would wilt from the stigma if these

practices were spelled out. The failure of colleges and universities to divulge data on the way

affirmative action operates should not be tolerated. The best way to correct any over-use or

misuse of affirmative action is not to ban it but to insist that its operation be illuminated with hard

data and further analysis.

Second, on the major theme—the charge that affirmative action hurts its intended beneficiaries—I

believe that judgment must still be withheld. Sander and Taylor present a powerful case that it

does so in particular instances. But the character of college and university programs and their

objectives is enormously varied. It is much more important to make sure that African Americans

and Hispanics are well-represented among tomorrow’s public officials and business leaders and

that they are well trained than it is to assure racial or ethnic diversity among tomorrow’s

mathematicians and biomedical researchers. Meritocratic values have their place. So too do the

values of inclusiveness. If there was ever a place where one size does not fit all, it is in the

treatment of affirmative action within the academy.

Author

Henry J. Aaron

Senior Fellow, Economic Studies

The Bruce and Virginia MacLaury Chair

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What Should the Supreme Court Do About Affirmative Action 5-20-2013

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