AFFIRMATIVE ACTION: THE FLAWED REMEDY

Supporters of affirmative action argue that racial preferences are necessary if blacks and other minorities are to take their rightful place in society. They argue, further, that any institution or organization where the percentage of minorities does not match their representation in the general population is, by definition, discriminatory. In July 2003, the US Supreme Court seemed to agree, allowing the use of explicit racial preferences in law school admissions (Grutter v. Bollinger).

In a scathing critique of the majority opinion written by Justice Sandra Day O'Connor, author Shelby Steele wrote that by conflating "diversity" with "race," the decision in essence gave Consti' tutional cover to the unconstitutional practices of racialism and group preferences. The result, he predicted, will be the opposite of that intended: segregation, not integration. Continued Steele:

A remarkable feature of this opinion is the way it ignores the vast array of contradictions and unintended consequences that attach to affirmative action - a few of which are its racial divisiveness, its stigmatization of blacks as inferior, its facilitation of identity politics, its encouragement of a victim-focused identity in minorities, its reverse discrimination against whites and Asians, its preference for precisely the least needy minorities, its damage to the principle of excellence, its fostering of a parasitic diversity industry, its cynical refusal to allow the best and brightest minorities to compete openly with their white and Asian counterparts, its flaunting of the Constitution's equal protection clause, and of course its utter failure to close the academic gap between whites and blacks.

On top of all this come several studies showing that affirmative action, by mismatching blacks with their academic environments, actually harms the very people it is intended to benefit. Researchers Stephen Cole and Elinor Barber find that racial preferences at Ivy League colleges have a large and negative effect on the academic aspirations of black students. Dartmouth psychologist Rogers Elliot and three co-authors find that the same problem is keeping blacks out of the sciences. Richard Sander, UCLA law professor, documents even more serious and pervasive "mismatch effects" in legal education. Writes Sanders in the Stanford Law Review:

Elite law schools offer very substantial racial preferences. The result leaves 80% to 90% of black law students at significantly more selective schools than they would get into strictly on their academic credentials. Most legal educators have traditionally assumed that this helps blacks by giving them a more elite degree, better connections and maybe even a better education.

But in fact, my data show, about half of black law students end up in the bottom tenth of their classes. Very low grades lead to much higher attrition (blacks are 2½ times more likely to drop out of law school than whites) and to more trouble on the bar exam (blacks are six times as likely as whites taking the bar to never pass). My research suggests that in a race-blind system, the proportion of black law students graduating and passing the bar on their first attempt would rise from 45% to at least 65%, and the number of new, certified black lawyers each year would rise about 7%.

The affirmative action debate has generally been characterized by two camps that resolutely see the other side as hopelessly misguided or even evil. The emergence of careful, credible research on the mismatch effect may lead us to a more measured debate on when preferences produce clear net benefits and about how quickly we can move toward what everyone agrees is the ultimate goal: colorblind admissions.