In the Sunday New York Times Opinion Section Dan Slater asks, “Does Affirmative Action Do What It Should?” However, his over-2000 word piece provides no semblance of an answer because he misrepresents affirmative action.
“Affirmative action policies attempt to compensate for the country’s brutal history of racial discrimination by giving some minority applicants a leg up,” he asserts. This is misleading, since the Supreme Court has emphatically rejected this compensatory justification. As a result, universities must insist that affirmative action is all and only about “diversity.”
Indeed, Grutter approved “the use of race” in admissions only because it accepted that the “diversity” minority students provide is “a compelling state interest” that allows for regulating the racial mix of students. According to that argument, preferentially admitted minorities are admitted so that others can receive the benefit of being exposed to their “difference.” Moreover, these students serve as fungible representatives for their race: After all, they could receive whatever benefits “diversity” has to offer by attending less selective institutions where their admission would not require discrimination against others.
Though Slater concedes that “diversity” provides the sole constitutional justification for affirmative action, he nevertheless describes preferentially admitted minorities as affirmative action’s “intended beneficiaries.” Thus, he spends most of his long article grappling with the “mismatch effect,” a phenomenon that contradicts the argument that affirmative action helps minorities.
Curiously, however, he ignores virtually all of the evidence for “mismatch,” spending an inordinate amount of space discussing (and quoting critics of) one example — the Law School Admission Council’s 1991 Bar Passage Study that found that black applicants who attended their first choice law school passed the bar exam at a lower rate than those who were accepted at their first choice but attended their second choice “where they were theoretically better ‘matched.'”
That study is certainly relevant to the “mismatch” argument, but it is probably not even among the top five smoking guns in the “mismatch” arsenal. Although Slater cites the work of Richard Sander and Stuart Taylor, he ignores the reams of evidence they present in their book, Mismatch, and the brief they filed in Fisher demonstrating that minorities who receive preferential treatment in admissions cluster in the bottom of their classes, have much lower grades and graduation rates, and pass the bar at lower rates than their non-preferred peers.
The weight of that damning evidence makes support for racial preference appear pathetic. To wit: one law professor cited by Slater, “believes that mismatch exists” but thinks it “might even be a good thing” because “striving alongside” more capable people builds character.
The real question is not whether affirmative action does “what it should”; rather, it is whether there really is a compelling interest in discriminating against many whites and many more Asians so that some whites can receive the benefit of being exposed to a few more minority students, especially since so many of the latter are damaged in the process.