On Lani Guinier On Preferences

I didn’t post anything about Lani Guinier’s article in THE NATION last month because it struck me as substantively light and rhetorically overheated. But after a friend told me recently that she found it interesting, I went back and reread it. And found it substantively light and rhetorically overheated. I’ve just sent the following email about it to my friend:

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I tried without much success to find an argument/some arguments in Lani Guinier’s NATION piece to analyze. As with much of THE NATION’S stuff these days, it’s given more to sloganeering than to analytical argument.

Anyway, here are a few of her assertions, and my comments:

The bottom line in [the Administration’s] judgment seems to be that any attention to race, whether it is a nuanced point system, as at the University of Michigan college, or a more flexible and individualized process, as at the Michigan law school, is simply a quota in disguise. And yet neither the Solicitor General nor the President offers any specific evidence that anyone at either the college or the law school was admitted or excluded “solely” or even primarily based on race.

Saying “any attention” implies not much, when in fact Michigan gives so much “attention” to race that it is impossible to avoid the conclusion that a substantial double standard is at work. Plaintiffs have presented detailed data, based on material released by Michigan in discovery, of the relative chances of black and white applicants with the same grade and test combinations being admitted — for a large number of grade/test combinations — and found the probability of black admission/white rejections to be dramatic. For example, “the relative odds ratio favoring black over white students with same grades and test scores … at the University of Michigan … was 174 to 1…. To put this in perspective, the relative odds that a smoker compared to a non-smoker will develop lung cancer are 14 to 1.” (“Colleges and Quotas,” Wall St. Journal, 2/22/01)

Guiner does not explain why she thinks a 20 point bonus (out of a maximum of 150) for blacks and (some) Hispanics is “nuanced” or what she sees as the difference between a consistenlty achieved, year in and year out, “critical mass” of 10-15% minority students and something she would recognize as a quota.

Why does she assume that one must be excluded “solely” or even “primarily” because of race in order to be a victim of racial discrimination? Admitted applicants who received a 20 point bonus because of race obviously received other points as well, just as rejected applicants who may have fallen 5 points short and did not receive a 20 point bonus also conceivably could have scored higher in other categories than they did. So what? To say that this is not discrimination because race wasn’t the sole factor borders on the bizarre.

… when people who have lived on the darker side of our racial divide have access to our classrooms and our faculties, white and nonwhite students alike achieve better intellectual growth and improved capacity to participate in our multiracial democracy.

Actually, this sounds nice, but there’s no real evidence that it’s true. In any event, as I’ve argued, the preferentially admitted minorities would receive the same diversity benefits at less selective institutuions if preferences were dropped. And if Michigan students thus deprived of the benefits of some degree of diversity find it so compellingly important, they could transfer to Michigan State or Northern Michigan or Kalamazoo.

The first thread in the double bind is the artificial scarcity created by the overinvestment of state resources in prisons because of mandatory minimum sentences and three-strikes laws, which has starved educational budgets.

So, fewer prisons = greater diversity on campus? And to think, Ms. Guinier has tenure at Harvard Law School!

The central problem is that Michigan, as is true of most elite educational institutions, has allowed its admissions standards to be driven by the rankings posted by a newsmagazine. In the name of merit as determined by U.S. News & World Report, the current system emphasizes efficiency and brand valuation over individualized assessments; test scores over initiative, persistence and creativity; and wealth over diversity.

US News drives the notion that grades and test scores are a reasonable proxy for merit? Again, a truly bizarre assertion, for which there is no evidence.

High-stakes tests correlate well with socioeconomic status, but they are poor at predicting grades and totally unable to anticipate future career success. It was not affirmative action that kept the white plaintiffs out of Michigan; it was the mirage of merit (including commitments to social privilege and affluence) that was primarily responsible for their fate.

I’m relatively agnostic about these tests, but the point is, or should be, that if they’re no good they should be dropped. I have no problem with that. But obviously all the schools that maintain, on the one hand, that we shouldn’t use grades and test scores to keep out minorities have no problem using grades and test scores to keep out whites and Asians and members of non-preferred minorities. If the tests are no good, they shouldn’t be used at all. What is offensive, to both law and a sensible and widespread conception of fairness, is double standards. And speaking of which:

Bush himself was the beneficiary of this double standard, where we arbitrarily call something merit and thus it is so.

What double standard is that? As we discussed, giving preferences to legacies or athletes does violate a pure merit standard, and some affirmative action critics do believe in such a standard. But not the most perceptive critics. Race and religion are different; they are, and should be, “protected categories” on which the state should not be allowed to trespass. That is not true for other grounds of discrimination.

The logic of Guinier and the preferentialists is that if some discrimination is allowed, any must be allowed. Imagine their response if the state actually acted on that principle! Actually, you don’t have to imagine it. All you have to do is listen to their response to another category of state action where race is “one of many factors” given “attention”: racial profiling by police. No one is stopped “solely” because of race or ethnicity; there are always other factors as well, such as 1) young men between the ages of 17 and 45; 2) who book a reservation to fly across country 3) who pay for their ticket in cash and 4) are of Arab/Middle Eastern appearance. (By the way, the test scores of legacies at many institutions — such as Middlebury, about which the NY Times recently wrote — are often higher than the average of non-legacies.)

Test scores are not a fair or reliable way to distribute a scarce public resource, given the strength of their relationship to wealth rather than performance. Nor does the fictitious equation between test scores and merit actually fulfill the mission of public colleges to graduate students who go on to achieve individual goals, serve community needs and help society realize its democratic potential.

Fine. Then drop them, but drop them for everybody.

With its incendiary use of the language of quotas, the Bush Administration shifts our attention from this long-overdue debate about the relationship of admissions standards across the board to the democratic mission of higher education in an increasingly multiracial and knowledge-based economy.

This is a pretty weak grand finale. She finds the Bush language “incendiary” but actually defends the double standard of giving bonus points based on race as well as admitting minority applicants with substantially lower grades and test scores than is required of whites, Asians, and other non-preferred minorities. This is a disheartening echo of those who found the “incendiary” rhetoric of the abolitionists more offensive than slavery itself.

Discrimination on the basis of race is both wrong and presumptively unconstitutional. It requires extraordinary justification. Guinier doesn’t even provide ordinary justification here.