The Radical Implications Of Affirmative Action

The Sander study of affirmative action in law schools (discussed widely, including by me here and here) continues to generate pre-publication controversy, as revealed in this article in the Stanford Daily. (Hat Tip to Dave Huber)

In the article, Richard Lempert of the Univ. of Michigan Law School, a co-author of a critique of Sander that will be published in the Stanford Law Review along with Sander’s study, is quoted offering a defense of affirmative action that reveals its quite radical implications. “Ultimately in an unequal society,” Lempert argues,

so-called neutral criteria reproduce the society’s inequalities. Affirmative action is a small step aimed at countering this. It is only a small step – if it were a big step we would see far less inequality today than we do.”

So, neutrality — judging everyone by the same standards — is impossible in “an unequal society.” This suggests that Lempert, assuming he actually believes in the kind of equality he appears to support here, would like to have not only admissions but also grading standards different for blacks and whites. And, after graduation, minorities presumably should be paid more for doing the same work as non-minorities, since “so called neutrality” in pay scales would re-inforce pre-existing inequality.

But why stop there? All inequality isn’t based on race. Poor people of whatever race are at a disadvantage compared to middle class and rich people. For that matter, poor people with educated parents have an advantage over poor people with uneducated parents. In some arenas Christians are at a disadvantage compared to Jews, and both are behind Asians. So much inequality; so little time! Ah, the work of progressives to equalize things is never done….

But wait! There’s more!

One sharp critique of Sander’s study that Lempert gives is that some African American students might be discouraged from applying to law school if affirmative action were abolished, or that they may not be familiar with the lower tier law schools to which they would be accepted without affirmative action.

“For example, it assumes that a black graduate of Stanford who wanted to go to Stanford Law School but has also applied to Davis would apply to and attend Cooley Law School in Michigan if that were the only school that would admit him,” Lempert said. “Most Stanford students, white or black, probably don’t even know there is a law school called ‘Cooley.'”

If this is “sharp” I would truly hate to see dull. Really, do Lempert and the Stanford Daily not see how lame, even silly, is this point? Let’s see, we have to lower the bar for minority students at famous, selective law schools, holding them to a lower standard than other applicants, because they are incapable of finding law schools where they could be admitted without a preference? This is not so much silly and lame (though it is both) as insulting.

Lempert’s comments are not the only lame ones reported in the Stanford Daily article. Prof. Mark Kelman, vice dean of the Stanford Law School,

is concerned that prospective minority applicants to the Law School will misinterpret the study as being representative of Stanford’s position on affirmative action.

“I worry to some degree that our outreach efforts will be hurt by what strikes me as a misperception that’s hard to correct for people outside the academic world,” he said. “Even though there’s no identification between our practices and what pieces are published in our Law Review, not all students thinking about applying will realize that.”

I sympathize with Dean Kelman. It really would be too bad for Stanford’s image if people (especially those applicants who, if Prof. Lempert is correct, have so much trouble finding appropriate law schools) were to get the idea that Stanford refused to extend benefits or impose burdens based on race. In that regard, perhaps the good dean should take some affirmative steps to limit the circulation of the Stanford Law Students Handbook, which states (p. 101) that the law school

prohibits discrimination, including harassment, against students on the basis of sex, race, age, color, disability, religion, sexual orientation, national and ethnic origin, or any other characteristic protected by applicable law in the administration of its educational policies, admission policies, scholarships and loan programs, and athletic and other University administered programs.

Unwary readers, especially readers “outside the academic world” who are unused to doublespeak, might get the mistaken notion that Stanford believes that all individuals should be treated equally, i.e., without regard to their races, religions, nationalities, ethnicities, sexes, or sexual preferences. Such a fundamental misperception would surely make Dean Kelman uncomfortable, and we wouldn’t want that.