Who Really Won Michigan?

No, I’m not referring to the late unpleasantness otherwise known as the 2004 election. I’m referring to the June 2003 Supreme Court decisions rejecting racial bonus points in undergraduate admissions (Gratz) but allowing race preferences in a “holistic” individualized review for law school admissions (Grutter).

This is also the question asked by this article from today’s online Chronicle of Higher Education: Who Won Michigan? Colleges’ cautious reaction to the Supreme Court’s affirmative-action decisions may have snatched defeat from the jaws of victory.

The Chronicle article chronicles (no surprise there) the frustration many felt by many preference proponents that after Grutter preference opponents didn’t simply fold up their tents and slink away in the night. Not only did they not slink, but as Roger Clegg of one of the primary non-slinking organizations, the Center for Equal Opportunity, explains here, they remained on the offensive, with quite a bit of success.

As Clegg cogently explains, the popular impression that the Supremes handed the pro-preference forces an unambiguous victory in the Michigan cases is far from accurate. In fact, he writes, the pro-preference position came out of those cases worse than it went in:

Except in the three states making up the federal Fifth Circuit — Louisiana, Mississippi, and Texas — where the court of appeals ha[d] banned preferences outright, the law is actually now a little tougher on preferences than it was when colleges and universities could claim Justice Lewis F. Powell Jr.’s 1978 opinion in Regents of the University of California v. Bakke as their guide. Not only have preferences been struck down in Gratz, but in Grutter the court established new rules for determining when the use of preferences is “narrowly tailored.”

Clegg provides a comprehensive summary of the various fronts of the continuing war against preferences. Read the whole thing. He also provides a nice, concise summary of the high social costs of preferences:

The continuing decline of preferences and their lack of political support demonstrate that treating students differently on the basis of their race or ethnicity is unpopular among the vast majority of Americans — and for good reason. The use of preferences has undeniable costs: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination. It involves states and colleges in unsavory activities like deciding which racial and ethnic minority groups will be favored and which ones not, and how much blood is needed to establish group membership. It stigmatizes the so-called beneficiaries, reinforcing old stereotypes of black intellectual inferiority. It fosters a victim mind-set, removes the incentive for academic excellence, and encourages separatism. It compromises the academic mission of the university, creates pressure to discriminate in grading and graduation, and lowers the overall academic quality of the student body. It mismatches students and institutions, guaranteeing failure for many of the former. And it sweeps under the rug the real social problems of the poor academic performance of so many African-American and Latino students.

Not only are the costs high, but now even the benefits have come under withering attack, as exemplified by the increasingly influential article by Prof. Richard Sander of UCLA that racial preferences actually produce fewer black lawyers (discussed here, here, here, and here).

As discussed in yet another article in today’s Chronicle of Higher Education, the Sander study was a hot topic at the recent annual meeting of the Association of American Law Schools. At least as presented in this article, the quality of the criticism seems extraordinarily strained. For example:

Marta Tienda, a professor of demographic studies at Princeton University’s Woodrow Wilson School of Public and International Affairs, vigorously disputed Mr. Sander’s methodology, and argued that he had not proved a causal link between black students’ lower grades on enrollment and their subsequent difficulties graduating and passing the bar.

“Is this the kind of science upon which we want to predicate public policy?” she challenged.

Sounds like a good start to me, especially if Sander or someone has data indicating that as undergraduate grades go up graduation/bar passage rates go up. I wonder if Prof. Tienda challenges the use of high grades as an admission requirement for all students.

But at least Prof. Tienda believes in the relevance of data, which it would appear some Sander critics do not.

Vernellia R. Randall, a professor of law at the University of Dayton, said she found [Sander’s] conclusions patronizing.

“It’s all about statistics — it’s not about people,” said Ms. Randall, who is black. “How does he know what’s bad for me if he’s never even talked to me?”

As I recall, there’s nothing in the Sander article about Ms. Randall.