Two readers beat me to this post by Kimberly Swygert that describes a mind-boggling discrimination suit.
I won’t spoil Kimberly’s post for you by discussing the suit. Most of you recall the debate over the article in the Stanford Law Review by UCLA law prof Richard Sander, who argued that the preferential admission of blacks to law schools actually reduced the number of black lawyers. (If you don’t, see here, here, here, and here.) As Kimberly suggests, the suit that she discusses is similar to one of those preferentially admitted but ultimately unsuccessful law students suing the law school that admitted him.
John,
First, you accidentally linked yourself where you intended to link Kimberly.
Second, as I wrote on Kimberly’s blog:
I think we’re all missing the point here about calling this suit an abuse of the legal process. Either the Richard Sander (that law school preferences reduce the real number of lawyers by increasing bar failure rates, and that it harms minorities more than it helps) theory is right or wrong. If it is right, then the theory of this type of case IS PRECISELY RIGHT, and INDEED, I BELIEVE IS ULTIMATELY A MORE POWERFUL WAY FOR A CIR-LIKE ENTITY TO CHALLENGE PREFERENCES THAN THE GRUTTER CASE.
In fact, since just after the Richard Sander study was published, I privately recommended to CIR identify minority plaintiffs and pursue that as the next logical step on the preference issue. I hope this British success can be copied.
—postscript
Upon reflection now, I realize that you are saying there has been such a lawsuit here in the US and one was unsuccessful? Is that right — or do you mean that the student was unsuccessful because of the preferential treatment and could use the same theory — do you have any links to such a case if it exists?
The suit is indeed mind boggling, but not unexpected.
I’ve seen black men promoted to positions they were incapable of handling. In fact, I’ve seen black men promoted through college and graduate school when they should have flunked out.
Probably should be actionable. Might bring such nonsense to a halt.
Chetly – Thanks for catching the missing link to Kimberly, now fixed.
I was not saying — or didn’t mean to imply — that there had been such a case here in the U.S. I think your point about why such cases might be a good idea is fascinating, although I suppose it also makes sense to assume that the recipients of preferences assume some of the risk that goes with them. It would indeed be interesting to see such suits.
The recipients of preference often don’t know they receive them, and in most cases the institutions giving them and groups supporting the recipients lead recipients to believe that they are indeed “qualified” or just as likely to succeed, etc. Further, success rate differentials are concealed from recipients. In fact, they are often told, as was the case at U-M until Carl Cohen discovered the grids, that there are not even preferences. And when they fail (at higher rates), they are told further that the failure wasn’t there fault, but rather the system’s. I’m sure I could go on.
Under these circumstances, I don’t know how they could rationally “assume” the risks, or know what they are. The difficulty will be the ostracization that the plaintiff would face.
Chetly – Again, all good points. I’m sure you’re right, that many recipients of preferential treatment are kept in the dark and don’t know it. Still, I suspect that more than a few do know. For example, they know what their SAT or ACT scores were, and many will know the average scores for entering students at their schools. etc.