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6/7/13 What Should the Supreme Court Do About Affirmative Action?

| Brookings Institution
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Article | May 20, 2013
What Should the Supreme Court Do About
Affirmative Action?
By: Henry J. Aaron
Author's note: the following review of the book Mismatch: How Affirmative Action Hurts
Students Its Intended to Help and Why Universities Wont Admit It by Richard H Sander
and Stuart Taylor, Jr. was commissioned by Leon Wieseltier of the New Republic on
September 10, 2012. It was submitted on January 30, 2013. No editorial comment having
been received to date, I am posting it on the Brookings web site.
The Supreme Court decision in Brown versus Board of Education was a watershed event in
several respects. It crowned a lengthy legal campaign to overthrow segregation in public schools.
It rapidly widened into a multi-front campaign to assure that African Americans, other minorities,
and women would not be excluded from any important aspect of American life. And it invoked
social science in support of a fundamental reinterpretation of the Constitution.
Following Brown, it soon became clear that removing legal barriers was not enough to end the
legacy of discrimination. Lyndon Johnsons 1965 speech at Howard University stated bluntly that
We seek not just freedom of opportunity. We seek not just legal equity but human ability, not just
equality as a right and a theory but equality as a fact and equality as a result.
To counter the effects of past discrimination, Johnson said, it is necessary not just to remove
barriers but also to offer help. Some assistance was procedural. Selective colleges, universities,
and graduate schools began for the first time to recruit minorities actively and to mentor them.
Other assistance was substantive, such as making race, sex, or national origin a plus factor for
jobs, contracts, and college admission. Programs of this sort immediately raised knotty
conundrums for law, ethics, and social science. Were they constitutional? Were they fair? Did
they work?
The legal problem was obvious. The 14 amendment states: No State shall...deny to any person
within its jurisdiction the equal protection of the laws. Title VI of the Civil Rights Act of 1964
prohibits discrimination on the basis of race, color, and national origin in programs and activities
th
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receiving federal financial assistance. Title VII of the Civil Rights Act flatly bars consideration of
race in hiring and promotion decisions. Many universities are state chartered and supported.
Private and public institutions of higher learning receive federal contracts. The constitution and
civil rights laws make no exception for discrimination practiced to redress past injustices.
Ethical issues are also inescapable. Giving African Americans or Hispanics a special break does
not increase the number of jobs or slots in university classes. Giving them an edge means
pushing others back in the queue. Many of those others never personally did anything wrong. If
giving such edges to past or present victims of discrimination was accepted, how large an edge
was it fair to give and for how long?
In its earliest phases, affirmative action clearly helped its intended beneficiaries. In 1933 when
Harold Ickes and his two lieutenants, Clark Foreman and Robert Weaverlater the first black
cabinet officer under president Johnsonrequired that blacks be hired to help build public
housing, there could be little doubt that African Americans benefitted from their action. When
Richard Nixons Secretary of Labor, George Shultz, commented about discrimination in the
building industry: We found a quota system; it was there; it was zero, there could be no doubt
that moving from zero would help those who had been excluded. The nation was so far from the
goal of fair treatment of minorities and women that possible conflicts with other objectives
seemed remote. But when selective colleges and universities began to admit minority students
with comparatively weak academic credentials, many of whom got poor grades and dropped out
at distressing rates, a new question arose...did race preferences, at least in higher education,
really help those they were intended to help?
Research on the impact of preferential admissions in higher education and litigation over its
constitutionality ran on parallel tracks.
The policy of boosting enrollments at selective universities and colleges from what came to be
called under-represented minorities developed rapidly during the 1960s and 1970s. It coincided
with efforts by those institutions to become genuine meritocracies. Although prestigious
undergraduate and graduate programs had always favored the academically talented, they also
held many slots for the offspring of previous graduates and generous donors. Athletic or artistic
skills helped too, of course. Discrimination in admissions was routine, primarily to hold down the
numbers of bright kids with the wrong religion or cultural background.
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Then in the 1960s and 1970s, the weight attached to good grades and high test scores on
entrance exams soared. Bragging rights came to those colleges whose entering classes had the
highest scores on college entrance examinations. Some slots were still held for the progeny of
previous graduates, the well-connected, the financially generous, and the artistically talented or
athletically skilled. But academic standards for admission rose at both the undergraduate and
graduate level. In simple terms, the good schools, more than ever before, became academically
excellent.
As far back as the 1970s concern grew that the policy of giving an edge to African Americans,
Hispanics, and other members of under-represented minorities, however well-intentioned, might
be doing more harm than good. Giving applicants from these groups an edge in admissions
necessarily meant that, on the average, they came with weaker academic credentials than did
whites. To be sure, selective schools offered matriculants big advantagesenriched
environments, good connections, and, to those who graduated, a valued credential. On the other
hand, students without adequate preparation might find the work just too difficult. As a result, they
might even learn less than they would at less selective institutions. They might suffer stigma or be
marked as second-raters or shamed as beneficiaries of unearned advantages, as many critics of
affirmative action claim and some supporters fear. The result would be low-academic
performance, high drop-out rates, wasted time and money, and, in extreme cases, blighted lives.
The risk of these adverse effects would be larger the greater the gap between the students
preparation and the norm at the institution they attended. This, in brief, was known as the
mismatch hypothesis.
Determining whether a mismatch effect actually exists is extremely difficult. Even if admissions
were race blind and even if there were no mismatch effect whatsoever, African Americans and
Hispanics admitted to selective colleges and universities would predictably have lower grades
and graduate a lower rates than do whites. This expectation is in no manner racist. It follows
directly from two indisputable facts. African Americans and Hispanics applying to college have
lower test scores and high-school grades on the average than do whites; and test scores and
grades both are predictive of academic performance.
A hypothetical example illustrates how these two facts will produce different success rates for
various groups. Imagine that colleges use an academic index for selecting students. The index
can take on three values: 1 (high), 2 (medium), or 3 (low). Those with a higher academic index do
better on the average in college than those with a lower score. Imagine also that out of every 100
whites, 35 score 1, and 35 score 2, and that out of every 100 African Americans and Hispanics 10
score 1 and 50 score 2. Selective schools admit only those who score 1 or 2, and they do so in a
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race-blind manner. Half of whites but only one-sixth of African Americans and Hispanics score 1.
Those who score 1 do better in college than those who score 2. It follows that whites will do better
in college on the average than will African Americans or Hispanics. This conclusion would not
follow if tests and grades under-predicted performance of minorities relative to that of whites. But
repeated studies have shown that tests and grades do not under-predict performance of African
Americans and Hispanics.
The observation that African Americans and Hispanics who enroll at selective universities have
lower qualifications for admission than do whites should therefore come as no surprise.
Affirmative action adds to the difference between test scores and grades of entering students. But
gaps would exist even if there were no affirmative action, and whether or not mismatch exists.
So, the challenge...how can one tell from the observation that African Americans and Hispanics
do less well in college than do whites at selective schools whether this gap results from
mechanical reasons of the sort just described or from harm inflicted through mismatch?
Simply comparing grades and graduation rates of various groups is not enough. The undeniable
fact that students from under-represented minorities get poorer grades and drop out more often
than white students do proves nothing about whether affirmative action helps or hurts its intended
beneficiaries. One could go further and measure whether students at selective institutions do
better or worse than do students with similar test scores and grades at other colleges and
universities.
That is just what Derek Bok and William Bowen, former presidents of Harvard and Princeton,
respectively, did in their evocatively titled book, The Shape of the River. This study, published in
1998, drew on a rich data set developed with the support of the Mellon Foundation, which Bowen
then headed. The survey reported on a large data setCollege and Beyondreporting the
college experiences, graduation rates, and subsequent earnings of 93,660 students who
graduated from thirty-four select universities and colleges in 1951, 1976, and 1989. Using
statistical techniques that controlled for the expected influence of high-school grades, pre-college
admission tests, race, and certain other characteristics, the authors found that African-American
students who attended elite universities did as well as or better than African-American student
who attended less elite institutions. The authors reported that they found no evidence to support
the mismatch hypothesis.
The Bok-Bowen study was highly influential. The authors are highly respected. The survey was
large. The information it contained was broad and detailed. Even so, the survey data were not
ideally suited to test the effects of affirmative action. The earliest surveyed cohort attended
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college before affirmative action was much practiced and it is not clear to what extent that cohort
drove the results. The data came mostly from highly selective institutions. Furthermore, because
the data have not been freely available, few scholars could check the Bok-Bowen findings or do
additional analysis. The importance of making data available so that other scholars may try to
replicate results and identify errors hardly needs emphasis in light of recent controversies
regarding the impact of government debt on economic growth.
Bowen and other co-authors revisited the question of how college affects students in 2009 with a
new study, Crossing the Finish Line, based on an even larger survey. This study reported on the
experiences of 124,522 freshmen who began college in 1999 at one of fifty-seven four-year public
universities. These institutions were generally less selective than those included in the College
and Beyond survey. Bowen reported some startling results. Regardless of the quality of the high
schools that students attended, their grades predicted college performance far better than did
standardized tests. The 2009 study also confirmed the major finding of The Shape of the River
that after controlling for high-school grades, test scores, race, and socio-economic status,
students were more likely to graduate from more selective than from less selective universities.
Once again, Bowen and his co-authors found no evidence to support the mismatchwhat they
called the over-matchhypothesis. Students are well-advised, they said, to enroll in the most
selective institution that will accept them.
Critics questioned whether the Bok-Bowen studies provided support for affirmative action.
Invoking considerations of fairness, Stephen and Abigail Thernstrom noted that high graduation
rates from elite institutions reflected not only the high qualifications of enrollees, but the high
expectations for graduation at them. Besides, they emphasized, giving a race- or ethnicity-based
edge to some necessarily involves a race- or ethnicity-based handicap for others. One of those
groups with a race-based handicap, they noted, are Asians, whose academic credentials on the
average outshine those of whites and who suffered much discrimination in American history.
Others argued that ordinary survey data are inherently inadequate to test the mismatch
hypothesis. No survey can measure all educationally-relevant student characteristics.
Specifically, surveys cannot measure aspirations or mental toughness, which are relevant to
educational outcome and may be correlated with the schools students attend. Many social
scientists argue that the best way, and sometimes the only adequate way, to test the effect of an
intervention is the randomized experiment. Such methods are routine in medical and agricultural
research, but they are not normally available to those testing the effects of affirmative action.
Students cannot be randomly assigned to colleges. And, even if they could be, the very act would
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color the results. Normally, analysts are stuck with survey data. They can do no more than control
statistically for every influence they can measure and hope that omitted factors are not very
important.
From the earliest years of affirmative action, those denied admission to schools that gave
minorities a race-based or ethnicity-based edge have challenged the practice in court. In 1978,
the Supreme Court ruled in The Regents of the University of California v. Bakke that the
constitution barred the university from setting aside a fixed number of slots in its medical school
class for under-represented minorities. But, universities could use race as a plus factor in
pursuit of diversity, which, the Court said, is a legitimate educational goal. To this day, however,
the Court has not defined exactly what diversity is or how one would know if it had been achieved.
Breaking with Bakke, the federal Circuit Court serving Louisiana, Texas, and Mississippi ruled in
1995 in Hopwood v. Texas that the University of Texas Law School could not use race as a factor
in admissions. The case never got to the Supreme Court, however, because Texas dropped the
challenged admissions practices.
Seven years later, the Supreme Court heard a pair of challenges to admission practices at the
University of Michigan. For undergraduate admissions, Michigan used a point scale based on
grades, test scores, and other factors. One hundred points assured admission. Under-
represented minorities received 20 points automatically. In Gratz v. Bollinger, by a 5-4 margin, the
Court reaffirmed that the pursuit of diversity is a legitimate goal, but it ruled that Michigans
procedure was not narrowly tailored, did not in general treat each applicant individually,
resembled a quota system, which the Court had disallowed in Bakke, and was therefore
unacceptable.
At the same time, also by a 5-4 vote, the Court upheld a race-conscious admission policy by the
Michigan Law School. In Grutter v. Bollinger, the court said that the use of race was acceptable
because the law school considered many factors and did so on an individual basis. The swing
vote in both cases and author of the opinion of the Court was the now-retired Justice Sandra Day
OConnor, who has been succeeded by Justice Samuel Alito, widely thought to be less
sympathetic than OConnor to affirmative action.
The legal history is marked by chaotic disagreement. Not only has the court been divided, but the
majorities have disagreed in the reasoning that has led to their judgments. For strong minded,
independent jurists to reach a common position by different reasoning is not unusual. But the
opinions reflect unresolvable internal conflicts. The Constitution guarantees equal protection,
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irrespective of race, national origin, sex, and age. Yet, American history is redolent of despicable
violations of those principles. When, at last, Congress and private groups began to take steps to
counter the legacy of discrimination, the highest court has been willing to curb, but not bar, these
measuresat least, not yet.
While the idea that the best qualified people should get jobs, the best proposal should win the
contract, and the best students should be admitted to selective colleges commands widespread
support, few people adhere rigidly to the principles of meritocracy. They understand that in many
cases no clear or reliable metrics exist for measuring merit. Furthermore, once one
acknowledges that colleges and universities may legitimately consider factors other than test
scores and grades in determining which applicants should be admitted, it is inevitable that some
students refused admission will be better qualified on academic grounds than those admitted.
The point made in virtually every legal brief by a litigant complaining of discrimination because an
African American or Hispanic with lower test scores or a weaker academic record was admitted
reflects a profound confusionsuch a result is inescapable once other criteria for admission are
allowed to influence results. And because race, musical talent, athletic skills, and other non-
academic characteristics predict academic performance less well than do grades and test
scores, it is likely that those admitted because of such non-academic qualifications will perform
less well, on the average, than those admitted for purely academic reasons. Their grades are
likely to be lower and they are likely to graduate at lower rates than those with stronger grades
and test scores. Other influences, such as compensatory programs for the ill-prepared, easy
grading (for athletes), or enrollment in gut courses can partly or fully offset such tendencies. But
the tendency is basic.
The issue of whether affirmative action in education is constitutional has returned to the Supreme
Court docket. On February 21, 2012 the Supreme Court agreed to hear arguments in the case of
Fisher v. Texas. Oral arguments took place on October 10, 2012. Outside interest in the case
has been intense. The court received 90 friend of the court (amicus curiae) briefs from
interested parties, including social scientists.
Following the Hopwood decision, Texas adopted a simple policy of admitting applicants in the top
10 percent of Texas high-school graduating classes. Although the top-10-percent formula
sacrifices some academic selectivity, it is a transparently reasonable admissions policy for a
state-chartered institution dependent on state funds for part of its budget. It does not explicitly
involve race or ethnic origin, but de facto residential segregation guarantees that this formula will
result in the admission of more African Americans and Latinos than if admissions were based on
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test scores. Since its adoption, this formula has accounted for 60 to 80 percent of undergraduate
admissions to the University of Texas. Following the Grutter decision, which sanctioned
admission policies that considered race in a narrowly targeted, individual manner, Texas
instituted what it called a holistic process to govern other admissions. The holistic admissions
procedure uses both an academic index, based on test scores and grades, and a personal
achievement index based on a wide range of other factors including two essays, family
background, activities in the community and elsewhere, and race.
Ms. Fisher, a white Texas high school graduate, was in the 12 percent of her class and
therefore was not admitted on the 10 percent plan. Nor was she admitted through the alternative
selection process. She was offered a place on a waiting list, which she refused. She challenged
the constitutionality of the Texas admission policy, claiming that but for her race she would have
been admitted and was thereby unconstitutionally denied equal protection under the law.
The briefs of the parties to the case focus on whether the use of race in the Texas formula does
or does not qualify as limited and individualized, as specified by Justice OConnor in Grutter v.
Bollinger. But the court may go further by limiting or overturning Grutter, and at least four justices
are thought to be disposed to do so. Persuasive evidence that affirmative action harms those it is
intended to help would buttress the ethical foundation for such a position. One of the amicus
briefs, by UCLA law professor Richard Sander and legal journalist Stuart Taylor, argues just that.
Their book, Mismatch: How Affirmative Action Hurts Students Its Intended to Help, and Why
Universities Wont Admit It, is a lengthy and rich argument in support of this position. So
significant is this indictment of affirmative action that another amicus brief, by a veritable Whos
Who of empirical social scientists is devoted to rebutting the Sander/Taylor brief. Social scientists
submitted several other amicus briefs, some in support of Ms. Fishers appeal, some opposed.
Mismatch extends and elaborates an indictment of affirmative action first presented by Sander in
2004 in a Stanford Law Review article. That article provoked intense controversy, personal
invective, and allegations of data suppression. Mismatch recounts this controversy in score-
settling detail and is, thus, also a personal memoir and an expose of intellectual politics in the
academy, as well as a laymans guide to social science research on a tricky subject. Co-author
Stuart Taylor comes to this tale with the background of having written Until Proven Innocent, a
chilling and devastating expose of the way a rogueand subsequently disbarreddistrict
attorney railroaded Duke lacrosse players after a stripper falsely accused them of rape, and tells
how Duke faculty members and administrators rushed to condemn the players despite abundant
warning signs of prosecutorial abuse.
th
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Sander and Taylor do not argue that affirmative action is inherently harmful to its intended
beneficiaries, but rather that it is pushed to a damaging extreme. To make their case, they lay out
a theory of how affirmative action, as practiced by the most select universities and colleges,
ramifies through much of higher education. A few top universities are able to attract most of the
academically able African Americans and Hispanics. Although the academic credentials of these
students, on the average, are not as strong as those of their white or Asian classmates, these
African-Americans and Hispanic students are mostly able to handle the academic challenges
they face at these top schools. Sander and Taylor argue that is why Bok and Bowen found that
most of the minority students they surveyed graduate and do well professionally.
But that is just part of the story. The selective institutions, Sander and Taylor argue, so seriously
deplete the limited pool of academically well-qualified minorities that lower tier schools, also trying
to meet affirmative action goals, admit applicants with credentials so weak that these students do
less well than they would at still less selective institutions. Mismatch can be inferred as well,
Sander and Taylor argue, from the finding that a larger proportion of students with a given SAT
score major in the difficult STEM subjects (science, technology, engineering, and math) at less-
selective than at more selective schools.
The reasoning is straightforward. First-level courses in these fields that serve as pre-requisites
for upper division study weed out students who are comparatively weak at the institutions they
are attending. Because affirmative action allows minority students to attend colleges where their
academic preparation is comparatively weak, such students are more likely to get weeded out
than they would be had they attended less-selective colleges and universities, where their
academic preparation would have been more competitive.
The strongest evidence for the mismatch hypothesis comes not from data on undergraduate
admissions but from information on law school graduates. The American Bar Association
compiled data on thousands of law school graduates from a wide range of law schoolsthe Bar
Passage Study (BPS). Because student grades and class rank depend, in part, on the average
academic strength of classmates, students with a given academic index are more likely to get
better grades at lower ranked law schools than they would at higher ranked law schools.
Furthermore, African American and Hispanic students covered in the BPS were the beneficiaries
of sizeable race- and ethnicity-based admission preferences at most law schools.
Based on data from the BPS, Sander and Taylor report two findings that, they argue, suggest
mismatch. First, African American and Hispanic law school graduates with similar academic
index scores (based on undergraduate performance) to those of whites passed the bar at lower
rates than did whites. But if one controlled for both academic index and law school grade point
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average, there was no significant difference in passage rates of African Americans, Hispanics,
and Whites. The reason why relative class standing influences bar passage, they argue, is that
instruction and grading are geared to the median student in each school. Students who are
weaker than average at a given school will find it hard to keep up, will learn less than they would if
instruction was geared to their level of preparation, and will therefore pass the bar exam at lower
rates than they would had they attended a school better tailored to for their academic skills. This
finding implies that law school students should not follow the advice from Bok and Bowen gave to
undergraduatesgo to the most selective school that will admit youbut should instead be very
careful not to over-reach.
Could both Bok/Bowen and Sander/Taylor be correct? The curricula at professional and graduate
schools are notoriously austere. The environment in law school is ruthlessly meritocratic to an
extent true of few undergraduate programs. If the conditions between undergraduate and
graduate schools and among undergraduate programs are sufficiently different, affirmative action
might help in some cases and hurt in others.
An intense intellectual battle followed Sanders 2004 article and continues to this day. One
exchange illustrates how hard the issues are analytically and how difficult it is to reach
consensus. Two members of the Yale Law School faculty, Ian Ayres and Richard Brooks, noted
that not all African Americans surveyed in the BPS accepted admission letters from the schools
they had listed as their first choices. Some went to lower choice schools that were mostly less
selective than the first choice schools. The students in the two groups were otherwise similar. If
mismatch were a problem, they reasoned, students who went to first choice schools would be
more likely to get low grades and less likely to pass the bar than those who went to less select
schools. In an initial draft, Ayres and Brooks found no such differences and stated that the
evidence provided no support for the mismatch hypothesis.
Sander reports that Ayres and Brooks shared their analysis with him and that he pointed out
errors, which they then corrected. After the corrections were made, Sander and Taylor claim that
the corrected results closely match what the mismatch hypothesis suggeststhose students
who did not go to their first-choice, relatively select law schools got better grades, graduated at a
higher rate, and were more likely to pass the bar on their first try. But, they assert, Ayres and
Brooks refused to modify the text of their initial draft. In addition, Ayres and Brooks are among the
signers of the amicus brief by quantitative social scientists which is highly critical of the methods
that Sander and Taylor use. This brief states flatly: Sanders research has major methodological
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flawsmisapplying basic principles of causal inferencethat call into doubt his controversial
conclusions about affirmative action....Sanders research does not constitute credible evidence
that affirmative action practices are harmful to minorities....
Quite apart from the analytical case that Sander and Taylor make against affirmative action,
Mismatch is an expose of politics and back-biting in the academy. It charges that those
controlling what should be publicly available data refuse access to people who it is feared will
come up with politically objectionable answers. It charges critics with refusals to admit
demonstrable mistakes. Both Taylors earlier book on the Duke rape case and Mismatch report
enough unreasoned and unreasonable behavior in the name of political correctness to make one
gag. Most importantly, Mismatch charges universities and colleges with a stunning lack of candor
regarding the extent of affirmative action and refusal to provide data with which analysts could
evaluate its effects.
Although Mismatch indicts affirmative action in its current form, Sander and Taylor recommend
that affirmative action be modified not ended. They note that minorities who are favored by
affirmative action disproportionately come from favored socio-economic groups, children of
professionals and others with higher education. They recommend that racial preferences be no
larger than preferences based on financial need and socioeconomic status. The emergence of
growing economic inequality heightens the appeal of class-based affirmative action. Precisely
how such balancing of racial, socio-economic, and needs-based factors might be achieved is not
explained in the book. Others have also urged class-based affirmative action as both fairer and
politically more acceptable than race-based affirmative actionnotably, Richard Kahlenberg who
has taken that position for nearly two decades. Unfortunately, Sander and Taylor leave a key
question unansweredif current race-based affirmative action harms intended beneficiaries, why
wouldnt a mix of some race-based and some class-based affirmative action also do so?
Particularly troubling for a technically minded reader/reviewer is the absence from a book running
to nearly 300 pages of any clear, technical presentation of the mismatch hypothesis. The authors
say at the outset that in order to keep the book to a reasonable length, they are omitting technical
or elaborating material but that such details can be found at their website. At various other points
in the book, readers are also advised that they can find further detail at the same web site. As I
write this review and after personal contact with both authors, the website remains without such
supporting material.
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What conclusions should the Court and the public take from Mismatch and the cacophony of
conflicting research on the effects of affirmative action? First, universities and colleges should
provide qualified analysts access to data on admission practices. It is not credible that
universities would suffer irreparable damage if their admission practices were publicized. Nor is it
believable that minorities who benefit from racial preferences would wilt from the stigma if these
practices were spelled out. The failure of colleges and universities to divulge data on the way
affirmative action operates should not be tolerated. The best way to correct any over-use or
misuse of affirmative action is not to ban it but to insist that its operation be illuminated with hard
data and further analysis.
Second, on the major themethe charge that affirmative action hurts its intended beneficiariesI
believe that judgment must still be withheld. Sander and Taylor present a powerful case that it
does so in particular instances. But the character of college and university programs and their
objectives is enormously varied. It is much more important to make sure that African Americans
and Hispanics are well-represented among tomorrows public officials and business leaders and
that they are well trained than it is to assure racial or ethnic diversity among tomorrows
mathematicians and biomedical researchers. Meritocratic values have their place. So too do the
values of inclusiveness. If there was ever a place where one size does not fit all, it is in the
treatment of affirmative action within the academy.
Author
Henry J. Aaron
Senior Fellow, Economic Studies
The Bruce and Virginia MacLaury Chair
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