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Legal Commentary

: Discriminations

?Massey Resistance?: Wrong In Theory And Practice, Part I

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[NOTE! This post has been UPDATED]

Virginia under the Byrd Machine engaged in ?massive resistance? to attacks on state-supported racial discrimination. For a while now Prof. Douglas Massey, a sociologist at Princeton, has been engaged in scholarly resistance to attacks on the racial discrimination at the core of affirmative action in higher education. The Chronicle of Higher Education has a long article today, ?Affirmative-Action Programs for Minority Students: Right in Theory, Wrong in Practice,? by Massey and several colleagues. It is adapted from their new book, Taming the River: Negotiating the Academic, Financial, and Social Currents in Selective Colleges and Universities, which will be published by Princeton this year. Their argument, so far as it can be determined by this adaptation, is wrong in both theory and practice.

The first clause of the first sentence turn out to be a reliable tip-off to what?s coming: ?The use of race-sensitive criteria in admissions continues to be controversial....? Aside from the not so hidden implication that those of us who oppose the use of ?race-sensitive? admissions criteria are insensitive to race, this euphemism reveals a discomfort with the literally accurate ?race preference? label these criteria deserve. In less politically correct times I would be tempted to describe this euphemistic squeamishness as a reluctance to call a spade a spade.

The second clause of that first sentence ? ?and critics have leveled three basic charges against it? ? is followed immediately by another and far more serious problem in their handling of the first of the ?charges? against those ?race-sensitive criteria?:

For one, opponents say the practice constitutes reverse discrimination, lowering the chance of admission for better-qualified white students.
First, as I argued here (and many other times),
Regular readers will know that I don?t believe there is any such thing as ?reverse discrimination.? A policy or practice is either discriminatory, or it isn?t.
Racial discrimination, in short, is racial discrimination, no matter what the race of the victim. Even more incorrect, however, is the notion that the only thing wrong with ?reverse discrimination,? in fact the only reason for opposing it, is that it ?lower[s] the chance of admission for better-qualified white students.?

This assertion is simply, flatly not true. Many (indeed, I believe most) of us oppose racial discrimination because we believe it is immoral, illegal, unconstitutional, and just plain wrong, regardless of the identity or number of victims. Because of this fundamental error, Massey et. al. think they can refute Charge No. 1 by claiming that it

has not stood up to empirical scrutiny. In fact, studies show that affirmative action generally has had only small and insignificant effects on the admission prospects of white students.
First, as I?ve just argued, the argument that not many whites or Asians were and are injured by race preferences policies, even if it were true (which it is not, as I argue below), would not rebut the most fundamental criticism of those policies, that racial discrimination is wrong whether its victims are many or few. This failed rebuttal, in fact, implicitly but no less offensively redefines ?discrimination? to be something that can only be suffered by groups, not individuals.

On a number of occasions we have confronted Massey?s argument that racial preference for blacks and Hispanics ?has had only small and insignificant effects on the admission prospects of white students.? For example, I looked (rather closely, I think) at the University of Michgan?s use of this argument here1, here2, and here3, from which the following comes:

The following is from a Q&A re University of Michigan Admissions Policies on a Michigan web site with its legal materials. [At least it was there, when I discussed it here and here. Now it has apparently been ?revised? and ?archived.?]
Q: Does the University?s consideration of race hurt a white student?s chances of getting into the University?

A: No. The numbers of minority applicants are extremely small compared to the numbers of white students who apply to the University.... It is not mathematically possible that the small numbers of minority students who apply and are admitted are ?displacing? a significant number of white students under any scenario.

But this is highly misleading. Remember, Massey et. al. argue that affirmative action has ?only small and insignificant effects on the admission prospects? of whites, not on whether they are actually ?displaced.? Thus the relevant question is how many whites and Asians (ignored by Michigan) were denied admission because of their race. Not all of those who were denied admission because of Michigan?s affirmative action would have actually enrolled had they been admitted, but they nevertheless were victims of race discrimination.

For a peek at how many were discriminatorily denied admission let?s turn, as I did in the posts linked above (and staying still with the third one here), to another Michigan source, Dr. Stephen Raudenbush, and expert witness for Michigan in Grutter v. Bollinger, the law school case. I quoted from Judge Bernard Friedman?s summary of some of Dr. Raudenbush?s data in his U.S. District Court opinion in Grutter, namely, that under the race preference policy in effect in 2000 170 ?underrepresented minorities? were admitted to the University of Michigan law school that year and that, if Michigan had used race-blind admissions, 46 would have been offered admission. Thus 124 white, Asian, or unpreferred minority applicants were denied admission solely because of their race.

Michigan, of course, was and is not unique, although the degree of discrimination is even greater at some other schools. For example, here, I quoted Prof. Robert Heidt, a law professor and former member of the admissions committee at the University of Indiana law school, who wrote in a courageous article that

to meet our de facto quotas, we must leapfrog less qualified minority applicants over approximately 330 more qualified non-minority applicants each year, many of whom, of course, will be Indiana residents.
But wait; there?s more. In the ?Q & A? I quoted above Michigan also leaned heavily on the weak reed of Bowen and Bok?s The Shape of the River.
William Bowen and Derek Bok, in their book The Shape of the River, look at the nationwide statistics concerning admissions to selective universities. They determined that even if all selective universities used a race-blind admissions system, the probability of being admitted for a white student would go only from 25 percent to 26.2 percent.
Here?s what I had to say about that in the post I?ve been quoting from:
What Michigan, and Bowen and Bok, are actually saying here is that there is no discrimination because there's not much of it, and what there is affects only some individuals, not their groups. Their argument is that discrimination against individuals doesn't count. The only discrimination that matters, that is in effect even worthy of being called discrimination, is against ?groups? ? and even then, only if its impact is severe enough to make a group ?underrepresented.?
....
Go back and look at the Bowen and Bok numbers quoted above. [But before you accept these numbers as accurate, you should read the long critique by Abigail and Stephan Thernstrom in the UCLA Law Review, June 1999....] According to Bowen & Bok, ?a white student? has a 25% probability of being admitted to a selective college under the current regime of race preferences, but under a ?race-blind? system that probability would increase ?only? to 26.2%. But what if one also considers Asians and other non-preferred minorities? B&B don't say. In any event, based on their numbers, for every thousand applicants to a selective college, 12 whites (Asians, etc., still invisible) are rejected only because of their race or ethnicity. Applying those numbers to Michigan?s 25,000 applicants every year to its freshman class, Michigan rejects 300 white applicants a year based exclusively on their race. [Emphasis added]
The article by Massey et. al. does not refer to the studies that allegedly find insignificant amounts of discrimination (presumably they do in the forthcoming book), not do they acknowledge here the studies that reach the opposite conclusion. For example, to pick just one example from one organization that has conducted many such studies, the invaluable Center for Equal Opportunity, here are some numbers for a 2006 study of the University of Michigan (taken from the Oct. 17, 2006, press release):
In the four years analyzed [1999, 2003, 2004, 2005], UM rejected over 8000 Hispanics, Asians, and whites who had higher SAT or ACT scores and GPAs than the median black admittee ? including nearly 2700 students in 2005 alone.
Of course not all of those 8000 rejected applicants would have been admitted in the absence of racial preferences ? selective universities do not and should not admit on the basis of test scores and grades alone ? but surely more than a ?small and insignificant? number would have been.

Do Massey et. al. really regard those numbers ? and the 124 applicants to the University of Michigan law school in one year and the 330 applicants to the University of Indiana law school in one year and the roughly 300 applicants for undergraduate admissions to Michigan in one year and the 1.2% of all white (and Asian etc.?) applicants to all selective colleges and graduate schools and professional schools ever year (if Bowen and Bok?s estimates are correct) who are denied admission solely because of their race ? as ?small and insignificant?? Perhaps they will tell us in their forthcoming book.

Attentive readers will have noticed that I have dealt with only the first of the ?three charges? Massey et. al. say we critics make against affirmative action. That?s why this post is Part I. If you?ve got the stomach for it, come back later when I?ll be back with Part II.

UPDATE [2:45PM]

NOTE! This UPDATE is not Part II. In fact, it is not so much an UPDATE as a transition to the still coming, later today, Part II. But I need to point you here and now, not there and later, to Roger Clegg?s post today on National Review Online?s Phi Beta Cons. I would like to say that great minds work alike, but it would be much more accurate to say that a great mind says there one or two things I said above, several things I didn?t say but should have, and more things that I like to think I would have thought to say in Part II even if I hadn?t read them here. Here?s one of the things he said that I should have said but didn?t: ?... there are a lot more than just three criticisms of racial admission preferences?:

The list of costs [of using racial preferences], on the other hand, is long and largely irrefutable: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school; it encourages a scofflaw attitude among college officials; it mismatches students and institutions, guaranteeing failure for many of the former; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership.
So much for what the Massey et al. article doesn?t discuss, Clegg writes. (By the way, he also suggested a major revision of my post, which I?ve made: he informs ? wish I could say reminds ? me that it?s ?et al.,? not ?et. al.?) ?As for what it does discuss,? you?ll have to read his entire post ... and my forthcoming Part II.

Full post as published by Discriminations on March 23, 2009 (boomark / email).

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