Paul L. Caron

Thursday, November 20, 2014

Sander: The Mismatch Critique of Law School Affirmative Action and Its Opponents

MismatchRichard Sander (UCLA), Mismatch and the Empirical Scholars Brief, 48 Val. U. L. Rev. 555 (2014):

In April 2013, the Valparaiso University Law Review held a symposium on diversity in legal education, commemorating the contributions of Justice Randall Shepard and featuring a number of distinguished speakers. I was invited to participate in a panel on Fisher v. University of Texas, a then-pending Supreme Court case that seemed likely to revise the rules under which universities can consider race in higher education admissions. The conference organizers generously allowed me to participate by videoconference, as did my co-panelist Professor Eboni Nelson. They and I agreed that my talk should explore some of the empirical issues that might frame how the Supreme Court viewed Fisher.

I approached the event with some concern. I had been the bête noire of many diversity advocates ever since 2005, when the Stanford Law Review published my long analysis and critique of law school affirmative action programs. I had advanced, and since steadfastly defended, something called “the mismatch hypothesis,” which postulated that very large preferences--racial or of any other kind--may undermine student learning, because professors tend to teach to the middle of their class, and students far below the middle will have trouble keeping up and advancing as concepts build day by day. Critiques of my essay had been many, but I had answered them, and an increasingly broad array of other scholars had published articles that found other strong evidence of mismatch in a wide variety of academic contexts. Certainly, the evidence for mismatch was mixed--at least in some contexts--and social scientists who found evidence of mismatch never argued--to my knowledge--that the existence of mismatch should preclude affirmative action policies. But just as certainly, universities tended to completely ignore the mismatch problem, and this was quite disturbing. The Supreme Court's decision to review the Fifth Circuit's holding in Fisher--and to thus reconsider the constitutionality of university racial preferences--increased the level of interest and anxiety about mismatch research.

Lawyer and journalist Stuart Taylor, Jr., had joined forces with me to write a broadly accessible book on the effects of racial preferences, called Mismatch, which appeared in October 2012. That, along with two briefs that Stuart and I wrote as amici curiae to the Court on Fisher, helped to elevate the mismatch hypothesis to a prominent place in the public discussion of Fisher. The New York Times, The Economist, the Wall Street Journal, and NPR's All Things Considered all ran prominent articles on mismatch, generally treating it as, at the very least, an idea to be reckoned with seriously. The general tone was well-captured by The New York Times' David Brooks, who wrote: “[A]ffirmative action programs ... perpetrated some noteworthy wrongs .... The evidence on this is hotly disputed, but Richard Sander and Stuart Taylor Jr. make a compelling case ....”

Yet at law school events during the 2012-2013 academic year, when I was invited to speak about any aspect of Fisher, a strangely repetitive pattern emerged. Regardless of whether the topic at hand was mismatch, or some entirely different part of the affirmative action issue, panel members who disliked my mismatch research would start to recite from a document known as the Empirical Scholars Brief. This document, they would suggest, was the definitive refutation of Richard Sander, the other “mismatch” researchers, and all that we were taken to represent. Often they would distribute copies of the Empirical Scholars Brief to the audience, like revivalists passing out the Gospel of St. James. But--and this was the oddest part--these panelists were never interested in engaging or debating any of the claims that were actually in the Empirical Scholars Brief (which I will sometimes, as shorthand, refer to as the “ESB”). One panelist, at an AALS panel in a large ballroom, disclaimed any intention of getting into the details. “I'm not a trained quantitative empiricist,” she said, “instead I'm compelled to rely on critiques by other empiricists.” Pretty much exactly the same thing happened at the Valparaiso symposium. Professor Nelson began our panel with a very thoughtful discussion of the “deference” issue--that is, when and to what degree the Supreme Court should defer to the educational judgment of universities in evaluating their diversity programs. Professor Sumi Cho followed with some rather discursive remarks on the importance of diversity. I then spoke about some of my empirical findings on university behavior--a sort of empirical comment on some of the same issues Professor Nelson had raised. When we finished, and the question and answer portion began, Professor Cho distributed a copy of the ESB to the audience, with the standard comment that the audience could better evaluate my comments if they knew what other social scientists thought of my work. With my time up, and on my remote monitor, I was not in a very good position to respond to and engage the ESB claims. I encouraged anyone in the audience to ask me to discuss any specific claim they could identify, but there were no takers. It felt to me like a completely non-substantive, ad hominem, and unfair attack.

It therefore seems appropriate to take the opportunity afforded by the written version of the symposium to provide the sort of thoughtful engagement that I would have liked to provide the live symposium audience. What follows is an assessment--though it may sound more like an expose--of the “Empirical Scholars Brief.” The thrust of my analysis is that the ESB is not just substantively wrong, but it is also a deeply dishonest document that relies on outright falsehoods and misleading claims to support an argument, which should be embarrassing to its signatories, and is entitled to no substantive weight in discussions of mismatch and affirmative action.

Richard Sander (UCLA), The Stylized Critique of Mismatch, 92 Tex. L. Rev. 1637 (2014):

Perhaps I’m biased, but I think the debate over “mismatch” in higher education has an importance beyond its immediate concern with the efficacy of large admissions preferences as a matter of college and university admissions policy. There are few areas, I think, where basic academic values of honesty, openness, academic freedom, and free inquiry are so much at stake. The Kidder–Onwuachi-Willig (KOW) review, published a few months ago in the Texas Law Review, inadvertently but rather cleanly raises some of these questions. In this Response, I will discuss the nature of the meta-debate on mismatch as well as the specifics in KOW’s review and, I hope, put both into a useful perspective. My goal is threefold: first, to rebut KOW’s main arguments, second, to illustrate how the KOW critique follows a stylized pattern of ideological attack, where the structure of the argument proceeds predictably regardless of the accuracy or falsehood of any particular assertion, and third, to suggest sources to consult, and questions to ask, that can help disinterested readers make up their own mind about the mismatch issue.

William C. Kidder (UC-Riverside) & Angela Onwuachi-Willig (Iowa), Still Hazy After All These Years: The Data and Theory Behind “Mismatch” (reviewing Richard Sander & Stuart Taylor, Jr., Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It (2012)):

In the context of reviewing the book "Mismatch" by Sander and Taylor, the authors provide a comprehensive review and synthesis of dozens of social science research studies regarding affirmative action, mismatch, graduation rates and labor market earnings. In addition, the authors look at the recent graduation rates of nearly two hundred thousand black and Latino students at one hundred U.S. research intensive universities (Table 1). The authors conclude that the social science research overall, and particularly the best peer-reviewed studies, do not support the mismatch hypothesis with respect to affirmative action and African American and Latino college graduation rates and earnings (Table 2). The authors find that Sander and Taylor's contrary claims are the result of cherry-picked data.

The authors next critically analyze Sander and Taylor's claim that California's ban on affirmative action brought about a "warming effect," i.e., a rise in the rates at which African Americans and Latinos applied to and accepted offers of admission from University of California (UC) campuses. The topic is relevant to the issue of "stigma," including Supreme Court Justice Clarence Thomas' judicial opinions discussing stigma and affirmative action. The authors conclude that the direct evidence on UC freshmen yield rates do not support the warming effect hypothesis, and Sander and Taylor's contrary claims are not consistent with other research and do not properly account for factors including (a) admitted candidates likelihood of choosing to enroll at private selective institutions with affirmative action instead of UC; (b) UC's anomalous price advantage in the years when affirmative action was first banned because its tuition dropped at the same time tuition at competitor institutions rose; (c) missing data; (d) inability to separately analyze African American and Latino candidates; and (e) disproportionate reliance on admittees in the bottom third of the pool, where there are pre/post affirmative action confounders such as the changed ratio of African American student-athletes. The authors show that Sander and Taylor (and Justice Thomas) rely on a theoretically impoverished and shallow account of "stigma" that is also not supported empirically. The authors provide a better, alternative test of the warming effect hypothesis by looking at 2008-12 campus racial climate survey data for twenty thousand African American and Latino undergraduates at UC campuses, University of Texas at Austin and other leading research universities (Figures 2A-2C). These survey results show that at the UC campuses where African Americans are only 2-4% of the student body, merely 34.5% of African Americans "agree" or "strongly agree" that they are respected on campus, compared to 81.8% of white students at these same schools. Results are more encouraging at research universities like UT Austin and UC Riverside that have higher "critical mass" and/or affirmative action, all of which calls into question the warming effect hypothesis.

The authors conclude that the flawed and one-sided nature of the arguments in the "Mismatch" book are also evident in the disproportionate focus on underrepresented minority students when Abigail Fisher -- the white plaintiff in the high-profile Fisher v. UT Austin case recently remanded by the Supreme Court -- had a relatively lower academic index score similar to many of those black and Latino students Sander and Taylor claim are being harmed by race-conscious affirmative action programs. Affirmative action programs at U.S. selective universities, the authors conclude, provide access to important leadership, educational and career opportunities that are important to America's future.

Legal Education, Scholarship | Permalink


I was non-controversial before it was controversial to be labeled controversial. #hipsterproblems

Posted by: Daniel | Nov 20, 2014 11:48:12 AM

Sander hasn’t realized that no one cares about his data. People have staked their careers on this topic (see above) and they aren’t just going to reverse course even if someone proves them wrong to a reasonable scientific certainty. He really needs to apply his talent for data analysis to a politically neutral topic before his career is over.

Finally, law school is now a bad idea for pretty much everyone outside the top 14 schools, which sort of renders his whole point moot.

Posted by: JM | Nov 20, 2014 11:20:47 AM


Are you suggesting that at the many law schools with median LSATs in the mid-high 140's or lower, and 25th percentile LSATs dipping into the 130's, that minority students occupy most or all of those slots? Because I've never seen any data to indicate that. Anyways, given how decidedly non-holistic law school admissions are across the board (LSAT and undergrad GPA dominate, no interviews at most institutions, no one cares if you played lacrosse or the violin, etc), I would assume that those students have the best scores of anyone that those law schools could convince to apply and enroll.

Posted by: Unemployed Northeastern | Nov 20, 2014 11:07:21 AM

Jason, it sounds like the word "controversial" is now controversial. You can't get more meta than that.

Posted by: AMT buff | Nov 20, 2014 10:28:27 AM

UN, the word "somewhere" does a lot of heavy lifting in your comment.

Posted by: Mike Petrik | Nov 20, 2014 10:03:54 AM

I fell asleep somewhere in the third paragraph. Anyways, with crashing admissions standards at most law schools these days, I wonder how relevant AA even is today. As long as you have a pulse and federal loan eligibility, you can get into some law school somewhere. AA is for selective admissions. Most law schools have moved into nearly-open admissions.

Posted by: Unemployed Northeastern | Nov 20, 2014 7:39:20 AM

I'm on my university's faculty senate, and this post reminds me of our last meeting. We were debating a motion to delete a reference to affirmative action as being "controversial" in one of our campus documents that was aimed at re-affirming our commitment to it. The reference to "controversy" was used in the report as a nod to critics of the practice (presumably, half of the state's population that is conservative), but also to set up my university's arguments as to why the practice was justified despite the controversy. At the meeting it became clear that the reference to it being "controversial" was viewed not just as insulting to certain groups, but also as simply untrue. A number of faculty senators stood up to argue that there simply was no "controversy" because everyone knew that affirmative action in higher education was undeniably a good thing. One brave soul (not me) attempted to argue that, in fact, there were "controversies" surrounding the issue, but he was outvoted, nearly unanimously, and the "controversial" language was struck from the report (which had already been separately approved and published some time in the past). Thus the issue is no longer controversial, by faculty senate legislation, at least on my campus. I get a sense that there was similar vibe at the conference that Sanders spoke at--amazement that anyone could be so benighted as to argue, on an empirical basis or otherwise, that something so obviously beneficent might in fact have some downsides.

Posted by: Jason Yackee | Nov 20, 2014 7:33:45 AM