Affirmative Action and Corruption

Unlike a lot of conservatives, I do not believe that affirmative action is unconstitutional.  Those who do claim that it violates the Equal Protection Clause of the 14th Amendment by discriminating against persons in "non-suspect classes," i.e., White or male.  Though affirmative action clearly does the latter, it does not target individuals as such, nor is it designed to keep one class of citizens separate or deny any such class equal status.  Affirmative action is clearly designed to be remedial for past injustice, and to advance the prospects of groups of Americans whose prospect seem otherwise more dim than those of the majority.  Since I am a judicial minimalist, I would allow legislatures and other state institutions to make judgment calls on this matter rather than turn it over to the courts. 

That said, I think affirmative action is bad policy.  Decades of preferential hiring and university admissions have not produced the gains hoped for, and there is ample evidence that such policies do harm rather than good.  But there is something worse.  Affirmative action virtually requires institutions that practice it to lie about what they are doing.  That is clearly a form of corruption.  Both ill-effects of race-based preferences are on display in a current struggle between the U.S. Civil Rights Commission and the California Bar.  From Fox News:

 

"Currently only about one in three African-Americans who goes to an American law school passes the bar on the first attempt and a majority never become lawyers at all," says UCLA law professor Richard Sander.

In an article published in the Stanford Law Review, Sander and his research team concluded several thousand would-be black lawyers either dropped out of law school or failed to pass the bar because of affirmative action.  Known as the ‘mismatch’ effect, Sander claims students who are unprepared and whose academic credentials are below the median are admitted to law schools they are unqualified to attend. If those same students instead were to go to less elite or competitive schools, more would graduate, pass the bar and become lawyers.

That goes to the harmful effects.  If you raise the standards for a particular class of persons to be admitted to a competitive law school or medical school, you will increase such measures of success as grade points and graduation for that group.  That is what happens, for several reasons, to many Asian American groups who have to do better than their non-minority counterparts to get in.  If you lower the standards for some class, you will achieve the opposite result.  For many affirmative action admittees, this is a personal tragedy.  A student who is unprepared for Harvard Law School, and flunks out, will frequently give up on law.  Had he attended an institution better designed for his academic preparation, he would have left with a law degree and a promising future.

All that has been seen across the board in higher education.  If you had enough data, I suspect you would see that the differences in preparation and performance of Asian American students, Jewish students, Irish students, and African American students, and Hispanic students are no greater than those between different neighborhoods of origin among many homogeneously White student bodies.  Students who come from out of town may be much better prepared academically than students from in town.  The differences have everything to do with educational cultural. 

But you can't get the key data, because affirmative action virtually forces institutions of higher learning to lie about what they are doing.  Gale Heriot, a law professor and member of the US Commission on Civil Rights, wants the California State Bar to turn over its data to Professor Sander.  No chance.   

Recently, a California bar committee voted 5-3 to turn down Sander’s request to use bar data collected over the last three decades on student test scores, law school admissions, academic performance and bar passage rates.  The data, considered a gold standard by affirmative action researchers, is considered key to determine if racial preferences work.

"There is no answer but to give him the information," says black civil rights attorney Leo Terrell. "What is the state bar afraid of? We need to know."

The California Bar has its excuses. 

"The release (bar exam) applicants sign does not allow us to release the information to third parties," Whitnie Henderson told FOX News. "Looking at all the information we just decided it was not something that fit within the committee’s purview."

The real reason they aren't releasing the data, of course, is that they know it would confirm Professor Sander's thesis, and they just can't handle that truth. 

The universities cling to affirmative action as an article of faith. They are immune, if not allergic, to any counter evidence.  This is exactly the opposite of what science is all about.  Affirmative action hurts the people it is intended to help.  It corrupts the institutions that practice it.