Response to Comments on Affirmative Action--Posner

The principal criticism of my posting is that "merit," understood as doing well on exams (especially timed exams), is too narrow a basis for admission to college or law school and that affirmative action is a way of rectifying the mistakes caused by the overemphasis on that too-narrow criterion. My view is that reference to "merit" and "meritocracy" is misleading. A person is not "better" because he's a better exam-taker; for that matter, he's not "better," more "meritorious," because he has a higher IQ than someone else. The issue regarding standardized testing is whether it's a good predictor of college or graduate school performance. If it is, then people who do badly on the test, but are admitted anyway because of affirmative action (or because they're good athletes), are going to do poorly in college or graduate school and cluster at the bottom of the class. Now maybe though they cluster at the bottom of the class, they do well professionally because grades are not a good predictor of performance in the "real world." So the argument would be that blacks from poor families do badly on the SAT and in college and law school but nevertheless do well professionally, because SATs and LSATs and the rest of the educational testing apparatus are poor predictors of professional success. Now it would be odd if race were the explanatory variable here. That is, if you took two people otherwise identical in upbringing, parents' occupations, etc., but one happpened to be white and one black, on what theory would standardized tests underpredict the black's professional success relative to the white's? Presumably the relevant variable in explaining black-white test differences would be not race as such but such factors as parents' education, household income, early schooling, etc.--factors that might well be correlated with race, but that would not be identical with race. If parental income or some other such variable is thought to cause students who have in fact great professional talent and prospects to underperform in standard tests, then that would be an argument not for affirmative action on the basis of race, sex, ethnicity, etc., but for affirmative action on the basis of parental income or the other nonracial factor that was causing the difference in test scores. This is resisted because the colleges don't care about students from poor families, etc.; they just want a certain percentage of blacks. There is a special factor at work in law, the profession with which I'm most familiar, that casts particular doubt on the wisdom of racial affirmative action. That is the fact that to become a practicing lawyer, you have to pass the bar exam--another standardized timed test but one for which you can't substitute a take-home exam or a term paper. The black pass rate on the bar exam is shockingly low--something like 15 percent, compared to more than 60 percent for nonblack exam takers. I cannot see the sense of bending law school admissions standards in favor of applicants who are unlikely to be able to enter the profession after spending $100,000 or more for three years of law school tuition. A number of comments mentioned "diversity" as a valid ground for affirmative action in admissions to college and law school. I agree that one benefit of college education is meeting a more diverse group of young people than one might have encountered growing up in one's particular community, which might be a lily-white suburb. But the relevant diversity is not in the color of one's skin, but in attributes which, to repeat, while they may be correlated with race, are not identical to it. There are black people who really aren't different from white people, and it is unclear how their presence increases the diversity of a student body. Several comments from the right side of the political spectrum of our readership accused me of having a double standard--favoring or at least being willing to tolerate some discrimination against whites (i.e., some affirmative action) but not willing to tolerate discrimination against blacks. I plead guilty to the double standard. I do not think discrimination against blacks by whites, and discrimination against whites by whites, are symmetrical phenomena. A dominant group may discriminate some against its own members--that's what affirmative action is--but it's not going to go too far, whereas discrimination by the majority against a minority is likely to be far worse and more injurious. I am always interested and pleased when the comments go in unexpected directions, focusing on what I had thought distinctly peripheral aspects of my posting. I had said that I thought a theatrical producer should be permitted to refuse to hire a white actor to play Othello, or a black actress to play Desdemona. Several comments pointed out that there have been theatrical productions in which a white played a black, a woman a man, etc., and they noted that in Shakespeare's time, because women weren't permitted to appear on stage at all, female roles were played by adolescent boys--and since there were virtually no blacks in England and almost certainly no black actors, Othello was played by a white. So a white male was playing opposite another white male and why shouldn't that be permitted today? Well certainly it should be permitted, but the question is whether the producer should be deprived of choice in the matter. It is further true, as one comment points out, that while sex can be a "bona fide occupational qualification" under federal antidiscrimination law--and so a producer can insist that Desdemona be played by a woman, whatever Shakespeare might have thought of that--there is no BFOQ for race. I consider this rule of law mistaken. It seems to me that, at least if one is speaking of producers in the private sector, "discrimination" in the form of matching an actor's race, etc. to that of the character he or she is playing should be permitted. The impact on vocational opportunities for members of racial and other minorities is likely to be small. Of course there are not as many black characters in drama as there are white ones, but then there are not as many blacks in this country as there are whites. And, on the other side, matching the physical appearance of the actor with that of the character he's playing is important to an audience's understanding and enjoyment of a play. In my view, that benefit, together with the principle that producers and other creative persons should have maximum freedom from government restrictions in deciding what to present to their audience, outweighs the cost to those minority actors who may occasionally lose an opportunity to play someone of a different race. Indeed, it seems to me that freedom of expression requires no less.

Comments

[Palooka]

"A dominant group may discriminate some against its own members--that's what affirmative action is--but it's not going to go too far, whereas discrimination by the majority against a minority is likely to be far worse and more injurious."

First, it's probably more accurate to say a minority of the "dominant" group, coupled to strong majorities of the preferenced groups, combine to create an effective majority. It really isn't the case that the "dominant" group is deciding these issues from its own membership. Now, hypotheticall, can a minority of whites deny the majority of whites their right to equal protection? Posner seems to think so.

[Avi Katz]

What you do not address is the overuse of timed standardized tests. I've seen law schools admit students with high LSAT scores who come from poor undergraduate institutions and reject students with great prior academics and mediocre LSAT scores. Does this not infringe on the natural rights of individuals who are either (A) hard workers (and have demonstrated this by their past academic achievements), (B) deep thinkers who do not reach conclusions as quickly as others, or (C) "out of the box" original thinkers whose abilities cannot be determined by a "one size fits all" test. These individuals are being discriminated against as much as minority groups, to the detriment of our society as a whole. I feel standardized tests should be broadened and their focus should be to do nothing more than ascertain a minimum standard to account for quality differences in previous schooling. We should invest more money in the admissions process to ensure that the individuals who will benefit society most by graduating are admitted, instead of taking the cheapest route of depending on a single test.

[ziemer]

avi katz, it seems to me that your prescription for improving law school admissions are a recipe for decreasing diversity.

the student with a high LSAT from what you consider a "poor undergraduate institution" is likely to be an extremely smart individual who simply doesn't have the money and/or family connections to get into an elite school.

personally, i don't think there's such a thing as a poor undergraduate institution, only poor undergraduate students. you get out of college what you put into it, whether its the university of chicago or a state satellite college.

also, given the makeup of university faculties, abandoning lsats for who is likely to benefit society would likely just be an insidious basis for throwing the applications of college republicans in the garbage, and filling the school with radical environmentalists/feminists/etc.

i think a student body chosen on your standards would be the most elitist and homogenous imaginable.

[David]

Posner says, "The black pass rate on the bar exam is shockingly low--something like 15 percent, compared to more than 60 percent for nonblack exam takers."

Is this really true? I'm dubious. Where did this statistic come from?

Also, the statistic that matters is the pass rate for first time takers - we should make sure that we are looking at THAT statistic. Repeat takers usually fail. I have a hard time believing the 15 percent figure is the relevant statistic.

[Bill Korner]

I could not possibly find anything to disagree with in Posner's point that race SHOULD NOT be correlated with anything significant. Ironically however, it does at least seem to be correlated with rates of bar passing.

Are we now supposed to ask if bar passing is as irrelevant to predicting lawyering capability as LSAT scores? Yep. But there are no answers to be found there for obvious reasons.

And then... what good is being able to lawyer well? That question is answerable in principle, as is the question: What good is being an excellent hit man.

[Palooka]

Sander's recent research states that the black bar passage rate is 45%, while another 12% pass on a second attempt. That is still considerably lower than passage rates for non-blacks, but nothing close to 15%.

http://volokh.com/posts/1100293519.shtml

[Wes]

I cannot see the sense of bending law school admissions standards in favor of applicants who are unlikely to be able to enter the profession after spending $100,000 or more for three years of law school tuition.So much for free market capitalism. I'm not a fan of affirmative action but, more generally, if someone wants an education and they have the money to pay for it then let them have it. If it turns out later that their money was wasted, then that's their problem.Criteria for scholarships could justifiably be much more restrictive but, when it comes to admissions, if someone would rather spend $100,000 on learning than on a sports car they should be allowed to do that.Now, a sports car manufacturer could decide to only sell its cars to attractive people as a marketing technique for improving the image of its cars and a university could only admit smart students as a marketing technique for improving the image of its education and that would be OK (but not necessarily well advised).On the other hand, it goes against the basic principles of free market capitalism for the seller to be deciding whether it is in the buyers best interest to buy the product. That is not to say, however, that the seller does not have an obligation to fully inform the buyer of risks associated with its product.

[Maria]

Affirmative action, at least in my understanding of it, is all about giving access. So, to use your example, an African-American who spends $100K on law school tuition but can't pass the bar still ends up with a law degree, something that can be useful in many other professions. Morever, his experiences in law school and with the bar give us all perspective in helping along the next generation of (possibly non-white) students.

Professors, I'm sure you recognize that the effects of racism are subtle, cumulative, and demoralizing. Would I be deemed competent solely on the basis of my writing? Likely so, but then if you were to see me in person, you might not think the same. How much does appearance (i.e., race) factor into perceptions of competence? Sadly, I would have to say it counts a lot, and affirmative action programs are still one of the best ways to prevent the nuances of discrimination from corroding the (not necessarily perfect) meritocrary that is university admissions.

[Anonymous]

Wes, the crucial distinction here is that Posner is arguing against misguided well intentioned affirmative action practices that mislead students into thinking they are qualified or smart enough to pass the bar when they aren't.

Its because the selected pool he is talking about is not going through regular admissions but an artificial 'socially concious' one.

[Taylor Jaworski]

Wes,

The picture you paint of Judge Posner's response as somehow not representing principles of free market capitalism seems disingenuous. It certainly violates "basic principles of free market capitalism for the seller to be deciding whether it is in the buyers best interest to buy the product." But your comment does not take in to account the fact that while this may be a necessity in the relationship between agents who are buyers and sellers only, the relationship between a university and potential student (or a business and a potential promotee) is different and somewhat more complicated.

The only qualification for being able to buy a sports car is that you can afford it, but when it comes to admission to college or graduate school, or promotions in business, I would hope that the ability to afford these things (or the willingness to bribe to get them, as the case may be) is not the only qualificaiton. That there is in fact some aptitude for learning or business required before acceptance or promotion letters are handed out.

[Anonymous]

Maria, whatever the quality of your writing tells us, admissions practices dont' require photographs. Thus I fail to see your point on how it would pollute a 'meritocratic' admissions system.
Furthermore, I wonder how well JDs do in entering other fields when they a. fail to pass the bar and b. certianly achieved terrible grades in law school.

$100k debt however is a sure crippling effect.

Compound this with popular negative assumptions made in the marktetplace about AA admits to prestigious schools being far less intelligent or qualified, and you have people being left off worse because of these socially responsible policies.

[Wes]

Responding to various responses:...mislead students into thinking they are qualified or smart enough to pass the bar when they aren't.So make the students sign a waiver acknowledging that in the law school's judgement they will not be able to pass the bar even though they have been admitted. But let the students decide for themselves whether to take that risk....the relationship between a university and potential student (or a business and a potential promotee) is different and somewhat more complicated. The only qualification for being able to buy a sports car is that you can afford it,...Regardless of whether it is education or sports cars, the seller should refuse a sale when it is not in the seller's best interest. The question is whether the seller should refuse a sale when, in the seller's judgement, it is not in the buyer's best interest.It would be OK for a law school, as a marketing strategy, to preferentially admit students it judged to have the best chance of passing the bar because the resulting statistics would make it look like the law school was providing a good education. The question is whether a law school should be trying to decide on a student's behalf whether it is the student's best interest to go to law school....That there is in fact some aptitude for learning or business required before acceptance or promotion letters are handed out.In addition to providing education services, universities also provide evaluation services. It is not clear whether the admission process, itself, should be viewed as part of the university's evaluation services. My answer is "no", that a university should be allowed to admit whoever it wants and that only the final degree (and letters of recommendation) should be considered to be part of the university's evaluation service. I recognize that in practice this is not entirely the case and, in my opinion, this is actually quite stifling to universities' purpose of providing education.

[Bob]

As a union lawyer, I'm glad to agree with Judge Posner that it would be better to have affirmative action based on class ("parental income") rather than race. A meritocracy should provide equal opportunity for all. It would unite white and minority applicants in that old American idea that despite what background you started from, this society allows those who study and work hard to achieve their dreams. Also, given the lower economic status of minorities generally in this society, they would still benefit from such a system without the negative stigma that minority students admitted to colleges or professional schools only got admitted because of their race. It's an idea that the Democratic Party should champion as a way of uniting working class minority and non-minority households.

[Jane Thirnbough]

MARIA: How much does appearance (i.e., race) factor into perceptions of competence?

Whether you realize it or not, that is not an argument in favor of affirmative action. It is an argument in favor of using exclusively unweighted grade-point average and standardized test scores. No mention of the person's race (or gender or religious affiliation or sexual orientation for that matter) can leak through "blind" tests and grades (assuming that high-school teachers use objective testing methods as well). On the other hand, such subjectively-valued (or de-valued) data can be larded into essays, resumes, and writing samples, e.g., "I worked for the Gay Men's Crisis last year through a pilot program at the Presbyterian church, right next-door to my immigrant grandmother's tenement in Chinatown. I have three kids and had just adjusted to my amputation, so finding time to hobble over and volunteer was difficult."

And I find bizarre that, according to you, race = appearance. That is precisely the notion of race Posner seems to have rejected as irrelevant to this discussion of affirmative action. The correlation between bar passage rates and being black exists whether or not an aesthetic distinction is made between the black population and others. Why you would presume that the aesthetic distinction necessarily attaches to the concept of race is quite telling. Even Strom Thurmond, in his heyday as a racist rabblerouser, found black women aesthetically-appealing. Just ask the maid who bore his illegitimate child.

In the adumbration of your argument, Maria, you might want to avoid "projecting".

[WaitingForGoogle]

BOB: "Also, given the lower economic status of minorities generally in this society, they would still benefit from such a system without the negative stigma that minority students admitted to colleges or professional schools only got admitted because of their race."

Except that discriminates against black applicants who are not poor and who are otherwise identical to white applicants. Why would we discriminate against hardworking, smart, middleclass black people? That sounds like the most perverse kind of "reverse discrimination" of all!

[TheWinfieldEffect]

MARIA: How much does appearance (i.e., race) factor into perceptions of competence?

I am not a sociologist, but I suspect that Maria's causal chain is dead wrong. Instead of positing that blacks are funny-looking and that causes whites to discriminate against them, I would suspect that perceptions of social status influence perceptions of appearance, which is the other way around. Just for example, there are Midwesterners who believe Jews have horns, not because they have seen Jews and hate them for their horns, but because they have heard about how evil Jews are before having met any and have fantasized about how hideous-looking such evil creatures must be.

[Bob]

How is it reverse discrimination? Do Colin Powell and Donovon McNabb's kids really need affirmative action to escape from the lingering vestiges of slavery? Doesn't the current systems discriminate against economically disadvantaged inner city or rural African-American kids when it fills the affirmative action slots with the sons and daughters of wealthy African American professional and business people? What is the purpose? Do those kids really need a hand up? Why should they recieve a preference? Isn't it better to sanction a non-racially based system that provides educational opportunity to all the truly disadvantaged in our increasingly economically stratified society?

[Jane Thirnbough]

Bob: "Do Colin Powell and Donovon McNabb's kids really need affirmative action to escape from the lingering vestiges of slavery?"

Is "need" or "deserve" the relevant analysis? If you steal $5 from me, but I happen to win the lottery tomorrow, I don't need the $5, but you still owe me for your thievery.

[LARRY]

Jane Thimnbough's statement above is a good example of how poisonous AA is. It's bad enough in that is creates unfairness and can slow down progress for those it is supposed to help, and that those whow argue for it can't even publicly state what they are doing or they know they would be opposed. No, that's not enough. As far as JT is concerned, we need whole classes of people who should feel not that they can and should compete with others on an even level, but that they are "owed" something. It doesn't matter what position they are in, how little they work, how poorly they perform, or, for that matter, how well they perform--the world owes them something. I can't think of a better recipe for ongoing disaster.

[Jane Thirnbough]

"It doesn't matter what position they are in, how little they work, how poorly they perform, or, for that matter, how well they perform--the world owes them something. I can't think of a better recipe for ongoing disaster."

How about genocide?

[KJ]

Wes,

Most law schools aren't for profit. The one's that are do take anyone willing to pay.

Most restrict admissions to enhance their own reputation. That is their marketing strategy. It isn't that they are doing what is best (in their view) for the student. They are doing what is best for the university. Selling spots in the class is also not desireable for most institutions. Such spots are scarece products - most can't accept every person who wants in and can pay at current staffing and structure levels. So the school wants to produce bar exam passers (their graduation pass rate is typically public information) - not merely people who paid for an education. That will enhance reputation, which in turn enhances tuition rates and falculty quality.

In other words, the free market principles are working just fine.

[Anonymous]

I am fairly young. I grew up thinking that blacks were equal to whites in all respects, because that was what I was told. I believed that racism and discrimination had no basis but the original cultural superiority of Europeans over Africans.

The older I get, however, the more I learn that this is not true. The highly intelligent black person is, as far as I'm concerned, a rare find. I'm not a "racist", but experience has shown me that black people are less intelligent, less educated, and less able to learn than whites or asians. How long must I deny my experience in order to satisfy a utopian mental model? Isn't equality of races the phlogiston of our age?

If so, in time, experience will show us all that natural forces have caused evolution to take slightly different paths in the different races of humanity, and thereby caused some races to be more intelligent than others, and some to be more athletic, etc.

Maybe someday we'll be able to accept that our society may attempt to provide equal initial opportunity for all, but in the end, some races may be superior in some respects to other races.

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