How One Might Have Answered Justice Scalia’s Questions (About the Mismatch Theory) at Oral Argument in the Fisher Case

Posted in: Constitutional Law

By now most Verdict readers have probably heard about Justice Scalia’s provocative comments at last week’s oral argument in Fisher v. University of Texas, a case challenging UT’s affirmative action program in which race is used as a factor in admitting a small portion of the incoming freshman class. After UT’s lawyer argued that prohibiting the use of race as an admissions factor would cause the number of minority (and especially black) students admitted in the so-called holistic review admissions process to plummet, Justice Scalia remarked:

There are . . . those who contend that it does not benefit African Americans to . . . get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school . . .—a slower-track school, where they do well. One of . . . the briefs pointed out that . . . most of the black scientists in this country don’t come from schools like the University of Texas. . . . They come from lesser schools where they do not feel that they’re . . . being pushed ahead in . . . classes that are too . . . fast for them . . . . I’m just not impressed by the fact that . . . the University of Texas may have fewer [black students if its use of race is struck down]. Maybe it ought to have fewer. And maybe . . . when you take more [at UT], the number of blacks – really competent blacks – admitted to lesser schools turns out to be less. And . . . I don’t think it . . . stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible. . . .

It would not have been hard to predict that these comments would generate outrage. The remarks are, at the very least, worded such that reasonable observers—especially reasonable observers unfamiliar with the “mismatch theory” to which Justice Scalia was referring and which we discuss in detail below—might well read them as an expression of simple racism. In particular, the Justice’s use of the pejorative-sounding terms “slower-track” and “lesser schools,” his references to “classes that are too fast for them” and “really competent blacks,” and his comment that “maybe [UT] ought to have fewer [blacks],” taken together, might give rise to the impression that he sees African Americans as a group as intellectual inferiors who belong not at top colleges and universities but at separate, inferior schools. In a country where “separate but equal” was once the widespread, racist policy, these words have disturbing overtones. Judging from the response Justice Scalia’s comments have drawn, this is indeed how many understood them.

Mismatch 101—Basic Assertions

Justice Scalia’s musings were no doubt poorly worded. But, viewed in the most charitable light, they were an attempt to articulate an academic theory—known as mismatch theory—not a racist diatribe. Although mismatch theory has roots that go back many years, it gained widespread notoriety beginning in 2004 when law Professor Richard Sander published a law review article entitled “A Systematic Analysis of Affirmative Action at American Law Schools” that tried to exhaustively and empirically demonstrate that affirmative action harms those it is most intended to help by placing intended beneficiaries in academic environments where they are ill-prepared to succeed and—the theory goes—actually do not tend to succeed.

As one of us (Dean Amar) discussed in a series of articles (on which we draw in part here) published over the past decade, mismatch theory posits a “cascade” effect: as the most selective schools “snap up” members of underrepresented racial minority groups who otherwise would have ended up at somewhat less selective schools, that next group of schools (because they too engage in affirmative action) enrolls minority applicants who otherwise would have attended the next tier down the selectivity scale. And so forth.

This systematic cascade phenomenon is important, because when race is being used so weightily in schools across the whole spectrum, the result is that the minority race students who are admitted to each school under an affirmative action program are significantly less numerically qualified than are their white (or Asian) competitor students at that school, who were admitted outside the affirmative action plan.

In the law school setting, Sander argued that, because of the pronounced mismatch effect that extends across the whole range of law schools, black law students tend to suffer poor grades. According to the data Sander adduced and presented a decade ago, the median black law student’s GPA at the end of the first year of law school was near the 7th or 8th percentile of the class. Put another way, more than 50 percent of black law students were in the bottom tenth of their law school class (in terms of grades) at the end of the first year. (We don’t know whether this data has changed in the last decade.)

This poor academic performance in law school, Sander contended, in turn leads to a very poor bar passage rate. Sander argued that many blacks with poor law school grades would have had better grades—and would have ended up with a higher chance of passing the bar—if they had been at law schools where their incoming academic credentials were commensurate with their peers’. (Sander’s data suggested to him that black students at any law school who have the same law school grades as white students at that school pass the bar in the same percentages as the white students. In other words, blacks with good law school grades don’t fail the bar any more than whites with the same grades.) Again, the problem, according to Sander, has been that law schools have “mismatched” blacks in schools where they are unlikely to get good grades.

Why might minority students enjoy better outcomes—for instance, higher law school grades, higher bar-pass rates, and perhaps better, more lucrative legal careers—when they attend schools where they are admitted without the benefit of affirmative action? Mismatch theory is less developed on this point, but Sander and others may think that even very able students who are mismatched might become frustrated by the challenges they face and the grades they receive on account of a mismatch, and as a result may fail to develop their talents as fully as they would have had they been in institutions where they would fit comfortably in the mainstream of student skills and credentials. Moreover, students who get high grades also get the lion’s share of professorial advice and mentoring. Also, less selective schools might focus more on the basic skills needed to pass the bar than do more selective schools, which, according to Sander’s reasoning, is what many minority students need.

From all this, Sander argued that if race-based law school affirmative action were eliminated or reduced, the black bar passage rate would actually go up. By placing black students in environments where their grades would be higher—less selective law schools—the system could improve their overall bar pass rate. According to his calculations, in the absence of preferential admissions, the first-time pass rate for blacks would rise to 74 percent from the 45 percent he observed. That is, Sander argued the elimination of affirmative action might actually increase the absolute number of blacks who pass the bar and enter the ranks of the profession. In a similar vein, mismatch theorists also assert that, absent affirmative action, we would have more African American doctors, scientists and professors.

How Seriously to Take Mismatch Theory

We stress (and one of us, Dean Amar, has written over the years) that we do not believe the case for mismatch theory has been empirically made; there is scholarship going both ways, and much more scholarship to be done. One reason that the mismatch case against affirmative action is a hard one to make is the difficulty in measuring the intangible benefits of attending one of the country’s most selective institutions—such as access to powerful peer networks, the long-term prestige of a diploma, and the increased likelihood that one’s children will aspire to and be able to attain the highest levels of educational accomplishment. Even if it could be shown (and we don’t know whether it has) that folks with good but not great LSAT scores and college grades would have a better chance of passing the bar on the first attempt if they attended law school at the University of Connecticut rather than Yale or Harvard, there are many hard-to-quantify but undeniably meaningful benefits of having attended and graduated from Yale Law or Harvard Law (just ask the Clintons or President Obama).

But even though the theory has not been proven (to our minds), it is a legitimate topic for discussion and empirical inquiry. For two reasons it is unfortunate that Justice Scalia’s clumsy presentation of the theory helps reinforce the perception that it is little more than a racist ploy designed to eliminate affirmative action. First, putting aside Justice Scalia’s phraseology, adherents of the mismatch theory aren’t, as suggested above, necessarily driven by racist views. (In this regard, we note that some of the literature on mismatch seeks to establish a mismatch effect whenever a group of individuals—by virtue of race-based affirmative action, legacy admissions, geographical diversity programs, etc.—whose academic preparation and demonstrated skill levels are below an institution’s mainstream are nonetheless admitted and enrolled.) Mismatch proponents are driven by a range of motives (some laudable, others perhaps less so), and in any event their research should be evaluated and probed on its merits rather than rejected out of hand.

If Mismatch Theory is Plausible, What Follows?

Second (and more important for purposes of the big point we want to make today), even if the premise of mismatch theory—that affirmative action as practiced today disserves many “beneficiaries” by mismatching them with schools from which they are less likely to succeed—were proven true (and that is a big “if”), it would not necessarily follow that we should cut back on or eliminate affirmative action. Justice Scalia and the briefs advancing the mismatch theory suggest that if one believes in the mismatch effect, one must then end affirmative action, but they are wrong on this score.

For starters, even if students who attend more selective schools by virtue of affirmative action do currently tend to have more difficulty, and worse career outcomes, than they would if they attended less selective schools, it might be possible to remedy the problem with better academic support and related programs. Perhaps the flaw with affirmative action programs is not that less-prepared students are admitted, but that such students are not given the resources we might expect individuals with below-average levels of preparation and demonstrated skill to need. In this regard, it might also be of help to allow such students to take a lighter course load over a longer period of time to acclimate to an environment of stiffer competition.

Moreover, even if the mismatch effect (i.e., the high costs of mismatch) were empirically plausible as a general matter, why wouldn’t the proper remedy simply be to provide full disclosure about the effects of affirmative action to minority applicants, letting each admittee decide for herself whether she thinks she can buck the statistical trends mismatch theorists try to establish? (Even mismatch believers concede that they are trying to make an aggregate case only, and that individuals don’t always conform to the norm.)

If this system of disclosure were followed, students could take their own individual experiences into account. An admittee whose strong high school performance was not predicted by her standardized test scores and middle school grades might decide that, once again, she will “overachieve” in college—and enter the most selective school that accepts her. In contrast, an admittee who is highly sensitive to, and demoralized by, the risk of getting poor grades might realize she would prefer being a student with (a higher chance of) a better grade point average at a less-selective school. An admittee who knows his charm and public speaking finesse will help him prevail in moot court may not worry as much about law school grades; but a shy admittee who knows he does not interview especially well may want to go to a law school where his grades will likely be better. And so on.

Providing more support services and fuller disclosure—rather than ending (or reducing) the affirmative action programs themselves—makes particular sense if one believes (as a majority of the Court has said it believes) that the advantages of affirmative action transcend the benefits to the particular students who are admitted by virtue of affirmative action. If one widens the focus from the admitted minority students themselves to society at large, the benefits of affirmative action persist even if some number of students who are admitted under such programs face challenges. When minority students are present on campus and in the classroom, the educational experience for all students (not just those of color) is enhanced.

Indeed, under the current constitutional rubric of strict scrutiny, the compelling interest the Court has recognized that justifies affirmative action is not the benefit obtained by minority students in particular (although many of us do find the remedial justification to be compelling), but rather the enhancement of the educational experience for all students that comes from learning in a diverse environment. To be sure, many backers of affirmative action would be less supportive of these programs if minority students, in the main, were materially disadvantaged by them; fewer people would support diversity if it necessarily came at the expense of minority students. But against a backdrop in which the data surrounding the mismatch effect is hotly contested at the very least, full disclosure (combined with enhanced academic support services) would seem to undercut the extent to which the mismatch theory can by itself determine the constitutional fate of affirmative action.

Beyond the unfortunate wording he used, the strongest criticism of Justice Scalia’s invocation of mismatch theory may be that he seems to assume the theory, if plausible, compels the abolition of affirmative action. In fact, mismatch theory, even if there is something to it, might just as readily support efforts to improve affirmative action programs. This is a worthwhile discussion to have—a discussion, unfortunately, not the one most people seem to be having.

  • Joseph A. McNeill

    I remember when the Lafayette College Faculty debated the merits of Affirmative Action in admissions in the early 1970s: clearly some incoming students would lack necessary skills in English, Grammar, Mathematics, History and Science (among other disciplines) usually required of admitted students. I stated that the College, if it admitted these lesser-skilled students, had the obligation of providing them remedial resources sufficient for them to graduate. Otherwise the College would have exceedingly frustrated students who, despite their best efforts, simply would fall sequentially behind their classmates, not because they were intellectually dim, but because they simply could not keep up with class activities without effective tutorial and other remedial recourses. This would apply at every level of academic achievement, undergraduate through doctoral programs.

  • Joe Paulson

    I don’t think the “racism” critics of Scalia lack a case but sure — focus on the merits. “Racist!” leads to more smoke than light.

  • Mac

    I had understood for years that the jurisprudence in this area was that affirmative action was improper unless ordered as redress for proven racial discrimination. However, what is to prevent an outfit such as the University of Texas from saying to itself that it acknowledges past discrimination and chooses to redress it without the NAACP suing it in federal court?

  • Mark Huffman

    I’m having a hard time understanding how a “lighter course load” would be anything other than stigmatizing and an impetus for minority students to self-segregate and isolate. Things may have changed since I was in college in the 1980’s and law school in the 1990’s, but I feel like no one — majority students like myself or minority students — received any ascertainable benefit at all from a diverse student body. Many and maybe most of the minority students kept to themselves and had very little interaction with the college community generally, either socially or in the classroom. With some notable exceptions it was like they weren’t there at all.

  • Howell

    Any program (all the rage in the USA) that literally requires one race to obtain permission from another race to “do something”, to obtain something that is accorded as a God given right…and access to,,,,,is wrong. Blacks do not need favours….they need, like everyone else, a good education. While authors like Mr. Amar devote their skills to dissecting “mismatach theory”, which in and off itself is racist, he fails to discuss the fact that whenever the word “racism” surfaces the conversation is automatically tuned into “What are Whites now being forced to accord Blacks”. This is (for want of a better word) demeaning and humiliating.The constitution has already accorded these rights to ALL… The U.S. has the Bills of Rights! Blacks do not need Affirmative Action…Fair Housing….Fair this and fair that. They need to insist upon their rights under the constitution. No more “slap stick” legislation! Discrimination should be a federal offence…a felony! The American is a very fickle creature! He will rant and rave about his 2nd amendment rights to bear arms….but soon forgets the right of “equality for all”. Who cares if Scalia utters racists overtones….so does the whole nation in some form shape or manner. Even the discussion of the mismatch theory would not be in the least relevant to the “cost of beans in China” if racism was not a central part of American society. And…it will be another century before this plague will be eradicated.