Bench Memos

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Silly Fisher-Related NYT Article Today


The New York Times has a front-page, above-the-fold article today titled ”Affirmative Action Ruling Near, Blacks’ Progress Remains Slow.” As the title suggests, the message of the story is: It would be very bad if the Supreme Court were to rule in Fisher v. University of Texas against the use of racial preferences in student admissions, because African Americans remain underrepresented in many professional occupations (dentists, physicians, architects, lawyers) and among corporate executives.

This is a dubious theme for several reasons. First, the only legal justification for racial preferences in university admissions is the purported ”educational benefits” of a “diverse” student body; correcting society-wide racial disparities is not a justification the Court has ever accepted or been urged to accept in the Fisher case. Second, the article ignores the mismatch effect, the result of which is that racial preferences actually diminish the number of African American graduates in, especially, particular professions and the more rigorous disciplines, as well as their likelihood for success in them. Richard Sander, the coauthor with Stuart Taylor of the influential book Mismatch, has also devoted a law-review article to the problem at law firms in particular — which happen to be the focus of the Times article; alas it does not mention Professor Sander’s research. (One of the many bad side effects of racial preferences is the way their use stigmatizes all members of the group that receives the preference; the Times story quotes a young black lawyer complaining it was commonly assumed he “was not as qualified as white colleagues” — an assumption that is directly attributable to the use of racial preferences that the Times nonetheless supports.) Third, any serious discussion of racial disparities in 2013 must acknowledge the fact that more than seven out of ten African Americans now are born out of wedlock, with predictable and sad results in education, economics, crime — you name it. The Times story makes no mention of it.

Two other errors: The Times story suggests that the various state ballot initiatives banning racial preferences apply to the private sector (they don’t) and implies that the “diversity” justification the courts have accepted for student admissions is also available in private-sector employment (it isn’t).


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