UCLA Law Review, June 1999 (Vol. 46, #5), pp. 1583-1632
The debate over race-conscious admissions to selective colleges and universities has taken a new turn. The emotionally fraught moral argument continues, but facts—long largely hidden from public view—are now in the mix.
The much-celebrated work by William G. Bowen and Derek Bok, The Shape of the River, adds to our store of data and is thus a welcome addition to the literature. But in this Book Review, Stephan and Abigail Thernstrom conclude that the evidence upon which this brief for racial preferences relies does not withstand close scrutiny.
Bowen and Bok contend that the weight given to race in the admissions process at highly selective colleges and universities is slight, and that preferentially admitted students do well both in school and beyond. Their own numbers, however, paint quite a different picture, the Thernstroms find. Preferences are truly preferential, and black students admitted under racial double standards do not fare well academically. Other data on law and medical schools tell much the same story: Heavy racial preferences are coupled with high failure rates relative to those of whites and Asians.
Race-conscious admissions to elite schools have, according to Bowen and Bok, created the backbone of the black and Hispanic middle class, but their book contains data on neither Hispanics nor Asians, a serious omission. More importantly, the Thernstroms argue that admissions officers at elite institutions do not in general determine the socioeconomic fabric of African-American life. Throughout, Bowen and Bok’s argument is marred by ahistorical reasoning, lapses in logic, methodological flaws, missing information, and missed opportunities to gather or further interpret important data.
Bowen and Bok are militant advocates of “diversity,” and yet they provide no definition of the term and thus no standard against which diversity policies can be assessed. Moreover, they fail to engage the serious moral arguments of those who oppose all race-conscious policies. The Thernstroms conclude that critics of preferential policies are right to believe that sorting Americans into arbitrary racial categories perpetuates terrible habits of mind deeply at odds with the nation’s unrealized egalitarian dream.
Since the late 1960s, leading American colleges and universities have used racial and ethnic criteria to select a significant fraction of their entering classes. From the beginning, critics attacked such policies as morally wrong and constitutionally suspect. Until fairly recently, however, little was known about how the process actually worked. Exactly how much weight was given to racial and ethnic considerations in admissions decisions?
The official line was “not much.” Race was just one factor among many. But no data were ever provided to establish either how substantial that factor was, or what happened to preferentially admitted minority students during and after college. Although higher education officials aggressively defended their policies, they were never willing to release the pertinent facts and stand by them. Secrecy suggesting a lack of moral confidence enveloped rhetoric couched in high moral tones.
In 1991, a corner of the veil was lifted when Timothy Maguire stumbled on the truth at the Georgetown University Law Center, where he was a student. Working part time in the registrar’s office, he found that the college grades and LSAT scores of blacks admitted to Georgetown were dramatically lower than those of their white peers. Race was not just one of many possible “plus” factors being considered by the admissions committee; it was the only consideration that could have explained the acceptance of most black students.1
When Maguire went public with his findings, Georgetown’s defenders mounted a fierce counterattack. In a Washington Post Op-Ed piece, a group of Georgetown law graduates charged Maguire with providing only “[i]ncomplete and distorted information,” perpetuating the “intellectually dishonest myth” that black students are “less qualified than their white counterparts to compete in school.”2 Maguire was in no position to study the matter more systematically, the school’s administrators were unwilling to release any pertinent data, and the matter rested there.
The ability to keep the files under lock and key began to come to an end, however, with the Hopwood3 litigation that resulted in the 1996 finding by the Fifth Circuit Court of Appeals that the University of Texas School of Law (UT) had engaged in racial discrimination against whites; with the fight in California that ended in the passage of Proposition 209,4 forbidding racial preferences in the public sector, including higher education; with a similar initiative in the state of Washington;5 and with a number of freedom of information lawsuits. Tantalizing fragments of evidence have trickled out, all suggesting that the weight given to racial and ethnic considerations was in fact extremely substantial, amounting in most cases to a flagrant double standard.6
Thus, the Hopwood case, for example, revealed that white students accepted to UT had been “overwhelmingly drawn from the very top of the national pool,” but that to obtain more than a handful of African Americans, the school had been forced to reach down “well into the bottom half of the national pool.”7 Preference advocates had always claimed that minority candidates with weak academic qualifications nevertheless performed well at UT. But the effect of using such “radically different admission standards,” according to the associate dean, was that “few of our Black students have been able to finish above the bottom quarter or third of the class in terms of law school grades.”8 Worse yet, while some 90% of UT’s “non-minority students” passed the bar examination on their first try, the figure for blacks was “consistently under 50%.”9 Furthermore, half of the minority graduates who failed the bar exam flunked “again upon retaking.”10 Many preferentially admitted students who had devoted three years to studying the law, often going deeply in debt in order to do so, never developed the skills necessary to qualify for their chosen profession.
In the debate over preferences in higher education, opponents remained greatly disadvantaged as long as they were denied access to the facts. But once critics began to accumulate evidence that preferences did not work as advertised, supporters needed empirical information of their own. The gathering of such data was precisely the aim of The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions, by William G. Bowen and Derek Bok.11 With preferences on trial, Bowen and Bok have written a brief on their behalf—designed not only to establish the facts, but to lift the flagging spirits of preference advocates in the post-Hopwood, post–Proposition 209 era as well.
That the mood of preference advocates had indeed become dispirited was evident in the sigh of relief that greeted the book’s publication. Although it is written in grey bureaucratic prose and is crammed with 147 tables and graphs, it has been treated as a major news event. Editorial writers and columnists in leading newspapers and magazines, as well as CBS, CNN, and NPR have hailed it with uncritical enthusiasm.12 The New York Review of Books printed a lengthy two-part review by Ronald Dworkin that read like a publisher’s press release.13 The New York Times was not content with simply running a full-page news story and reprinting excerpts from the work itself. It also ringingly endorsed its conclusions in an editorial that claimed the study “provides striking confirmation of the success of affirmative action in opening opportunities and creating a whole generation of black professionals.”14
Bowen and Bok do provide extensive new statistical information about the admissions preferences given to blacks in elite schools, their educational performance, and their subsequent career patterns.15 Their findings do significantly advance the debate. Alas, however, the book is not an even-handed scholarly study. An assessment of the evidence upon which its authors base their main conclusions reveals many critical flaws.