As some readers will recall, a little more than seven years ago I published an analysis of law school affirmative action in the Stanford Law Review. The article was the first to present detailed data on the operation and effects of racial preferences in law schools (focusing on blacks).
I also laid out evidence suggesting that large preferences seemed to be worsening black outcomes. I argued that this was plausibly due to a “mismatch effect”; students receiving large preferences (for whatever reason) were likely to find themselves in academic environments where they had to struggle just to keep up; professor instruction would typically be aimed at the “median” student, so students with weaker academic preparation would tend to fall behind, and, even if they did not become discouraged and give up, would tend to learn less than they would have learned in an environment where their level of academic preparation was closer to the class median.
I suggested that the “mismatch effect” could explain as much as half of the black-white gap in first-time bar passage rates (the full gap is thirty to forty percentage points). I also suggested that “mismatch” might so worsen black outcomes that, on net, contemporary affirmative action was not adding to the total number of black lawyers, and might even be lowering the total number of new, licensed black attorneys.
The article generated intense interest, debate, and criticism, though even most critics conceded that I had gotten the facts right. Several well-known empirical scholars in law schools published essays that purported to disprove the mismatch hypothesis. For awhile, many defenders of affirmative action seemed to assume that the article would inevitably provoke a crisis in legal academia, and while attempting to seize the moral high ground in the debate, they attracted even more publicity to the article.
After several months, however, it became clear there would be no widespread calls, among either law students or law faculty, for further inquiry and reform, and things died down. Those unhappy with the “mismatch” article – and that included the vast majority of law school and university administrators – decided the best strategy was to (a) ignore the issue and (b) use their best efforts to prevent the further release of data such as I had used in the original article. There was another, smaller burst of attention when I published a follow-up article about affirmative action in law firms, and its similar tendency to boomerang on the intended beneficiaries; but otherwise, public debate about mismatch faded away.
It is about to come back.
Over the past few years, there has been a steadily growing stream of empirical research on affirmative action, much of it taking up the mismatch question. Some social scientists, like Peter Arcidiacono at Duke University and Frederick Smyth at the University of Virginia, were interested in this subject and producing valuable research well before my Stanford article appeared. Others, like Doug Williams at Sewanee University or Robert Zelnick at Boston University, were intrigued by some of the issues that arose out of the public mismatch debate and the questions raised in the debate. Still others have been attracted by the “natural experiments” in affirmative action created by the bans on racial preferences adopted in half-a-dozen states. I have worked closely with Jane Yakowitz (soon to join the law faculty at the University of Arizona) and public-spirited lawyers to pry loose data relevant for studying affirmative action.
Cumulatively, these scholars have produced a remarkable body of research (some of which can be found here) on the workings and effects of affirmative action. And the Supreme Court’s decision (by granting cert to Fisher v. University of Texas) to revisit the subject of racial admissions preferences in higher education will undoubtedly fuel interest in this work. Over the next few days on The Volokh Conpsiracy, I’m going to highlight some of this research and the challenges facing a healthy public discussion of the mismatch issue.