From Normative to Empirical Sociology in the Affirmative Action Debate: Bowen and Bok's the Shape of the River

Journal of Legal Education

Volumn 50, Issue 2, 2000, Pages 284-303

  Bowen, William ^a   Bok, Derek ^a  

^a NONE

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EID: 0348247003     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (57)

1. Anarchy, State, and Utopia 247 (New York, 1974).
2. Their data did not allow meaningful analysis of outcomes for other minority groups.
3. The comparable figure for Hispanic applicants is 8.6 percent. Racial and Ethnic Preferences in College Admissions, in The Black-White Test Score Gap, eds. Christopher Jencks & Meredith Phillips, 431, 438 (Washington, 1998) [hereinafter Test Score Gap].
4. Bowen and Bok divide C&B schools into three tiers of selectivity, according to the mean combined SAT scores of their students. SEL-1 includes the most selective institutions (such as Stanford and Williams, with mean 1976 SAT scores greater than 1,250); SEL-2 includes the next tier of institutions (such as Northwestern and Tufts, with mean scores of 1,150-1,249); SEL-3 consists of the least selective schools (such as Penn State and Tulane, with mean scores of 1,000-1,149) (40).
5. Gratz et al. v. Bollinger et al., No. 97-75321 (E.D. Mich.). Information on admissions is from University of Michigan, 1999 Guidelines for the Calculation of a Selection Index for All Schools and Colleges Except Engineering.
6. Regents of the University of California v. Bakke, 438 U.S. 265, 314 (1978).
7. The response of the Texas state legislature to the Hopwood decision fails this test of true colorblindness. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996). It decided to mitigate the racial impact of Hopwood's prohibition of racial preferences in admissions by requiring the University of Texas to offer admission to any applicant in the top 10 percent of any Texas high school graduating class. The law enables a racially diverse group of students to be admitted because of the high levels of racial segregation in Texas high schools. Although ostensibly packaged as a meritocratic law, it is far less meritocratic than race-conscious admissions. For the 10 percent rule mandates the admission of minority and white students who, because their high schools have given them poor academic preparation, will perform far less well academically and benefit less from the educational opportunities offered than students admitted under race-conscious affirmative action.
8. The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admissions Decisions, 72 N.Y.U. L. Rev. 1, 22 (1997).
9. Stephan Thernstrom & Abigail Thernstrom, America in Black and White 422 (New York, 1997).
10. Larry V. Hedges & Amy Nowell, Black-White Test Score Convergence Since 1965, in Test Score Gap, supra note 3, at 149, 154-55.
11. Id. at 159.
12. Clyde W. Summers, Preferential Admissions: An Unreal Solution to a Real Problem, U. Toledo L. Rev. 377 (1970); Thomas Sowell, Black Education: Myths and Tragedies (New York, 1972);
13. Clyde W. Summers, Preferential Admissions: An Unreal Solution to a Real Problem, U. Toledo L. Rev. 377 (1970); Thomas Sowell, Black Education: Myths and Tragedies (New York, 1972);
14. Thernstrom & Thernstrom, supra note 9, at 386-422.
15. College Selectivity and Earnings, 13 J. Lab. Econ. 289 (1995). This is the only nonanecdotal evidence for the mismatch hypothesis cited by Thernstrom & Thernstrom, supra note 9, at 409-10, that uses the correct value-added standard for evaluating affirmative action. Their other data compare black with white dropout rates, a method which cannot sort out the effects of affirmative action from other causes of higher dropout rates among blacks.
16. Loury & Garman, supra note 13, at 303-05.
17. Ursula Wagener & Michael Nettles, It Takes a Community to Educate Students, Change, Mar./Apr. 1998, at 38.
18. Kane, supra note 3, at 445.
19. Stephan Thernstrom & Abigail Thernstrom, Reflections on The Shape of the River, 46 UCLA L. Rev. 1583, 1619 (1999).
20. Richard Zweigenhaft & G. William Domhoff, Blacks in the White Establishment? 39, 63 (New Haven, 1991).
21. To my knowledge, this is the only race-based affirmative action program that has met the catch-up standard for an extremely rigorous academic program. Why couldn't colleges replicate this success? Preparatory schools that participated in the ABC program offered intensive professional tutoring to help students catch up and exercised control over virtually all of a student's time, most of which was dedicated to academics. Colleges do not offer nearly that level of tutoring services, and do not exercise nearly the same control over their students.
22. Bowen and Bok compare C&B graduation rates with those of NCAA Division I schools because the NCAA has one of the few sources of graduation data broken down by race. The comparison is apt, because a principal effect of abolishing affirmative action would be to shift black students from flagship state universities, such as the University of Michigan in Ann Arbor, to second- and third-tier state universities, such as Michigan State or Eastern Michigan University (schools that belong to Division I).
23. Thernstrom & Thernstrom, supra note 17, at 1602.
24. Stephan Thernstrom, Diversity and Meritocracy in Legal Education: A Critical Evaluation of Linda F. Wightman's "The Threat to Diversity in Legal Education," 15 Const. Commentary 30 (1998). Thernstrom makes this suggestion in the context of a discussion of law schools, but he casts his statement in general terms.
25. Thernstrom & Thernstrom, supra note 17, at 1603.
26. Id. at 1604-05; Terrance Sandalow, Minority Preferences Reconsidered, 97 Mich. L. Rev. 1874, 1878 (1999).
27. Id. at 1604-05; Terrance Sandalow, Minority Preferences Reconsidered, 97 Mich. L. Rev. 1874, 1878 (1999).
28. The difference in black graduation rates between SEL-1 and SEL-3 enrollees in the 1989 cohort ranges from 4 to 23 percent, depending on SAT range (380). Similarly, even after adjusting for SAT, socioeconomic status, being in top 10 percent of high school class, aspiring to an advanced degree, class rank, and undergraduate major, SEL-2 black graduates in the 1976 cohort had a 42 percent chance of attaining a professional or doctoral degree, compared to a 29 percent chance for their SEL-3 counterparts (389-91). It is not a good bet that finer-grained measures of academic qualification and aspiration would reverse these huge advantages of attending a more selective school, as the mismatch hypothesis requires.
29. William Bowen & Derek Bok, Response to Review by Terrance Sandalow, 97 Mich. L. Rev. 1917, 1921 (1999).
30. Kane, supra note 3, at 445. Does it follow that racial preferences should be abolished, so as to move black students from integrated institutions to HBCs? No: few blacks want or can afford to attend an out-of-state college, but HBCs are concentrated in the South. And the mission of most HBCs is to train black students considerably less well qualified than those who attend selective schools.
31. It might be thought that the grade gap would be even larger if black students did not take refuge in supposedly easy majors such as African-American studies. In fact, blacks and whites in the C&B universe take challenging majors such as biology, chemistry, mathematics, engineering, and philosophy at the same rates, and few blacks major in African-American studies (71).
32. Thernstrom & Thernstrom, supra note 17, at 1607.
33. To the contrary, all underrepresented racial and gender groups do better academically if they are present in a critical mass than if they have a mere token presence on campus. By providing more same-group peers who help one another out, affirmative action may therefore improve the performance of those who would have been admitted anyway. See Erica J. Gosman et al., Predicting Student Progression: The Influence of Race and Other Student and Institutional Characteristics on College Student Performance, 19 Res. Higher Educ. 209 (1983).
34. Thernstrom & Thernstrom, supra note 17, at 1608.
35. David A. Kindig & H. Movassaghi, The Adequacy of Physician Supply in Small Rural Communities, 8 Health Aff. (Millwood) 63 (1989); Kevin Grumbach, Physician Supply and Access to Care in Urban Communities, 16 Health Aff. 71 (1997).
36. David A. Kindig & H. Movassaghi, The Adequacy of Physician Supply in Small Rural Communities, 8 Health Aff. (Millwood) 63 (1989); Kevin Grumbach, Physician Supply and Access to Care in Urban Communities, 16 Health Aff. 71 (1997).
37. M. Komaromy et al., The Role of Black and Hispanic Physicians in Providing Health Care for Underserved Populations, 334 New Eng. J. Med. 1305 (1996).
38. V. B. Thurmond & Darrell G. Kirch, Impact of Minority Physicians on Health Care, 91 S. Med. J. 1009 (1998).
39. Komaromy et al., supra note 33, at 1305.
40. For a summary, see J. C. Cantor et al., Physician Service to the Underserved: Implications for Affirmative Action in Medical Education, 33 Inquiry 168 (1996).
41. Commission on Opportunities for Minorities in the Profession, American Bar Association, Miles to Go: Progress of Minorities in the Legal Profession 6, 14 (Chicago, 1998).
42. Council of Economic Advisors for the President's Initiative on Race, Changing America: Indicators of Social and Economic Well-Being by Race and Hispanic Origin 26 (Washington, 1998).
43. Timothy Bates, Banking on Black Enterprise 140 (Washington, 1993).
44. For an illuminating discussion of the nuances of conscious racial discrimination by urban employers, see Joleen Kirschenman & Kathryn Neckerman, "We'd Love to Hire Them, But . . . ": The Meaning of Race for Employers, in The Urban Underclass, eds. Christopher Jencks & Paul Peterson, 203 (Washington, 1991).
45. Bates, supra note 39, at 10-11.
46. The same lesson applies to affirmative action in government contracting and assistance to small businesses, when minority businesses can qualify for access to government help only if they can demonstrate such race-neutral dimensions of underprivilege as undercapitalization and low education. Targeting assistance to such firms is simply a formula for "mass business failure." Id. at 13. Only the more privileged black entrepreneurs are in a position to offer growing job opportunities for minorities and models of success that less privileged black entrepreneurs can learn from. Id. at 13-14.
47. The same lesson applies to affirmative action in government contracting and assistance to small businesses, when minority businesses can qualify for access to government help only if they can demonstrate such race-neutral dimensions of underprivilege as undercapitalization and low education. Targeting assistance to such firms is simply a formula for "mass business failure." Id. at 13. Only the more privileged black entrepreneurs are in a position to offer growing job opportunities for minorities and models of success that less privileged black entrepreneurs can learn from. Id. at 13-14.
48. Jeff Milem, The Educational Benefits of Diversity: Evidence from Multiple Sectors, in Compelling Interest: Examining the Evidence on Racial Dynamics in Higher Education, eds. Mitchell Chang et al. (Stanford University: Report of the AERA Panel on Racial Dynamics in Colleges and Universities, 2000), 〈www.stanford.edu/~hakuta/RaceInHigherEducation.html〉; Patricia Gurin, Expert Report of Patricia Gurin, in The Compelling Need for Diversity in Higher Education. Gratz et al. v. Bollinger et al., No. 97-75321 (E.D. Mich.); Grutter et al. v. Bollinger et al., No. 97-75928 (E.D. Mich.). (Ann Arbor University of Michigan, 1999), 〈www.umich.edu/~urel/admissions/legal/expert/gurintoc.html〉; Linda Sax & Alexander Astin, The Development of "Civic Virtue" Among College Students, in The Senior Year Experience, eds. John Gardner & Gretchen Van der Veer (San Francisco, 1997).
49. Jeff Milem, The Educational Benefits of Diversity: Evidence from Multiple Sectors, in Compelling Interest: Examining the Evidence on Racial Dynamics in Higher Education, eds. Mitchell Chang et al. (Stanford University: Report of the AERA Panel on Racial Dynamics in Colleges and Universities, 2000), 〈www.stanford.edu/~hakuta/RaceInHigherEducation.html〉; Patricia Gurin, Expert Report of Patricia Gurin, in The Compelling Need for Diversity in Higher Education. Gratz et al. v. Bollinger et al., No. 97-75321 (E.D. Mich.); Grutter et al. v. Bollinger et al., No. 97-75928 (E.D. Mich.). (Ann Arbor University of Michigan, 1999), 〈www.umich.edu/~urel/admissions/legal/expert/gurintoc.html〉; Linda Sax & Alexander Astin, The Development of "Civic Virtue" Among College Students, in The Senior Year Experience, eds. John Gardner & Gretchen Van der Veer (San Francisco, 1997).
50. Jeff Milem, The Educational Benefits of Diversity: Evidence from Multiple Sectors, in Compelling Interest: Examining the Evidence on Racial Dynamics in Higher Education, eds. Mitchell Chang et al. (Stanford University: Report of the AERA Panel on Racial Dynamics in Colleges and Universities, 2000), 〈www.stanford.edu/~hakuta/RaceInHigherEducation.html〉; Patricia Gurin, Expert Report of Patricia Gurin, in The Compelling Need for Diversity in Higher Education. Gratz et al. v. Bollinger et al., No. 97-75321 (E.D. Mich.); Grutter et al. v. Bollinger et al., No. 97-75928 (E.D. Mich.). (Ann Arbor University of Michigan, 1999), 〈www.umich.edu/~urel/admissions/legal/expert/gurintoc.html〉; Linda Sax & Alexander Astin, The Development of "Civic Virtue" Among College Students, in The Senior Year Experience, eds. John Gardner & Gretchen Van der Veer (San Francisco, 1997).
51. "The use of race, in and of itself, to choose students simply achieves a student body that looks different Such a criterion is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants." Hopwood v. Texas, 78 F.3d. 932, 945 (5th Cir. 1996).
52. Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass 85-88 (Cambridge, Mass., 1993).
53. Segregation and discrimination, while distinct sources of racial disadvantage, are interdependent. In particular, the persistence of intense housing segregation despite the great desire of blacks to live in integrated neighborhoods involves not only a general white aversion to having black neighbors, but systematic housing discrimination on a massive scale. Id. at 89, 93, 97-114.
54. Robert Post, Introduction: After Bakke, in Race and Representation: Affirmative Action, eds. Robert Post & Michael Rogin, 13 (New York, 1998).
55. Gurin, supra note 43; Jomillis H. Braddock & James M. McPartland, The Social and Academic Consequences of School Desegregation, Equity and Choice 5 (Boston, 1988); Jomillis H. Braddock et al., Why Desegregate? The Effect of School Desegregation on Adult Occupational Desegregation of African Americans, Whites, and Hispanics, 31 Int'l J. Contemp. Soc. 273 (1994).
56. Gurin, supra note 43; Jomillis H. Braddock & James M. McPartland, The Social and Academic Consequences of School Desegregation, Equity and Choice 5 (Boston, 1988); Jomillis H. Braddock et al., Why Desegregate? The Effect of School Desegregation on Adult Occupational Desegregation of African Americans, Whites, and Hispanics, 31 Int'l J. Contemp. Soc. 273 (1994).
57. Gurin, supra note 43; Jomillis H. Braddock & James M. McPartland, The Social and Academic Consequences of School Desegregation, Equity and Choice 5 (Boston, 1988); Jomillis H. Braddock et al., Why Desegregate? The Effect of School Desegregation on Adult Occupational Desegregation of African Americans, Whites, and Hispanics, 31 Int'l J. Contemp. Soc. 273 (1994).