Wednesday, November 22, 2017

Goodwin Liu

Excerpted from: Goodwin Liu, the Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions , 100 Michigan Law Review 1045-1107, 1046-1050, 1103-1104 (March, 2002)(239 Footnotes)

Last Term, the Supreme Court turned down two invitations to resolve the constitutionality of affirmative action in college and university admissions. In May 2001, the Court for the second time declined to review a Fifth Circuit decision holding that the use of racial preferences to achieve diversity in the student body serves no compelling interest. A few weeks later, the Court let stand a conflicting Ninth Circuit decision that upheld a law school affirmative action policy on the ground that "educational diversity is a compelling governmental interest that meets the demands of strict scrutiny." The legal controversy over admissions preferences intensified in August 2001 when the Eleventh Circuit invalidated the University of Georgia's undergraduate affirmative action policy on the ground that it was not narrowly tailored. With the Sixth Circuit's recent decision upholding the University of Michigan Law School's affirmative action policy and yet another ruling expected soon, the debate will soon come to a full boil. Facing an array of divergent lower court opinions on the issue, the Supreme Court may well decide in the next few months that the time for a final resolution has come.


Although the most recent legal challenges to racial preferences in university admissions vary in their details, they are unified by a common narrative--the same narrative that animated Allan Bakke's lawsuit against the Davis Medical School over twenty years ago. Bakke won admission to the medical school after convincing the Supreme Court that the school's practice of setting aside sixteen out of 100 seats in each incoming class for minority students was an unconstitutional racial quota. The record shows that Bakke was, in fact, a highly qualified applicant. His undergraduate grades and standardized test scores were excellent, far better than the averages for minority students admitted through the set-aside. Yet the medical school rejected Bakke's application, even as it admitted minority applicants in numbers large enough to fill the sixteen-seat quota. This prompted Bakke to complain that affirmative action cost him a letter of admission, and the success of his lawsuit confirms what so many people find unfair about affirmative action: By according substantial preferences to minority applicants, affirmative action causes the displacement of deserving white applicants like Allan Bakke and the plaintiffs now following in his footsteps.


This Article argues that the perceived unfairness is more exaggerated than real. The perception is a distortion of statistical truth, premised on an error in logic. There is strong evidence, as Bakke's story suggests, that minority applicants stand a much better chance of gaining admission to selective institutions with the existence of affirmative action. But that fact provides no logical basis to infer that white applicants would stand a much better chance of admission in the absence of affirmative action. To draw such an inference, as opponents of affirmative action routinely do, is to indulge what I call "the causation fallacy"--the common yet mistaken notion that when white applicants like Allan Bakke fail to gain admission ahead of minority applicants with equal or lesser qualifications, the likely cause is affirmative action.


The causation fallacy reflects white anxiety over the intensely competitive nature of selective admissions, and it undoubtedly accounts for much of the moral outrage that affirmative action inspires among unsuccessful white applicants. It was widely reported, for example, that what prompted Jennifer Gratz to become the lead plaintiff in a major test case challenging the University of Michigan's use of racial preferences in undergraduate admissions was her overriding sense that she had been displaced by less qualified minority applicants. Observers of politics will recall a 1990 television commercial that depicted the plight of applicants like Bakke and Gratz by showing a pair of white hands crumpling a letter informing the recipient he had lost a job to a minority applicant. "You needed that job," the voice-over said. "And you were the best qualified. But they had to give it to a minority because of a racial quota. Is that really fair?" Michael Lind, an otherwise thoughtful commentator on the subject, has said that "[i]n order to accommodate a few less-qualified black students, the University of Texas Law School, like other leading law schools, must turn down hundreds or thousands of academically superior white students every year." And a recent national survey confirms that affirmative action remains highly unpopular among whites in part because of perceptions of increased competition with minorities for employment and educational opportunities.


Yet the powerful appeal of the causation fallacy is all the more reason for courts and commentators to purge it from moral and legal discourse on affirmative action, especially as the current spate of anti-affirmative action lawsuits percolates up to the Supreme Court. At its core, the fallacy erroneously conflates the magnitude of affirmative action's instrumental benefit to minority applicants, which is large, with the magnitude of its instrumental cost to white applicants, which is small. While not the first to observe the arithmetic error at the root of the fallacy, this Article is the first to give the error a name, to expose the genesis of this error in Bakke, and to examine its implications for the standing of white plaintiffs and the merits of their claims. What this Article demonstrates is that the causation fallacy, by unduly magnifying the practical harm suffered by white applicants, stands in the way of any rational effort to evaluate the fairness of affirmative action.
At the outset, I wish to make clear what this Article does not do. It does not definitively resolve the constitutionality of affirmative action, nor does it prove the ultimate fairness or worthiness of affirmative action as a matter of social policy. Grand ambitions of this sort are difficult to accomplish given the strength of the arguments and the depth of feelings on both sides of the debate. At the same time, I do not claim immunity from the pressure to be either "for" or "against" affirmative action; indeed, I have made no mystery of where my sympathies lie. But this Article, by design, has a limited scope. I have chosen to focus on a specific strand of argument made by white applicants who oppose racial preferences in an attempt to loosen the grip that argument has had on the affirmative action debate. My effort begins with a showing that Bakke, as a story about how affirmative action affects white applicants, is wrong both on its own facts and as a broadly representative narrative. That showing, which exposes the causation fallacy, does not conclusively resolve whether affirmative action is fair or unfair to white applicants. But it does enable us to engage that question in more lucid, more rigorous, and less polarizing terms.


This Article has four parts. Parts I and II demonstrate that the causation fallacy defies the basic arithmetic of selective admissions. My argument proceeds from one simple statistical truth: In any admissions process where applicants greatly outnumber admittees, and where white applicants greatly outnumber minority applicants, substantial preferences for minority applicants will not significantly diminish the odds of admission facing white applicants. Part I develops this argument by showing that the racial quota in Bakke, though a substantial benefit to minority applicants, was not likely the sole or even the primary reason for Bakke's rejection. His success in winning an order of admission from the Supreme Court, it turns out, was attributable not to the likelihood of his admission had there been no racial quota, but to a little-known procedural quirk barely acknowledged in Justice Powell's opinion and rarely if ever mentioned in commentary. Part II corroborates this analysis of Bakke with similar findings based on undergraduate admissions data from William Bowen and Derek Bok's comprehensive study of affirmative action, The Shape of the River. These findings and the logic behind them show that the admission of minority applicants and the rejection of white applicants are largely independent events, improperly linked through the causation fallacy.


Parts III and IV examine the legal implications of dispelling the causation fallacy. Part III begins with the recognition that, absent the causation fallacy, white applicants have legitimate grounds for claiming that affirmative action prevents them from competing on an equal footing with minority applicants. Such a claim, which is distinct from a claim of displacement, establishes a cognizable equal protection injury. Importantly, however, not all white applicants are positioned to raise an equal-footing claim. When the mechanics of selective admissions are analyzed at the level of individual applicants, it becomes clear that a substantial number of unsuccessful white applicants (somewhere close to half in Bowen and Bok's study) are too weak to be admitted even when placed on an equal footing with minority applicants. Because the failure of those applicants to gain admission has nothing to do with race, they lack standing to challenge affirmative action. Among the remaining white applicants, all have standing to raise an equal-footing claim, but under current law, most are not entitled to sue for damages or other retrospective relief. Only the tiniest fraction of unsuccessful white applicants genuinely conforms to the Bakke narrative, and there is reason to believe that such highly qualified applicants make unlikely plaintiffs


Finally, Part IV discusses the implications of the causation fallacy for evaluating the constitutional merits of affirmative action. Because strict scrutiny takes into account the nature and severity of the burden that affirmative action imposes on white applicants, it is essential to characterize that burden accurately, without the distorting influence of the causation fallacy. Moreover, exposing the causation fallacy has the salutary effect of centering the merits inquiry on whether white applicants are improperly stereotyped, not displaced, by affirmative action. Claims of displacement tend to inflate the degree of racial conflict inherent in race-conscious admissions, thereby heightening the pressure to be "for" or "against" affirmative action. In contrast, the stereotyping concern defuses the tendency toward polarization by relating the fairness of affirmative action to the concrete workings of particular policies.
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