Affirmative action thorny as ever in U.S.

The United States’ Department of Justice (DOJ) is investigating Harvard University over the way the school considers applicants’ race during its admissions process. The DOJ has already declared, in a letter to the school, that Harvard is not complying with federal anti-discrimination law, and the government is threatening to sue if Harvard doesn’t turn over requested documents by Dec. 1.

Meanwhile, a private lawsuit against Harvard alleging discrimination against Asian American students during the admissions process remains pending in federal court.

In other words, the affirmative action debate is back. This is a good and bad thing.

Bad because the arguments over affirmative action in admissions (also known as racial privileges or positive discrimination or quotas or giving people a fair shake) are divisive, and the world is plenty divided already. Good because we never did get the affirmative action discussion right, and it’s an important one with many subtleties.

In the United States, the Supreme Court hasn’t exactly given affirmative action a complete green light, constitutionally speaking. But ruling in a case called University of Texas vs. Fisher, the court has said that it’s OK for universities to use race as one factor in admissions decisions … so long as the policies are strictly tailored to achieving a diverse student body.

Legally speaking, things are clearer in Canada, where our Charter of Rights and Freedoms explicitly declares that its equality provision doesn’t apply to affirmative action programs: race-based discrimination is officially OK if you’re trying to help a “disadvantaged group.” (I don’t agree with the choice to add this exception to the Charter, but I admire the clarity, which probably saved millions of dollars in litigation.)

Yet whether affirmative action in university admissions helps disadvantaged groups is an unsettled question.

UCLA economist Richard Sander does not oppose racial preferences in admissions per se, but has drawn attention to the very serious mismatch problems it creates.

If, based on grades and test scores, a minority student is admitted to a school that he would not normally be accepted to, he will find “himself in a class where he has weaker academic preparation than nearly all of his classmates,” Sander has written.

“Large preferences often place students in environments where they can neither learn nor compete effectively — even though these same students would thrive had they gone to less competitive but good schools.”

The result is demoralized minority students, higher minority student dropout rates, and the reinforcement of “pernicious racial stereotypes,” as Sander puts it.

None of that sounds like it’s doing disadvantaged groups any favours.

It’s worth emphasizing that the mismatch problem has nothing to do with race. It’s a problem for any student who ends up at a school or classes for which he’s unprepared, which means preferences based on anything other than academic performance will result in this negative effect.

I’m not a visible minority, but I suspect the mismatch problem helps explain why I enjoyed my undergraduate experience far more (at a school where my SAT scores and high school grades were equal to or higher than most of my classmates) than I enjoyed my law school experience (at a school where my LSAT scores were lower than most of my classmates — and being female might have been what vaulted me in).

Being in the middle of the pack at law school, after spending my entire academic career at the top of my class, was (I’m embarrassed to admit) painful, disheartening, and demotivating — something I always considered a personal failing until I started reading the research showing that mine was a fairly universal response. (Ironically, Sander published his groundbreaking article on the phenomenon in the law review of the law school I attended.)