Conservatives have a new reason to voice the four loveliest words in the English language: I told you so. A Stanford Law Review article by Prof. Richard Sander of UCLA concludes, "Blacks are the victims of law school programs of affirmative action, not the beneficiaries." According to Stuart Taylor, Jr.'s summary of Sander's research, preferences do such a thorough job of placing black students in law schools where they are unlikely to succeed, that abolishing affirmative action in admissions would decrease the number of blacks admitted to law schoolsbut increase the number who graduate and pass the bar exam.
The rights to the first "I told you so" are held by Thomas Sowell. He has claimed for years that affirmative action guarantees the systematic mismatching of students and colleges. Exhibit A in his argument has been the study showing that black freshman at MIT had test scores on the math portion of the college aptitude tests that were, on average, in the top 10 percent of all students in the countrybut in the bottom 10 percent of all MIT freshmen.
Think of what this means. The people who run MIT express their commitment to social justice by searching all over the country for black students whose credentials guarantee they would be academic stars at hundreds of collegesand inducing them to come to one of the handful of institutions where they are likely to fall behind. As Sowell points out, one-fourth of the black freshman at MIT do indeed fail to graduate.
Sander's findings show the same dynamic at work, mangling lives and spirits. There is, first, a beggar-thy-neighbor policy within the hierarchy of law schools. The most exclusive ones meet their quotas (oopsgoals) for black students by enrolling many whose undergraduate grades and LSAT scores predict successful completion of the J.D. program at a second-tier law school. The second-tier law schools must then enroll black students likely to flourish in third-tier schools, and so on.
The unshocking consequences: Half of black law school students end up in the bottom tenth of their classes; two-thirds in the bottom fifth; and only 8 percent in the top half. A fifth of black law students never graduate, more than twice the dropout rate of whites. According to Taylor, "More than 40 percent of entering black law students never pass the bar and never become lawyers. Blacks are four times as likely as whites to fail their first bar exams and six times as likely to fail on each of five successive attempts."
If you had to bet the rent, which would you choose as the more likely reaction: a) the defenders of affirmative action thank Prof. Sander for his 117-page study and promise to re-examine preferences in light of his findings; or b) they denounce Sander for giving aid and comfort to the KKK? If you chose a) it's time to start calling relatives who might let you sleep on their sofa.
For example, although Sander concludes that black law students do as well as whites with similar undergraduate grades and LSAT scores, the dean of the Wayne State University law school asserts, "to say that African American students cannot compete is absurd. What is certain is if law schools were to adopt Sander's policies there is little doubt that colleges and universities will become segregated." The Journal of Blacks in Higher Education says that Sander "does not take account of the extraordinary determination with which in recent years thousands of often educationally underprepared black students have persisted through both college and law school." According to a researcher at the Equal Justice Society, "Sander's study is a polemical attack on affirmative action masquerading as social science; his claim that ending affirmative action would increase the number of black lawyers is based on an alarming number of statistical errors, erroneous assumptions and wild inferences."
Perhaps the Equal Justice Society is right, and Sander's multiple regressions will fall apart if other scholars lean on them. But, again, do you want to wager on the likelihood that, if they don't fall apart, the civil rights industry will accept his findings? The reluctance to admit a mistake is a human trait, of course, not particular to any one political persuasion. What's interesting is not that defenders of affirmative action, and liberals generally, are stubborn about admitting their errors. Rather, it's the way they're stubborn and they way the make their errors in the first place.
Consider the famous line from Pres. Roosevelt's "Rendezvous with Destiny" speech to the 1936 Democratic convention: "Divine justice weighs the sins of the cold-blooded and the sins of the warm-hearted on different scales. Better the occasional faults of a government that lives in a spirit of charity than the consistent omissions of a government frozen in the ice of its own indifference."
FDR's argument raises two questions, one about its application, the other about the underlying principle. Concerning the first, FDR slips in the assumption that the faults of a government that lives in a spirit of charity will be only occasional. But where does that leave us when these "occasional" missteps become so frequent that no reasonable person can consider them anomalies? Where does that leave us when public housing projects become vertical slums? When welfare dependency becomes an intergenerational way of life? When an emphasis on rehabilitation and "root causes" leads to soaring crime rates? When affirmative action harms its intended beneficiaries? When busing proves to be racially incendiary? When ever increasing expenditures cannot prevent the government monopoly from delivering urban public education in the form of school-free drug zones?
Every one of these policies was carried out in "the spirit of charity." Mark Steyn wrote earlier last year about the pervasive spirit of charity in the United Kingdom, where housing allowances, training programs and "Jobseeker's Allowances" make it possible to avoid seeking a job for years and years. The story of Susan Moore, who hasn't worked anywhere since dropping out of college 16 years ago, reminded Steyn "that the greatest crime of welfare isn't that it's a waste of money, but that it's a waste of people." Ms. Moore gets by, "listening to CDs and watching videos" during the week, while "I shop on a Saturday and on Sunday I sit at home and relax a bit." According to Steyn, "It's hard to think of anything capitalism red in tooth and claw could have done to Susan Moore that would have left her worse off than the great sapping nullity in which Her Majesty's Government has maintained her for her entire adult life."
When so much charity generates so much misery, it is fair to ask whether the "sins of the warm-hearted" deserve to be weighed on the lenient scale FDR chose for them. The underlying principle of the politics of charity requires skeptical examination. Perhaps, in the first place, it is a category mistake to seek to imbue the workings of government, an institution, with charity, a virtue of individuals. (FDR told the Democrats in 1936, "We seek not merely to make government a mechanical implement, but to give it the vibrant personal character that is the very embodiment of human charity.") The abundant evidence of the last seventy years argues that when governments, which exist to render justice, are made instead to behave like indulgent rich uncles, they wind up doing a bad job at dispensing both justice and mercy.
Clifford Orwin reminds us that the routinization of charity in social work, much less its institutionalization in the welfare state, is a tricky business: "He who undertakes for a wage to be compassionate for 40 hours a week will soon be so for no hours a week." Prof. Orwin, who has thought longer and harder about compassion than any other scholar, points out that compassion is strangely compatible with a kind of callousness. Etymologically, "compassion" means to suffer together. "Together" isn't the same as "identically"the infomercials for charities that feed starving children don't make me feel hungry, but distressed. That distress, in turn, gives me a reason to call the 800 number on the screen, make a donation, and go to bed feeling better about myself and the world.
Compassion, then, is not the same as selflessness. It provides a basis for helping other people that is materially unselfish but emotionally self-regarding. The difficulty arises when I can alleviate my suffering, brought on by the awareness of your suffering, despite the continuation of your suffering, despite the collateral damage my solution inflicts on bystanders, and even despite the creation of new and worse problems for you. Because of compassion we suffer together. I help you in order that I might feel better. But once I do feel better, compassion has done its workand there's no reason for me to concern myself with all the messy implications of whatever I've done for (or to) you.
Does affirmative action place minority students in law schools where they're likely to fail, while depriving other applicants of the chance to attend the most challenging schools where they are capable of succeeding? I haven't got time to get into all that; I'm too busy feeling good about my support for racial justice. Does rent control drive up the cost of housing, deprive property owners of a fair return on their investment, while driving down the quality and quantity of the housing stock? I'd rather not speculate; the important thing is I support affordable homes for poor people. Do minimum wage laws shrink the number of entry-level jobs, making it harder to escape from poverty? That's the kind of question only the cold-blooded would askeven if it's true, I would rather be here with the warm-hearted, committing our occasional faults . . . over and over again.
The literary critic A.E. Dyson wrote that, "Being right about the nature of things is no excuse for being inhuman." This is correct, and important. But it's also the case that being warm-hearted is no excuse for being wrong about the nature of thingsstubbornly, destructively, often blithely wrong. Liberalism makes you feel good, says George Will; conservatism is true. Let's see the world clearly first, then concern ourselves with feeling good about our efforts to improve it.