Number 20 - December 12, 2002
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article was originally published December 5 as a Znet Commentary, by
subscription at www.zmag.org
So the Supreme Court
has announced it will hear the long-simmering affirmative action case
from the University of Michigan law school, in which white plaintiffs
sued, claiming to have been denied admission even though they had grades
and test scores that were comparable to those of students of color who
The case in question
- which the Circuit Court decided in favor of the law school and their
affirmative action program - will now fall into the lap of a high court
that has been increasingly hostile to such policies and tends to consider
race-conscious affirmative action efforts little more than illegitimate
But in truth, the
plaintiff's claims of reverse discrimination (pieced together by the
right-wing Center for Individual Rights) are so flimsy they would be
almost laughable were they not so dangerous. Understanding how the right
manipulates data to make their case is important for those who hope
to stanch the movement to roll back key civil rights gains. Indeed,
the data is not only flawed but also dangerous, for its acceptance as
legitimate social science - as will be seen below - could set a precedent
for essentially blocking the admission of blacks, Latinos and American
Indians to selective schools of higher education.
By utilizing questionable
statistical techniques, the plaintiffs claim that black, Latino and
American Indian applicants to the U of M law school received preference
over whites because they were often accepted with GPA's and LSAT scores
that for whites were met with rejection.
According to the
plaintiffs, the odds of one of these "underrepresented minority"
students (URM's) being admitted were often hundreds of times better
than the odds of a white applicant with similar scores and grades. Although
the plaintiffs have never presented evidence that the URM's admitted
were unqualified - indeed they conceded that all had been fully qualified
- they insist that when URM's and whites had equal qualifications, minority
students were more likely to be accepted, thereby indicating preference.
To make their case
at trial, the plaintiff's attorneys presented grid displays that broke
down those who applied and were admitted to the law school by "qualification
cells," separating students into groups by GPA and LSAT (i.e.,
3.5-3.75 GPA and 156-158 on the LSAT, on a 120-180 scale).
Within each cell,
statistician Kinley Larntz calculated the odds of admission for each
student, concluding that URM's in many cells had greater chances of
admission than whites with the same grades and test scores. He then
calculated the odds ratios for each cell, so that if URM's in a cell
had a 50% chance of admission and whites had a 25% chance, the odds
ratio would be 2:1. The larger the odds ratio, the greater the degree
of presumed preference.
But such an analysis
is flawed. First, the data used to calculate admissions odds ratios
was limited. Whenever URM's and whites in a given cell were treated
the same - either all accepted or all rejected - Larntz simply threw
out their data and refused to consider it.
In other words,
by only examining cells where there was a differential outcome, Larntz
automatically inflated the size of that difference. Overall, 40% of
minority students who applied to the law school were in cells that exhibited
no racial differences in admission odds ratios, meaning that claims
of massive preference for URM's depend on ignoring 40% of all applicants
of color to the law school.
odds ratios for white and minority acceptance could just as easily result
from a system involving zero preference for URM's, as from a system
with large preference, largely due to the small sample sizes of applicants
For example, in
1996, among the most qualified applicants (students with a 3.75 GPA
or better and a 170 or higher on the LSAT), only one black with these
numbers applied to the U of M. This applicant was accepted. 151 whites
applied with these numbers and 143 were accepted. While most everyone
at this level was admitted, since there was only one black who applied
and got in, the "odds ratio" in favor of blacks at that level
appears infinite - a guarantee for blacks and a less than certain probability
for whites. But surely one cannot infer from one accepted black out
of one black applicant at that level that there is some pattern of preference
As proof that one
could produce odds ratios favoring blacks even in the absence of racial
preference for any individual URM, consider the implications of a study
by the Mellon Foundation and the Urban Institute, which found that blacks
tend to have faced greater educational obstacles than whites with comparable
scores on standardized tests. When compared to whites with scores comparable
to their own, blacks in a particular range are far more likely to have
come from low-income families and families with less educational background.
These black students
are also more likely to have attended resource-poor inner city schools
where course offerings are more limited than in the mostly suburban
schools attended by whites. Thus, black students can be said to have
overcome more and even be more "qualified" than whites who
score in the same range or even a bit higher on standardized tests.
As such, it becomes
easy to see how differential admissions odds ratios could obtain even
without "racial preferences." Simply put, if whites tend to
be better off and face fewer obstacles to their educational success
than blacks, and if blacks tend to be worse off and face more obstacles,
then any black applicant to a college, law school or graduate school
will likely have a greater claim for their merit at a given test score
level than a white who scored the same.
To visualize the
point, imagine a four-leg relay race. If whites tend to start out two
laps ahead of blacks and the runners finish the race tied, is it fair
to say they were equally good as runners; or would we instead say that
the black runner was superior, having made up so much ground?
Since even the plaintiffs
have agreed there is nothing wrong with considering the obstacles faced
by applicants, including the effects of racism, it is quite possible
that admissions officers could look at applicant files, see whites and
blacks with comparable scores, and then on an individual basis make
the determination that the black applicants were more qualified, having
overcome obstacles faced by far fewer whites. But if individual analyses
were completed with such a result, they would produce the same odds
ratios as discovered by Larntz. In other words, differential odds ratios
themselves prove nothing.
Indeed, the implications
of accepting differential odds ratios as evidence of "reverse discrimination"
are chilling, and would require the rejection of almost all applicants
of color to selective schools, simply because there are so few URM applicants.
For example, imagine
an applicant pool at a hypothetical school where there is only one URM
applicant for each "qualification cell," perhaps because the
school is in a very white location and doesn't typically attract minority
applicants. Under an odds ratio analysis that assumed URM's couldn't
have more favorable odds of admission without this proving reverse discrimination,
most URM's no matter how competent would have to be rejected simply
because to accept one-out-of-one would represent "infinite odds"
and require the acceptance of every white in the same cell, merely to
keep the odds ratios the same.
So although we could
expect the whites and students of color at the lowest level of scores
to all be rejected and those at the top to all be accepted, in the middle
such a situation would create chaos. If one black student applied with
scores and grades that were good but not a sure thing for admission,
and 200 whites applied with those same numbers, the school would have
to accept every white in that cell if they accepted the one black, or
else face a lawsuit for reverse discrimination on the basis of an unacceptably
pro-black admissions odds ratio.
Beyond mere hypotheticals,
there is real evidence of how reliance on odds ratios would work in
practice. In 1996, there were only two black students in the country
who received LSAT's over 170 and had GPA's of 3.75 or better. If one
of these applied to a given law school, that person would have to be
rejected under an odds ratio analysis unless the law school was ready
to accept every white applicant with that same score and GPA, irrespective
of other aspects of their application file.
Now imagine that
the same year, 100 whites with those numbers applied to the same school,
and 80 of them were admitted, or 90, or 95; and imagine that both of
the blacks with those grades and scores applied. Since admitting both
of the blacks would yield odds ratios unacceptably in favor of blacks,
the school would have to reject one of the clearly qualified blacks
with those numbers (thereby producing a large odds ratio in favor of
whites) just to avoid being sued for reverse discrimination!
Even the strongest
evidence of URM racial preference at U of M indicates the problem with
utilizing odds ratio analyses. Larntz notes, for example, that among
applicants in 1999 with a 3.5-3.7 GPA and LSAT's of 156-158, six of
seven URM's were admitted, while only one of seventy-three whites at
that level were accepted. This yields an odds ratio of 432:1 in favor
of URM's at that level: a seemingly huge racial preference. But there
are two problems.
First, with only
seven black, Latino or Indian applicants to the U of M School of Law
in that particular "qualification cell," it is entirely possible
that the admissions officers who decided to accept six of those seven
merely examined the files and found that those six had overcome extraordinary
obstacles (including racism and perhaps economic hardship), unlike the
white applicants. Thus, the ratio itself, absent other evidence about
the particular decision-making of admissions officers, cannot prove
a preference for URM's, as the pool is simply too small.
Secondly, to balance
the odds ratios for this cell would have been impossible. If seven of
eighty applicants with that combination of test scores and grades was
worthy of acceptance--essentially what the University said that year--this
yields an acceptance probability at that level of 8.75%. Applying that
probability to each group yields six whites out of 73 who should be
accepted and 0.6 URM's out of seven who should be. In other words, because
of the small pool of URM's in that group, it wouldn't be possible to
admit even one, let alone one black, one Latino and one American Indian,
without giving a much higher probability of admission to URM's as a
But for the sake
of argument, let's say the school rounded up the six-tenths of a person
to one full person and admitted one URM with these numbers. Thus, instead
of 6 URM's and 1 white admitted (the actual numbers for 1999), we would
get the opposite: 6 whites and 1 URM. The problem is, even with that
"correction," the probability of acceptance for URM's would
be 14.3%, while for whites it would be 8.2%, meaning there would still
be an unacceptable odds ratio favoring people of color simply as a function
of sample size. So even under a "race-blind" process that
sought to avoid different probabilities for different groups, it would
be impossible to eliminate favorable odds ratios for people of color,
without basically rejecting the vast majority of URM applicants outright.
The fact is, the
current attack on affirmative action is based on a lie; the lie of reverse
discrimination. The statistics used by groups like the CIR and their
clients in court to demonstrate supposed "racial preference"
for people of color are bogus and prove nothing, except the old adage
that you can make numbers say just about whatever you wish. It is incumbent
upon those of us who support affirmative action to confront these lies
and flawed data head-first; to demonstrate conclusively on which side
of the bread one continues to find the butter in this society (hint:
it ain't the rye side), and to show beyond any doubt that the right-wing
crusade against racial equity is supported by smoke and mirrors, not
The facts are plain.
There is no racial preference for minority students at the University
of Michigan Law School. In 1997, for example (one of the years covered
by the lawsuit), 34% of black applicants were admitted to the Law School
while 39% of white applicants were admitted. More recently, in 2000,
36% of black applicants were admitted, while 41% of white applicants
were. If that's reverse discrimination, I'm having a hard time making
out the victims.
Tim Wise is
an antiracist writer, lecturer and activist. He can be reached at (and
footnotes can be obtained from), [email protected]