A Comment on Prof. Richard Sander's Mismatch Theory: Lack of Equality of Result should not disparage seeking Equality of Opportunity

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By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Over at the Volokh Conspiracy, I was struck by a comment on a posting of Professor Richard Sander of UCLA Law School about “The Problem of “Science Mismatch”” discussing his ongoing Mismatch Effect work encouraging cascading blacks down to lower ranked schools.  The comment was on what benefit comes from this research and replied,

“The obvious benefit is that we would stop discriminating against Asians and whites, and those blacks that were admitted would not have the rest of the world assuming that they only attended Harvard/Yale/Stanford because of racial preferences.”

That some in the world or the world assumes the worst about any black would not appear to me to be the key point.  That people do research and that we are to get information from that research is also not the key point.  The key point would appear to be to enhance the preparation of students from whatever backgrounds so that all students are better prepared students at each level and all students are given access to the best quality of education so that they can maximize their pursuit of happiness and participation in society.

My parents took the conscious decision to place me in white private schools from nursery school on starting back in 1960-61.  I went to schools like Carteret School in West Orange New Jersey for first grade, Brookside School (now Montclair Academy) in Montclair, New Jersey for second and third grade, after a year at the defunct Woodward School for Boys in DC, Sidwell Friends in Washington D.C. for 5th and 6th grade, College du Leman in Geneva, Switzerland for 7th through 9th grade, Phillips Exeter Academy for 10th through 12th grade.  It is patently obvious to me that the resources that I received in education at Carteret, Brookside, Sidwell Friends, College du Leman, and Phillips Exeter were far beyond what a public school student in a midwestern town like Toledo where I live gets even today.  My parents were fortunate enough to be able to afford those places and persistent enough to overcome the profound resistance at the elementary school level in the early to mid-60’s (and lesser resistance overseas and at Exeter (at Exeter their was significant resistance to it just going coed) to allow black kids to sit in the same private classrooms in the North as similarly situated or better situated privileged white kids – let alone a kid of color coming from lesser means.

At each of those places, I was either the one integrating the class/school or one of the first few to come there in the first set of numbers.  My prospects for achievement were put on a higher path.  My father’s comment to me was that the best option he could do in his generation was to go to Morehouse College.  When it came time for me, the best options for me were broader – why?  Because of the effort to change the shape of that river so that someone who has never been allowed in might seek his chance.

When I had an interest and went to a meeting of the computer club at Exeter and found the guys there to be assholes that I did not like, was my turning away lack of persistence or was I compensating for some fundamental inadequacy because I was black or was I only seeking my bliss in a place where I could seek my bliss at many levels?  Maybe I did not persist because I did not have in my background that idea that the only way to have success in America was to be in the sciences that some of my Asian-American friends said was inculcated in them by their parents.  Being in science did not mean enough to me.  Maybe when I took Freshman Geology 101 (Rocks for Jocks) at Harvard I should have followed that interest. But, I had never seen a geologist in my family or had one in my experience.  Maybe geology did not have enough meaning for me.  So I went to economics. I am not Larry Summers but so what? Is my satisfaction with my experience to be ignored or found irrelevant as the work of Sander appears to do?

At Harvard College, Yo Yo Ma was in my Freshman class as was Bill Gates.  Does the presence of Yo Yo Ma mean I would be plagued by a sense of inadequacy by my lack of cello playing skills?  Does the presence of Bill Gates mean that I would be plagued by a sense of inadequacy by my lack of having started Microsoft in college?  What about the Religion class where I wrote a paper on Marx and Freud and could get out so many books in the library that had millions of them and just explore them?  What about the pleasure with that experience and the growth that gave me?

Resistance to efforts to change the shape of that river is nothing new in this country.  I tell every high school senior to apply to Harvard College.  Why? Because Harvard College can accept anyone they want.  And the experience at Harvard is a tremendous experience.  Very few do apply notwithstanding my encouragement.  Were they discouraged (as was I) by their high school college counselor?  That schools with higher rankings like in  the Ivy League are more willing to take a risk on an interesting candidate than schools of lesser reputation is a good thing, no?  I can not think of the number of alumni who are white who have told me they felt they did not deserve to get into Harvard and appreciate the school allowing them in.  Others have thought I did not deserve to get in (“You took my son’s place!”).  Who knows what I deserve – but should I be allowed to seek the opportunity and could Harvard be thinking about the need to have a class that had many kinds of people beyond Science, Humanities, or Social Science.  They could fill 100 per cent of their class with anyone of those three groups – and still have applicants to reject.

Been teaching at law schools for nearly 12 years now in the North and the South and never seen any significant numbers of minorities.  Before that went to elite schools (Harvard College, Harvard Law School, and Harvard Business School) and never saw any significant numbers of minorities.

After Business and Law School, I applied for a job at Bain and a job at Boston Consulting Group and did not get an offer.  I know another black guy applied to Boston Consulting Group around that time and asked “Have you ever hired a black person as a consultant?”  Apparently not at that time.  Were all the black candidates not good enough?  Suddenly this guy gets an offer there.  Lived in Boston during the whole busing thing and knew plenty of black bankers who talked of what they confronted in the big banks.  Was that stuff all their imagination or was it their lack of preparation?  Remember one guy set aside time every Sunday to keep on keeping on by studying banking.  He was Treasurer for the City at one point finding his way to power through politics as well as his private sector work.  He found his path – more power to him.

The research is seeming to say that because there is not equality of result there should not be an effort to use affirmative action to encourage further equality of opportunity.  But given the disparities of preparation levels across communities that we tolerate and encourage in this country, I am hardly surprised that there is not equality of result.  Equality of result has never been the point at least for me – it has been about integrating America and eliminating these racial caste system.

Wanted to come back to something Thomas Sowell said about Derrick Bell.  Stanford’s effort to integrate its faculty through hiring Bell as the “best available” should be applauded not derided.  Bell’s humility about himself is now turned against him.  That there would be a reaction by the students is not surprising (see the reaction of the fans to Jackie Robinson coming on the field).  That Stanford undermined Bell by doing a review class behind his back says more about Stanford’s faculty’s mixed motives in integrating (faculty are creatures of their time).  No doubt it was a difficult “learning by doing” moment for Stanford and Bell in a space where no black had been permitted to tread before – but all you need do is look at “Mad Men” and see the culture shock this must have been for white students to be taught by a black man.  Even today, I suspect that numbers of law students (whatever their color) may never have had a professor of color (other than a sports coach) in their educational careers.

I can not remember a period in my life when there has not been hammering on blacks by some significant segment of this country.  Dismissal of Bell’s writing as compared to the “good” writing amazes me.  Bell is a product of being on the line of that culture shock his entire life – the color line between where there are large numbers of blacks and no blacks.  To paraphrase A. Phillip Randolph, when Bell “walked in a room his people walked in a room” with all the attendant baggage falling on him. I read Sowell and I read Bell and they both seem to come from two strains of black intellectuals flowing back to places like Booker T Washington and W.E.B. Dubois. Sad to see Sowell not being able to contain himself and speaking ill of the dead.  I find Sowell more insecure about who he is then Bell ever seemed to be.

As we all sit here and go through the Trayvon Martin thing, I was reminded by the mother of Ahmadou Diallo that we have been here before, as we have been with Sean Bell.  That mother noted that part of the mechanism used against Ahmadou Diallo was to trash him (called a street-peddler) just as we have seen being done about Trayvon Martin now.  She remembered the enormous protest then and how it died down and then over and over this killing of young black men.  She pointed out that, just like Trayvon Martin’s parents, she had to  go around the country and reclaim her son’s story – that he was working his way through college and being a street peddler.

While at Harvard College, I was a door-to-door salesman in the summer selling dictionaries in Texas and Arizona.  Most of the neighborhoods were predominantly Hispanic with a few blacks but once in a while I worked in an all white area (OK maybe one black family).  Same sales talk in each neighborhood.  Black guy walking with a sample case from 8h00 am to 9h30 pm with a peddler’s license working his way through Harvard College.  In white neighborhoods, I can not tell the number of times that the police were called on me.  I would show my papers and after a while the police would say “So you’ll be working through here for the next couple of days?” and we had a cordial relationship.  The craziest day was when I was not selling and was following another black guy to improve my sales technique.  He was working in an all-white neighborhood and now it was TWO black guys coming to the door with sample cases.  Following our training.  First house, white lady came to the door.  Eyes as wide as possible and said, just a second and went in.  We knew the police were going to be called and sure enough two minutes later four cop cars pull up.  First cop gets out of his car, “So you’ll be working around here today?”  “Yup.”  All day long, cops being called in that white neighborhood and we showing our ID.  Doing the quintessential American up from nothing thing — door to door on straight commission.  Around 8h00 that night, first cop drove by and said that as it was getting dark might be good for us to call it a day (was this a neo-sundown towning thing?  Maybe.  As I look back I think the cop was worried about us getting hurt by someone but maybe there was an informal rule about blacks preferably not being in this white neighborhood after dark that we just did not understand).  So we did home – shortening our hours – as we were to work  normally until 9h30 pm according to the 80 hour a week schedule.  We lived in a blue and white trailer with two white guys doing the same thing that summer in Tempe, Arizona. Called ourselves the Tempe Two Toned Trailer Truckers.  Trailer trash for some going to Harvard College.

Here is a link to something I saw on Hannity Thursday night

Daryl Parks: Zimmerman is a vigilante

Watch This Video:


in which a lawyer for Trayvon Martin’s family named Darryl Parks speaks.  At around 7 minutes 58 second to 8 minutes 18 seconds Parks responds to Sean saying “African-Americans understand…” talking about the case.  It made me twinge as in those words he just said he acknowledged the superstructure in this country was there and was not taking issue with it but was insisting on justice in this case.  I found the acknowledgement such a profound statement by Parks about the nature of this country and of what he was seeking to do in seeking justice for this young black man.

I see Sanders work as acknowledging the superstructure – but, unlike Bell and others – not fighting it.  Screw him.