BOOK REVIEWS


Mismatch? Does Affirmative Action Help or Hurt Students?


Reviewed by Jeremiah Newhall, Esq.


Turning the affirmative action debate on its head, “Mismatch” argues that race-con- scious college admissions actually hinder minority education by tossing unready stu- dents into competition with classmates far better prepared. Dubbing this hindrance “the mismatch effect,” the authors con- clude that a lack of preparation has mini- mal impact in some fields, such as literature or politics, but severely penalizes students in others, such as mathematics or chemis- try. By admitting unprepared students, the authors contend that colleges push these students away from the science and math- ematics and into the study of the arts and social sciences.


That distinction makes intuitive sense. If you arrived at college having never read Herman Melville’s novels or short stories, and began your studies by writing an es- say on “Bartleby, the Scrivener” (as I did), then you could probably do reasonably well just by reading the story despite your unfa- miliarity with the author. But if you enrolled in advanced calculus, having never before studied beyond high school algebra, then you would find yourself hopelessly out-


Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It


by Richard H. Sander & Stuart Taylor, Jr.


Basic Books; 2012; 348 pp.; $28.99


classed—and graded against an unforgiv- ing curve. No wonder, then, that smart but less-prepared students of any color would opt for courses in which their lack of prepa- ration is less dramatic. Yet is pushing these students towards studying the arts and so- cial sciences at better colleges than they could otherwise attend really a disservice to them or their classmates? The authors as- sume that it is, but they don’t explain why. But the book’s second critique, includ- ed almost as an afterthought, is the more damning of affirmative action in college ad- missions: Mismatch cites compelling statis- tical evidence that the applicants most like- ly to lose admission to less-prepared “di-


36


verse” students are Asian-Americans. Col- leges and universities justify race-conscious admissions programs in part by a desire to ameliorate the lingering ills from our na- tion’s tragic legacy of racial oppression. But that goal does not square with favoring one persecuted group over another, and the federal reporters are littered with infamous cases of discrimination against Asian-Amer- icans.1


These arguments are not new, but af-


ter the publication of Mismatch they have gained new traction, most notably with the Supreme Court. Just this term, Justice Clar- ence Thomas in his concurrence in Fisher v. University of Texas at Austin cited the same scholarship relied upon by Sander and Tay- lor to conclude that race-conscious admis- sions have no real benefit.2


And although in


Thomas’s words, “it does not, for constitu- tional purposes, matter whether the Univer- sity’s racial discrimination is benign,”3


that


is a legal fiction. Of course it matters to the justices whether affirmative action helps or hinders education. The other justices did not reach the issues with which Thomas grapples in Fisher, but they will soon: the Court has already granted certiorari in an- other affirmative action case.4


Kinder, Gentler, More Effective: Cross-Examining Doctors


Readers who


would better understand the arguments the Court will hear next term would do well to pick up Mismatch. The recommendation carries a caveat:


readers should cast the same skeptical eye on Mismatch as on an advocate’s brief. The authors are not two Detectives Friday, con- tent with “just the facts.” With the facts as set dressing, the authors thrust their own conclusions onto center stage. But that de- cision enhances the book, spurring readers to challenge or accept the authors’ conclu- sions, as in a free-wheeling conversation with opinionated but well-informed friends. For myself, though I enjoyed the book, I


cannot agree with its conclusion that racial diversity is a net loss for all students. I chose my own alma mater, Occidental College, partly because it emphasized a diverse stu- dent body and faculty. I knew that a politi- cal science education would not serve me half as well without diverse classmates. But Sander and Taylor are right that race- neutral standards matter, too. Consider the example of Occidental’s most accom- plished former student, who famously re- ceived a poor grade in political philosophy from Professor Roger Boesche. The student protested that the grade was unfair, but Professor Boesche told him: “You’re smart, but not working very hard.” When I en- rolled at Occidental many years later, Pro- fessor Boesche hadn’t softened; he gave me the same poor grade with the same ad-


THE VERMONT BAR JOURNAL • FALL 2013 Reviewed by C. Creek Kelsey, Esq.


All highly-specialized expert witnesses pose cross-examination challenges. But medical doctors are among the most chal- lenging of all. Almost always they will know more about the specifics of relevant medi- cal matters than the challenging attorney. Dedicated to healing, highly-educated, they are typically trusted and held in high- regard by jurors, often more so than are lawyers. To top it all off, this “cards-stacked-in-


their-favor” witness, almost certainly will provide the fulcrum upon which the case balances, be it a causation defense or plaintiff’s damage claims. Fortunately, this practical guide is more


than up to the task. Whether newbie or veteran litigator, you can glean much from the orderly, specific, step-by-step template presented by the seven chapters. They start with how to level the playing field be- tween the attorney and the jury-popular physician and conclude with “How It Looks in Court.” The sections within each chap- ter fill in all the details, in each of the tem- plate’s steps. The cross-examining attorney must re- spectfully, knowledgeably, and with great precision, walk a hair-breadth line between effectively discrediting/nullifying the ex- pert’s testimony and discrediting/denigrat- ing the person or status of the witness him-


www.vtbar.org


vice. He was right. No doubt the first stu- dent, Barack Obama, benefited from study- ing politics with diverse classmates, as I did. But we both benefited from a favorite pro- fessor with tough standards, too. ____________________ Jeremiah Newhall, Esq., is an associate at the firm of Ellis, Boxer & Blake PLLC, where he represents clients in a variety of civil matters in state and federal court. He is a member of the bars of Illinois and New Hampshire.


____________________ 1


See, e.g., Korematsu v. United States, 323


U.S. 214, 215 (1944) (discrimination against Jap- anese-Americans); Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (discrimination against Chinese-


Americans). 2


2411, *20–21 (2013) (Thomas, J., concurring). 3


See Fisher v. Univ. of Texas at Austin, 133 S. Ct. Id. at *20.


4 Schuette v. Coal. to Defend Affirmative Ac- tion, 133 S. Ct. 1633 (2013) (granting certiorari).


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