June 29, 2003

RANDY BARNETT, WRITING ON The Volokh Conspiracy blog, quotes a fascinating statement from an African-American Stanford Law professor who complains that affirmative action has demeaned his accomplishments:

In the current Affirmative Action environment, blessed by our Supreme Court this past Monday, there is nothing that any American of African descent can do that can separate himself or herself from the unspoken accusation that he or she is the beneficiary of more than they deserve.

Let me illustrate my point. I am willing to bet that I am the only member of this list who feels compelled to put his standardized test scores and National Merit award on his CV. Why do I do this? For those of you who do not know me personally, it is not a matter of braggadocio. Every September I have to deal with nearly 60 prima donna first year law students whose first and only (initial) reaction to my skin color is that they have been cheated out of a “real” Contracts professor, and are stuck with an “Affirmative Action” instructor. Many of them come around when, as some “gunners” often do, they look up my CV and find that I have outscored virtually every single one of them on the test around which they have centered their lives, the LSAT.

The pain and embarrassment that Marcus Cole feels is real, and is certainly an unintended consequence of affirmative action programs.

I was moved by Mr. Cole’s words, and planned to cite them as an example of how affirmative action can hurt people it is intended to benefit.

But then I took the time to respond to Mr. Cole’s invitation to look at his CV. Note that he’s teaching at Stanford Law: US News ranks them the #2 law school in the country; I don’t know if I’d put them that high, but there’s no question that they’re in the top five, and that it’s one of the hardest places to gain admittance either as a student or a professor. Nearly all of Stanford’s faculty graduated at the top of their classes from a top-five law school; the recent hires nearly all have two or more of a Supreme Court clerkship, a substantial publication record, experience teaching at another law school, or a second graduate degree.

Mr. Cole’s LSAT scores are in the 98th percentile: above average, but hardly spectacular, and at least a quarter of the Stanford Law students do as well or better. Mr. Cole graduated Northwestern Law, a good, but not top-ten, law school in 1993, and apparently was not in the top 10% of his class, as he does not list “Order of the Coif” or honors on his resume above “Dean’s List.” He was not on the main law review at Northwestern. He had a reasonably prominent (but, again, not top tier) Eighth Circuit clerkship. When he was hired in 1997, after three years at a top Chicago law firm, his only publication was a book review in a second-tier student law journal at Northwestern, and he does not appear to have had any law school teaching experience. Mr. Cole may be an excellent teacher, and may have realized the promise that Stanford saw in him with his post-1997 work (though his publication record of five scholarly law review articles (none in top journals) in six years seems decidedly below average for a tenured Stanford Law professor). I promise you that Stanford Law will never hire a white law professor with the resume that Mr. Cole had in 1997. (When I considered entering teaching that same year with a better resume–and by better resume, I mean better law school, better GPA, better clerkship, and marginally better publication record (and even a better LSAT)–I knew that I had next to no hope of getting employment at a top thirty law school, much less a Stanford. Please note that I am not claiming that my resume is worthy of a Stanford Law professorship–it’s not, under normal circumstances.)

Mr. Cole may not be happy that he is stigmatized as a professor who was hired because of affirmative action. He may honestly believe that affirmative action makes African-Americans worse off. But he’s kidding himself if he thinks he wasn’t hired because of affirmative action. I’d say that he personally is a net winner under affirmative action policies, and that it is perfectly appropriate to point out that he wouldn’t have had the opportunity to win teaching awards at Stanford Law if that institution had applied the same hiring criteria to him that they apply to white males.