Mismatch Theory and Class-based Affirmative Action: Brief Amicus Curiae for Richard Lempert in Support of Respondents in Fisher v. Univ. Texas, No. 14-981 (2015)

Abstract

This is an amicus brief filed in conjunction with and on behalf of the respondent in Fisher v. University of Texas et al., (2015). It responds to amicus briefs filed by Richard Sander and Richard Kahlenberg. Subject to the word constraints imposed on briefs amici by the Supreme Court, it reviews the empirical evidence relating to arguments by Sander that academic mismatch means affirmative action harms those minorities it is supposed to benefit and by Kahlenberg to the effect that class-based affirmative action together with proactive outreach, will allow colleges and universities to achieve the same racial diversity that can be achieved through race-conscious affirmative action without explicitly considering race. The brief shows that key studies which Sander and Kahlenberg cite in support of their claims do not bear the weight put on them, and in some cases lessons their authors draw from them positively mislead. Additional evidence and arguments are also offered to dispose of Sander's and Kahlenberg's claims. The Sander and Kahlenberg briefs are available at the Supreme Court and, most likely, other venues. Readers are encouraged to read these briefs to better judge the arguments made in my brief.