Richard H. Sander, a law professor at UCLA, is about to publish an article in the Stanford Law Review , “A Systemic Analysis of Affirmative Action in American Law Schools,” that is already causing an outraged buzz in legal academia. Sander, who has graduate degrees in law and economics and heads UCLA’s Empirical Research Group, which helps law professors perform statistical analyses, argues that racial preferences work to the detriment of black law students by placing them in schools where they do poorly.
According to an article in today’s Chronicle of Higher Education, Prof. Sander conducted a systematic study of the bar passage rates of the 27,000 law students between 1991 and 1997. Among his findings:
- After the first year of law school, 51 percent of black students have grade-point averages that place them in the bottom tenth of their classes, compared with 5 percent of white students. “Evidence suggests that when you’re doing that badly, you’re learning less than if you were in the middle of a class” at a less-prestigious law school, Mr. Sander says.
- Among students who entered law school in 1991, about 80 percent of white students graduated and passed the bar on their first attempt, compared with just 45 percent of black students. In a race-blind admissions system, the number of black graduates passing the bar the first time would jump to 74 percent, he says, based on his statistical analysis of how higher grades in less competitive schools would result in higher bar scores. Black students are nearly six times as likely as whites not to pass state bar exams after multiple attempts.
- Ending affirmative action would increase the number of new black lawyers by 8.8 percent because students would attend law schools where they would struggle less and learn more, and earn higher grades.
- With the exception of the most-elite law schools, good grades matter more to employers than the law school’s prestige.
Critics, of course, complain that these findings are “unfounded” and even “inflammatory.”
Some critics worry that legislators who oppose affirmative action will seize the report as evidence to support efforts to end racial preferences. And they are concerned that it could discourage black students from applying to law school.
I would hope that legislators would use, even “seize,” this evidence and put an end to racial preference, even though I think it a sad commentary on our times that some people still need “evidence” in order to conclude that discriminating on the basis of race is bad.
For me, the article was all but spoiled by an egregious falsehood assserted by author John Hechinger:
Usually, social conservatives decry preferences because of perceived unfairness to white applicants.
First, not everyone who opposes racial preferences is a social conservative; and second, and far more important, most critics who oppose racial preferences do so not because of “perceived unfairness to white applicants” but because we believe that discrimination on the basis of race violates a fundamental American principle (that every individual has a right to be judged “without regard” to race or religion) and is hence inherently unfair, unfair to everyone and not just “white applicants.” Hechinger’s statement is akin to saying liberals believe in due process because its absence is unfair to criminals.
Otherwise, the article provides what appears to be (I haven’t read the Sander study yet) a fair summary of Sander’s argument:
The study found a stark achievement gap between blacks and whites throughout the nation’s law schools. Close to half of the black law students ended up in the bottom tenth of their class. African-Americans were more than twice as likely as whites to drop out — and more than six times as likely to fail state bar exams after multiple tries.
Prof. Sander argues that the reason for this outcome stems from a “mismatch” between the credentials of the black students and the institutions they attend. Because they have weaker credentials, he says, the students achieve lower grades. And since grades are strongly correlated to success on the bar exam, he argues, these students failed the bar in higher numbers.
He argues that students who perform at the bottom of their classes at more selective colleges often are confused by tougher material taught at speeds that challenge higher-achieving classmates. At less selective colleges, the material tends to be simpler, so these students can pull into the middle of their class and pick up the baseline information needed to pass the bar exam. And he says there is a “cascade effect” on every tier of law school, from Harvard and Yale down the ranks, ensuring that, at each level, blacks perform worse and are less likely to become lawyers.
By the study’s tally, 86% of blacks currently admitted to law schools would still gain admission without preferences. But they would attend less competitive schools, where they would compile stronger records. The remaining 14% — 500 to 600 a year — would likely drop out or fail the bar.
The criticism that is reported here strikes me as unusually week. Thus Prof. Richard Lempert of the University of Michigan law school
says the study makes a number of unreasonable assumptions. Without affirmative action, many African-Americans wouldn’t attend law school at all, he says. The study assumes that black applicants would merely go to a less selective school, but Prof. Lempert says many would be unable or unwilling to go to such schools because they might be so far away that the students wouldn’t even consider them.
He also notes that, although there is a correlation between grades and bar passage, many other reasons explain blacks’ poor performance on the test. These, he said, include a documented “stereotype threat,” the tendency of minority groups to conform to negative stereotypes about their abilities.
Stanford will publish some critiques of the Sander study along with Sander’s article, or in a subsequent issue of its law review. Perhaps those critiques will be stronger than the ones like Lempert’s summarized here.
UPDATE II [6 Nov. 2004]
Prof. Sander will be guest-blogging on Volokh this week. For more information about him, go here.