Does Affirmative Action Reduce The Number Of Black Lawyers?

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.

UPDATE [11/5/04]

The Wall Street Journal has an article today whose conclusions are revealed by its title, “Critics Assail Study of Race, Law Students.”

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.

Say What? (20)

  1. James November 4, 2004 at 4:43 pm | | Reply

    It will be interesting to review Sander’s methodology when the actual law review article is released. Based on the summary John has provided, several issues come to mind:

    a. How useful is to compare percentages when their is a huge difference in the actual population of white and black students. For example, even if a law school were completely white, by definition, the maximum number of white law students in the bottom tenth of the class would be 10%. If a law school has a small percentage of black students, which most do, the percentages could easily appear skewed. Consider this illustration, if a law school had two black students and one graduated at the very top of his class and the other graduated at the very bottom, the percentage of black students in the bottom (or top) tenth of the class would be 50%. How accurate a representation is this?

    b. How, exactly, are higher grades in less competitive law schools correlated to bar exam passage rates and how do these relationships vary intra-race. In other words, is the bar exam passage rate (bepr) of the top quartile of white law students at Boston College higher than the bepr of white law students at Harvard.

    Before legislators, or blog hosts for that matter, “seize” upon Sander’s study to put an end to racial preferences these and a multitude of other questions should be reviewed and discussed in the context of actual evidence.

  2. La Shawn Barber's Corner November 9, 2004 at 5:45 pm | | Reply

    The Eleven Percent

    So President Bush managed to garner 11 percent of the “black vote”, up from 8 percent from four years ago. My opinion? I think it’s a good sign. While Bush didn’t need black voters to win this election, I’m sure he appreciates it nonetheless.

    I…

  3. Chetly Zarko November 11, 2004 at 9:26 pm | | Reply

    John,

    Thanks for the coverage. This study is important for variety of reasons, not the least of which is that scientific movement on this issue is one legitimate way a future Supreme Court could avoid stare decisis in overturning Grutter (Grutter is based on the “deference” to the false science presented in Gratz regarding “educational benefit”). The scientific process is itself open to revision of conclusions based on new evidence – ergo, it would be possible to revisit Grutter, this time as Sander suggests potentially with black plaintiffs. We need more work like Sanders during the next dozen years to lay this groundwork.

  4. joannejacobs.com November 12, 2004 at 2:18 am | | Reply

    Mismatched

    For blacks graduating from middle-rank law schools, racial preferences are costly, writes Rick Sander, a UCLA law professor and visiting Volokh blogger who’s relying on national data on young lawyers’ education, jobs and pay. Black students enter law s…

  5. Robert Speirs November 12, 2004 at 11:07 am | | Reply

    What’s the bar passage rate for black law gradutes? Does this vary with the level of law school they attended? How long before someone argues for affirmative action in bar passage? I’m just reading “The Bell Curve” and the blindingly obvious but totally ignored elephant in the livingroom seems to be that the IQ of black law students is significantly lower than that of white law students. And IQ should significantly correlate with bar passage. Where is this logic flawed? Or does no one dare acknowledge it? How “compassionate” is it to let students into law school who are unlikely ever to pass a bar exam?

  6. Number 2 Pencil November 14, 2004 at 4:47 pm | | Reply

    When AA ceases to be a program, and becomes a religion

    Unsurprisingly, John of Discriminations is all over the soon-to-be-published study by Dr. Richard Sanders, of UCLA Law School, which promotes the provocative idea that affirmative action for black law students is actually disadvantageous to them. Dr. S…

  7. John Lesko November 20, 2004 at 2:13 am | | Reply

    Just to respond to Robert’s post: whatever the overall IQ variations may be between various ethnic groups, the point Sanders is making is that if individuals (from any group) attend schools where they’re evenly matched with fellow students, they’re more likely to thrive.

    Even if American asians, for example, have an overall “IQ” advantage over American whites, there will still be many American whites with equal or higher IQ’s than a given asian. If the school admits students on a merit-based, race-blind system (looking at academic achievement, etc. as well as test performance), then there should be no real discrepancy at any school in terms of overall ability and ultimate performance.

    (In answer to your specific question, Sanders’ position, which seems about right, is that ALL students at the bottom of the class tend to do poorly on the bar exam, regardless of ethnicity, and people who do better in their class do better on the bar. Since LSAT and GPA tend to be good predictors of law school performance, it would follow that admitting people purely on merit would probably lead to better minority performance on the bar.)

  8. John Lesko November 20, 2004 at 2:39 am | | Reply

    Also, for James — I believe that the way Sanders compares percentages, the absolute numbers aren’t that relevant.

    (In terms of your hypothetical, the 50% representation would of course be completely accurate — for that school. However, he’s also looking at law schools across the board, and the problem is that minority students are consistently overrepresented in the lower end of the class — which is what you would expect if you applied lower entrance standards.)

    As for your second question, I would imagine that the top students at Boston College do in fact outperform the weaker students at Harvard, regardless of ethnicity. (Every year, about 10% of the students at top schools fail the bar exam. The bar passage rate is often just about as high at schools like Boston College.) Sanders makes the explicit point that law school performance is a much stronger correlate of bar passage than ethnicity (which probably has no correlation once grades are controlled for.)

    P.S.: Just to note, I also find Prof. Sanders’ study interesting, and I appreciate you posting a summary here. I’ll keep an eye out for future updates.

    P.P.S.: Did you catch how the L.A. Times entitled their article on Sanders: “Professor assails anti-bias measures”?

  9. sandra malone November 28, 2004 at 4:35 pm | | Reply

    I’m not asking that no research be done on affirmative action. But, why focus on only blacks, as Sander did, with implications for young people of African descent-including his own? Implications that would mean his child is not regarded as an individual, but as a group statistic. Sander’s group study suggests that black students should lower their aspirations. Don’t aim too high. Sander aggressively promotes this message on the media circuit. Why a parent of a part-black child would do that, one can only speculate.

  10. sandra malone November 28, 2004 at 4:35 pm | | Reply

    I’m not asking that no research be done on affirmative action. But, why focus on only blacks, as Sander did, with implications for young people of African descent-including his own? Implications that would mean his child is not regarded as an individual, but as a group statistic. Sander’s group study suggests that black students should lower their aspirations. Don’t aim too high. Sander aggressively promotes this message on the media circuit. Why a parent of a part-black child would do that, one can only speculate.

  11. sandra malone November 28, 2004 at 4:35 pm | | Reply

    I’m not asking that no research be done on affirmative action. But, why focus on only blacks, as Sander did, with implications for young people of African descent-including his own? Implications that would mean his child is not regarded as an individual, but as a group statistic. Sander’s group study suggests that black students should lower their aspirations. Don’t aim too high. Sander aggressively promotes this message on the media circuit. Why a parent of a part-black child would do that, one can only speculate.

  12. sandra malone November 28, 2004 at 4:35 pm | | Reply

    I’m not asking that no research be done on affirmative action. But, why focus on only blacks, as Sander did, with implications for young people of African descent-including his own? Implications that would mean his child is not regarded as an individual, but as a group statistic. Sander’s group study suggests that black students should lower their aspirations. Don’t aim too high. Sander aggressively promotes this message on the media circuit. Why a parent of a part-black child would do that, one can only speculate.

  13. John Lesko November 28, 2004 at 7:35 pm | | Reply

    Hey, Sandra.

    I agree that the study should’ve focused more on URM’s generally.

    But I think it’s really affirmative action, as currently practiced, that treats minoritites as members of a “group statistic”, and not as an individual.

    Sanders study really just affirms the idea that people should be treated as individuals, and not as members of a group.

    And what it really suggests, I would argue, is that ambitious black kids, like ambitious white kids and hispanic kids, should aspire to excel academically prior to law school, so they can continue to do so in law school and beyond. (Sanders explicitly states that this isn’t a racial issue — it’s a numbers issue. All students with low entrance numbers generally do poorly relative to their classmates, regardless of race.)

    If anything, I think Sanders just wants to ensure that his child ends up somewhere where his qualifications, grades and scores would normally put him, so he can thrive there.

  14. sandra malone November 28, 2004 at 4:35 pm | | Reply

    I’m not asking that no research be done on affirmative action. But, why focus on only blacks, as Sander did, with implications for young people of African descent-including his own? Implications that would mean his child is not regarded as an individual, but as a group statistic. Sander’s group study suggests that black students should lower their aspirations. Don’t aim too high. Sander aggressively promotes this message on the media circuit. Why a parent of a part-black child would do that, one can only speculate.

  15. sandra malone November 28, 2004 at 4:35 pm | | Reply

    I’m not asking that no research be done on affirmative action. But, why focus on only blacks, as Sander did, with implications for young people of African descent-including his own? Implications that would mean his child is not regarded as an individual, but as a group statistic. Sander’s group study suggests that black students should lower their aspirations. Don’t aim too high. Sander aggressively promotes this message on the media circuit. Why a parent of a part-black child would do that, one can only speculate.

  16. sandra malone November 28, 2004 at 4:35 pm | | Reply

    I’m not asking that no research be done on affirmative action. But, why focus on only blacks, as Sander did, with implications for young people of African descent-including his own? Implications that would mean his child is not regarded as an individual, but as a group statistic. Sander’s group study suggests that black students should lower their aspirations. Don’t aim too high. Sander aggressively promotes this message on the media circuit. Why a parent of a part-black child would do that, one can only speculate.

  17. sandra malone November 28, 2004 at 4:35 pm | | Reply

    I’m not asking that no research be done on affirmative action. But, why focus on only blacks, as Sander did, with implications for young people of African descent-including his own? Implications that would mean his child is not regarded as an individual, but as a group statistic. Sander’s group study suggests that black students should lower their aspirations. Don’t aim too high. Sander aggressively promotes this message on the media circuit. Why a parent of a part-black child would do that, one can only speculate.

  18. Anonymous January 14, 2005 at 11:09 am | | Reply

    I believe people who disagree with affirmative action has not or don,t know why

    it was bought into existence. I am a black

    American man. when jim crow laws that kept

    blacks where they wanted them to be with all

    the hatred for these people who was nothing

    and as black men who fought and died for a

    nation who look at them as nothing and today

    has never stated to these men who died in the

    wars ww1 ww2 korea Vietnam which I am a disabled veteran of the air force of this great nation and the reason I will not watch the movie private ryan because it did not tell the story of veterans who died for this

    nation in all black unit who died in Italy,

    france, Germany this nation of all brances

    of service and the Airman out Tuskeekee

    who flew along side of the bomber planes

    and they did not loose a single plane. I am

    saying this to say I know that black people

    are very intelligent we have advance and will

    continual advance I do go along with the

    black lawyers .If they made it through law

    school these young people of the today can

    make it to they just need to be determine and

    I am wondering when it comes to law school bar examines are they given test different

  19. lefty February 13, 2005 at 10:04 pm | | Reply

    This story is too good to be true. This guy is completely, totally, statistically inept just like Stephen Bainbridge and Larry Summers.

    Where the hell’s my Dom Perignon?

  20. Sans rhetoric September 16, 2005 at 7:07 pm | | Reply

    Actually Larry isn’t statstically inept. While it’s true females on average out-preform males in science and maths, males fall more commonly at the extreme end’s of the bell curve, i.e at any given highschool most of the top mathematics students will probably be female, but the top student will probably be male. This, Larry argues, explains underpreformance because scores at the extremes of the Bell Curve are required for highly succesful careers as elite mathematicains, indeed a score at the right of the bell curve is needed to become a mathematician or physical scientist, from memory mathematicians and physcists have the highest IQ of any professional group ( philosophers come second!). That Larry was fired for pointing this out is wrong. Yes it was a foolish and divise thing to do when IQ is such a flashpoint, and he shouldn’t have done it, but no one should be fired for pointing out a fact.

    When you think about it there is no a-priori reason to believe that gender doesn’t influence mathematical and scientfic ability, so why is everyone getting so uptight about it. The obvious and universaly known answer is that it’s a political issue. Politics should not effect science.

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