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Black law students are hurt, not helped, by affirmative action, professor claims

By Diane Curtis

Affirmative action sets up many black law students for failure because it places them in schools where they cannot compete academically, according to a study by a UCLA law professor who says ending racial preferences at law schools would likely increase the number of African-American lawyers.

Richard Sander

What happens, says Richard Sander, is that black students who get preferential treatment enter law school with much weaker grades and Law School Admission Test scores — the best predictors of law school success — than white students. This “mismatch” leads to black students dropping out at greater rates than whites and having more trouble passing the bar exam.

“Blacks are the victims of law school programs of affirmative action, not the beneficiaries,” Sanders writes in “A Systemic Analysis of Affirmative Action in American Law Schools,” which will be featured in this month’s Stanford Law Review.

“. . . The number of lawyers produced by American law schools each year and subsequently passing the bar would probably increase if those schools collectively stopped using racial preferences.”

The effect in the job market “is overwhelmingly negative for blacks in middle- and lower-ranked schools,” Sander wrote. “It is a smaller penalty for students at schools near the top of the status hierarchy, and it is nearly a wash — perhaps even a small plus — for students at top-ten schools. But nowhere do I find that the prestige benefits of affirmative action dominate the costs stemming from lower [grade point average].”

Reaction to the study was swift.

Yale Law School Dean of Admissions Megan Barnett said she doesn’t think the study applies to Yale because “all Yale law students are really exceptional. We get the most talented students in the country so they all end up very successful after they graduate.”

Affirmative action has a number of virtues,” said University of Michigan Law School Dean of Admissions Evan Caminker. “There are virtues in making sure people who graduate from elite academic institutions and are trained to be leaders of society represent what the community is like that they will be living and working in.”

Stanford Law School Dean Larry Kramer issued a statement that emphasized the school’s continued commitment “to diversity in recruitment and admissions of the student body. The faculty and staff of the school share complete confidence in the qualifications of each of our students and value the contributions that their differing backgrounds and perspectives, as well as their intellectual accomplishments, bring to our community.”

Richard Lempert and David Chambers of the University of Michigan, Timothy Clydesdale of The College of New Jersey and William Kidder of the Equal Justice Society issued a rebuttal that will appear in an upcoming Stanford Law Review. Although they did not disagree about the poorer performance of blacks compared to whites, they said that factors other than grades contributed to the gap. “Something about the atmosphere of law school exacerbates the entering educational gaps of minority and other atypical law students,” the rebuttal said.

The authors described Sander’s forecasts as “irresponsible” and said the document was based on “a series of statistical errors, oversights and implausible (and at times internally contradictory) assumptions.” They predicted that a ban on racial preferences would decrease the African-American presence at the top law schools from its current 7 to 12 percent to 1 to 2 percent. Instead of applying to lower-tier schools, as Sander assumes, many black students would not apply to law school at all. Ultimately, the authors said, the number of black law school students could drop by a quarter.

Sander calls Lempert’s rebuttal “thin,” but he is not complaining about the Weblog buzz and conversations in law school corridors his study has engendered. “Once some honest conversation about affirmative action practices is underway, it will be much easier to talk about constructive solutions.”

Sander, who is white, said he has become increasingly concerned about “a sort of code of silence” around affirmative action. The former husband of a black woman and father of a biracial son, Sander has long been active in civil rights and supportive of the goals of affirmative action. One of his first research efforts at UCLA was a sympathetic analysis of academic support as a way to help affirmative action beneficiaries.

But he said he is distressed by the “unhealthy” absence of a critical examination of racial preferences, particularly at public California universities that are supposedly bound by Proposition 209, which banned racial preferences in admissions. The terminal illness of his 19-month-old daughter, he said, gave him a sense of “the evanescence of life,” and he decided the research was too important to continue putting off.

For his study, Sander primarily used grades, test scores and bar exam results collected by the Law School Admission Council. The data came from 27,000 students who entered 160 law schools in 1991. He also used data from a study of his own that began looking at students who entered law school in 1995. Among the findings:

  • After the first year of law school, 51 percent of black students are in the bottom tenth of their classes compared with 5 percent of white students. About two-thirds of black students are in the bottom fifth of their classes. Without racial preferences, 14 percent fewer black students would be admitted to law schools, but those admitted would be more successful.
  • About 19 percent of blacks and 8 percent of whites drop out of law school. If preferences had been abolished, the number of black attorneys emerging from the Class of 2004 would have been 8 percent higher.
  • Blacks are nearly six times as likely as whites to fail the bar exam on multiple tries. Without racial preferences, the number of black students who would pass the bar exam on the first try would likely increase by 22 percent. 
  • Of all students who started law school in 1991, 48 percent of blacks and 78 percent of whites graduated, took the bar and passed it on their first attempt. Without racial preferences, 74 percent of black students would be likely to make it from the first day of law school to passing the bar on the first try because fewer unqualified students would be admitted to law school, there would be less attrition and academic performance — the principal predictor of success in passing the bar exam — would improve.

Sander says the “credentials gap” between blacks and whites puts blacks at a disadvantage from the start. “Students who stumble at the beginning of a course often become progressively more confused as the semester wears on,” Sander wrote.

“. . . In a less competitive school, the same student might well thrive because the pace would be slower, the theoretical nuances would be a little less involved and the student would stay on top of the material.”

While his goal was not to offer a solution, Sander said university officials might consider an action short of an outright ban on racial preferences. Instead, he suggested, the elite law schools could reduce the percentage of students who are admitted on criteria other than academic excellence from the current 8 percent to about 4 percent. That way, the elite schools would maintain diversity, train some of the nation’s future leaders and allow the lower-tier schools to enroll students without using race-based preferences.

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