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Too good to be true

By Goodwin Liu

Goodwin Liu

In June 2003, the Supreme Court held that affirmative action in law schools is necessary to cultivate diverse leaders for a diverse society. Now, a new study claims that the court was wrong on the facts. (See December Bar Journal, p. 1.) In a lengthy article published in the Stanford Law Review, UCLA law professor and economist Richard Sander argues that America’s law schools would produce more black lawyers by eliminating affirmative action than by preserving it. Sander’s counterintuitive thesis turns on the notion that affirmative action, by lowering admission standards, produces a “mismatch” between black students and their white peers.

The mismatch, he argues, causes blacks to earn lower grades, drop out at higher rates and pass the bar at lower rates than they would if they went to less selective schools. He predicts that although there would be fewer black law students without affirmative action, their higher grades and lower dropout rates would boost the total number of blacks who pass the bar by 7 percent.

At last, can we have our colorblind cake and eat it too? Probably not.

First, Sander’s conclusion flies in the face of the most basic tenet of economics: that people act rationally to maximize their self-interest. Affirmative action has been with us for 30 years. Is it really possible that cohort after cohort of talented black students, lured by the siren of affirmative action, have incurred large debts and forgone other opportunities in order to attend top law schools — all on a misguided expectation of success?

If the costs of affirmative action outweigh the benefits, then surely the “victims” would know. Over time, they would see that the best black students at second-tier law schools (some top students do choose second-tier schools for geographic, financial or other reasons) far outperform their similarly credentialed peers at more elite schools and have a much easier time passing the bar. That hard truth would be passed from one generation to the next.

But Sander offers no evidence that this occurs. In fact, his core data show that black students who attend more elite law schools generally drop out at lower rates and pass the bar at higher rates than black students with comparable credentials who attend less elite schools. True, students at more elite schools may come better prepared in ways the LSAT and college grades cannot measure. But by attending a prestigious school, they also enjoy substantial educational advantages, such as financial aid, support services and a culture of high achievement.

The reality is that thousands of black students admitted through affirmative action have succeeded by working hard, aiming high and making the most of good opportunities. The idea that they should now lower their sights deserves strong skepticism.

Second, Sander takes an unrealistic view of how many blacks would still attend law school if affirmative action were to disappear. He believes that students now in first-tier schools will go to second-tier schools, that students in second-tier schools will go to third-tier schools, and so on. According to Sander, this “cascade effect” would reduce the number of black law students, but not the number of black lawyers once better grades and retention are taken into account. This is almost certainly wrong.

The smooth cascade Sander envisions is unlikely. As his study concedes, ending affirmative action would cause black enrollment at the most elite law schools to drop from 7 or 8 percent to 1 or 2 percent. A top student faced with being one of only a handful of blacks in law school might reasonably decide that other career paths are less isolating and more promising. Similarly, other options might appear more attractive to an applicant who, without affirmative action, faces the prospect of attending a 40th-ranked school instead of a 15th-ranked school.

Sander further assumes that law school admission works as a fluid national market, with each black applicant willing to accept the best admission offer whether in Massachusetts or Missouri. For many reasons, including work, family and community attachments, this assumption is flawed. In short, Sander’s imagined cascade is rife with possibilities for leakage, reducing black law school enrollment far more than he predicts.

Finally, there’s reason to doubt Sander’s claim that ending affirmative action will eliminate “mismatch” and, with it, racial gaps in law school grades, retention and bar passage. Copious research, which Sander does not confront, shows that the achievement gap at selective universities is due to differences not only in entering credentials but also in the university experience itself.

This was confirmed in a recent study by College of New Jersey sociologist Timothy Clydesdale using Sander’s main data set. Consistent with other studies, Clydesdale found that admission credentials and other entrance factors account for only half of the black-white gap in law school grades. The remaining gap implicates aspects of the educational environment that may affect black and white students differently.

In experiments with highly motivated black students, Stanford psychologist Claude Steele has shown that the fear of doing badly in school and thereby confirming racial stereotypes generates an intense level of anxiety that undermines academic performance. Fear of confirming perceptions of racial inferiority is something white students do not face.

In addition, for many minority students, the lack of minority faculty heightens feelings of isolation and makes it difficult to find close mentors. And despite much progress, minority students still face discrimination on campus, both subtle and overt.

Given these factors, it is folly to believe that eliminating affirmative action will eliminate the achievement gap. What’s worse, it distracts us from seeking to improve the climate and quality of the educational experience in ways that enable all students to do their best.

• Goodwin Liu is an assistant professor of law at Boalt Hall, University of California at Berkeley. This article is adapted from an earlier version published in the Los Angeles Times.

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