Wednesday, August 29, 2007
Over at the Volokh Conspiracy, a comment to a post by David Bernstein suggests that a recent study by Jesse Rothstein and Albert Yoon may go a long way toward disproving Sander's mismatch thesis (that racial preferences have actually reduced the number of African American lawyers). I don't think so--not yet anyway. Here is what I've written on the subject:
Recently, an article by Jesse Rothstein and Albert Yoon, although couched as a criticism of Sander, actually provides partial (though by no means conclusive) support for Sander’s mismatch hypothesis in the law school context. Rothstein & Yoon studied graduation, bar examination and employment outcomes. Not surprisingly, due to widespread hiring preferences, Rothstein & Yoon find that African-American law graduates have better employment outcomes than whites with similar credentials. But with regard to graduation and bar passage rates, they did indeed find what Sander’s research predicted they would find: that there are very large, unexplained disparities in graduation and bar passage rates between African-American and white law students with similar entering credentials. Rothstein & Yoon assure the reader that any mismatch effect is confined to the African-American students in the lowest quintile of entering credentials, but later in the article, they admit that 75% of all African-American law students are in the lowest quintile. (Sander also found that graduation and bar passage outcome disparities were greater in the lower ranges. See Sander at 441.)
Rothstein & Yoon are not ready to attribute this unexplained gap to mismatch (defined narrowly to mean that the affected students would have more likely graduated and passed the bar if they had attended a less-competitive school). See Rothstein & Yoon at 29 (“For students in the bottom quintile of the entering credentials distribution, the data are consistent with sizable mismatch effects on black bar passage rates but also with differential selection into law school.”).
Specifically, Rothstein & Yoon, argue that comparing white and African Americans with the same academic index towards the bottom of the law student credential range can be misleading. Particularly among the disfavored whites, many law school applicants in the lower academic index range were never admitted to any law school and hence never became law students. Only those with something extra--like a particularly good undergraduate institution or a particularly tough major (attributes that cannot be detected with the LSAC-BPS data)–make it into the pool. Comparing these specially-selected whites with African-Americans with the same academic index (but who received a preference and are therefore not necessarily as academically qualified as the average member of the white group) may be deceptive. If Rothstein & Yoon are correct on this, one would expect a gap in graduation and bar passage rates between the two groups.
But there's a problem: One issue that Rothstein & Yoon do not deal with is how African American and white students in the bottom academic index quintile differ on law school GPA. A key finding of Sander’s was that African-American and white law students with similar academic indices perform about the same when they compete against each other in law school. But when it comes time to take the bar examination, the whites substantially outperform the African Americans. Sander attributes this to the mismatch effect. Rothstein & Yoon do not weigh in about whether Sander is correct in that finding. They don't talk about whehter “bottom quintile” whites earn higher GPAs than “bottom quintile” African Americans when they compete against each other (as their alternative model would suggest) or about the same (as the mismatch model would suggest). If Sander is correct about this, then Rothstein and Yoon's theory doesn't fit the data.
It's also worth pointing out that Rothstein and Yoon's tentative conclsuions in no way are at odds with the Commission on Civil Rights' recommendations. Nothing in Rothstein & Yoon suggests that more research into the mismatch issue is unnecessary. To the contrary, their uncertainty as to whether the 75% of African Americans in the bottom quintile of law students are victims of mismatch or simply less qualified than the white law students with similar academic indices is an argument in favor of further research. Moreover, even if the Rothstein & Yoon alternative (i.e. that white law students in the bottom quintile have academic qualifications that are not detectible from the LSAC-BPS data set, but which nevertheless cause them to have higher graduation and bar passage rates than African Americans in the bottom quintile) turn out to be correct, that does not detract from the Commission’s recommendation that law schools disclose to all students the likelihood that a student with particular qualifications will graduate and pass the bar examination.
Tuesday, August 28, 2007
The Report of the U.S. Commission on Civil Rights on Affirmative Action in Law Schools is out. It does not of course endorse the work of Richard Sander, whose research indicates that racial preferences in law school admissions have actually reduced the number of African American lawyers today. But it takes the mismatch phenomenon seriously and calls for more research on the subject. (And it makes a few more recommendations that I will blog about later.)
One of the criticisms of Sander's conclusion is that it's so out of the blue. If mismatch is such a terrible problem, why has no one else hit upon it? But Sander's conclusion is hardly a lightning bolt from a clear blue sky. Indeed, Sander’s study in consistent with an increasing body of research. The skies have been clouded up for some time.
Rogers Elliott, A. Christopher Strenta, et al. have looked at why African-American and Hispanic students are less likely to follow careers in science than white or Asian-American students. In 1996, they published "The Role of Ethnicity in Choosing and Leaving Science in Highly Selective Institutions," in which they found that African-American and Hispanic students at elite colleges and universities are about as likely as white or Asian-American students to start off intending to major in science. But they abandon those intentions in larger numbers. The authors concluded that mismatch probably played a major role:
Why are so many talented minority students, especially blacks, abandoning their initial interests and dropping from science when they attend highly selective schools? The question has many possible answers, but we will begin with the factor we think most important, the relatively low preparation of black aspirants to science in these schools, hence their poor competitive position in what is a highly competitive course of study. As in most predominantly-white institutions, and especially the more selective of them, whites and Asians were at a large comparative advantage by every science-relevant measure ..., and on the composite predictor, the Academic Index, they were at a 1.75 [standard deviation] advantage.
That it is the comparative rather than the absolute status of the qualifications is clear from two strands of evidence. First students at historically black colleges and universities (HBCUs) have quite low average SAT scores and high school grades ... but they produce 40% of black science and engineering degrees with only 20% of total black undergraduate enrollment. For example, with SATM scores averaging 400, half the students at Xavier University are reported to be majoring in natural science; with scores somewhat higher (about 450), Howard University is the top producer of black undergraduate science and engineering degrees....
[T]hat brings us to the other strand of evidence for the competition argument. .... [Our evidence] shows how science degrees are distributed within each institution as a function of terciles of the SATM distribution.... Put concretely, a student with a SATM score of 580 who wants to be in science will be three or four times more likely to persist at institutions ... where he or she is competitive, than at institutions ... where he or she is not. [Emphasis supplied.]
Similarly, in 2003, Drs. Stephen Cole and Elinor Barber published Increasing Faculty Diversity: The Occupational Choices of High Achieving Minority Students–a project funded by the Mellon Foundation. The authors’ mission was to determine why more minority members are not attracted to careers in academia. Their conclusions, reached after extensively questioning 7,612 high-achieving undergraduates at 34 colleges and universities, pointed to mismatch as the culprit:
The best-prepared African Americans, those with the highest SAT scores, are most likely to attend elite schools, especially the Ivy League. Because of affirmative action, these African Americans (those with the highest scores on the SAT) are admitted to schools where, on average, white students’ scores are substantially higher, exceeding those of African Americans by about 200 points or more. Not surprisingly, in this kind of competitive situation, African Americans get relatively low grades. It is a fact that in virtually all selective schools (colleges, law schools, medical schools, etc.) where racial preferences in admission is practiced, the majority of African American students end up in the lower quarter of their class....
African American students at the elite schools (the liberal arts colleges and the Ivy League) get lower grades than students with similar levels of academic preparation (as measured by SAT scores) than African American students at the nonelite schools (state universities and HBCUs). Lower grades lead to lower levels of academic self-confidence, which in turn influence the extent to which African American students will persist with a freshman interest in academia as a career. African American students at elite schools are significantly less likely to persist with an interest in academia than are their counterparts at nonelite schools.
No one can say for sure whether Sander will ultimately be proven right or wrong about whether racial preferences have decreased the number of African American attorneys. The Commission's position is simply that research into this issue should be encouraged and not thwarted as Sander's critics are currently attempting to do.
This is intriguing. Fellow Right Coaster Gail Heriot gets a mention by the OC Register as their idea of a great US Attorney General (along with Richard Epstein and a few other luminaries).
Government work is all well and good, but what about tenure?
Monday, August 27, 2007
Some new work suggests that the revisionist view that the Old West really was not that homicidal is actually false. To clarify the double negative -- if you lived back in cowboy, wagon train, rootin' tootin' times, your chances of gettin' gunned down were pretty good, much better (or worse) than today.
But what we make of this (let's not forget) depends on whether the yellow bellied snakes had it comin'! Maybe the folks who gunned down these cattle rustlers, bushwhackers, claim jumpers and stage robbers were doing a public service. Just because the judge and jury was a Colt .45 doesn't mean it weren't justice. Shane! Shane! (Sorry, couldn't resist)
Wow! Some of the comments on my post concerning Andrew Sullivan's authoritarian views on male circumcision came as quite a surprise. The argument seems to be that because female circumcision is outrageous abuse the same must be true of male circumcision. Amazing!
So, let me elaborate on the argument. Female circumcision does great harm to the ability of females to enjoy sex and have orgasms. It is done for a variety of reasons, but its interference with the ability of women to enjoy life is enormous and therefore cannot be justified when done to a child who cannot consent. (Moreover, it is not done in infancy normally, but at an older age, when the girl should be allowed at least some input into decisions concerning her.)
Male circumcision, which is done shortly after birth, does not have a dramatic effect on the male's life. It has aesthetic effects, which some people like and some do not. It also appears to reduce the chance of contracting some diseases, perhaps only marginally. And some people claim that it may increase male sexual enjoyment, although again that is quite hard to determine or measure.
Thus, male circumcision is largely one of those things that is not clearly for or against the interests of the child. Because it needs to be done in infancy, it is entirely appropriate for the parents to make that decision for the child.
Thus, it is simply wrong to compare female and male circumcision. Prohibiting male circumcision represents an authoritarian act that cannot be justified on the ground of protecting the child.
Sunday, August 26, 2007
Here's the original version of the op-ed I wrote for the Wall Street Journal on Friday. For the most part, I think the editing process improved it, but this version has a couple of point the published version had to leave out:
What Affirmative Action Supporters Don’t Want Minority Law Students to Know
by Gail Heriot
Three years ago, UCLA law professor Richard Sander published an explosive study of the consequences of law school affirmative action. He calculated that there are fewer black attorneys today than there would have been if law schools had practiced color-blind admissions–about 7.9% fewer by his reckoning. The culprit in this disturbing tale of academic failure is the ill-advised practice of admitting minority students to schools for which they are inadequately prepared.
No one claims Sander’s findings are the last word on the subject. Although so far his work has held up to scrutiny as least as well as the work of his critics, all fair-minded scholars agree that more research is necessary before the" mismatch thesis" can be definitively accepted or rejected.
Unfortunately, fair-minded scholars are hard to come by when the issue is affirmative action. Some of the same people who argue Sander’s data are inconclusive are now actively trying to prevent him from conducting follow-up research that might yield definitive answers. If racial preferences really are causing more harm than good, these thinly-disguised political operatives don’t want anyone to know.
Take William Kidder, a University of California staff member and co-author of a frequently-cited attack of Sander’s study. When Sander and his ideologically-diverse co-investigators sought bar passage data from the State Bar of California, Kidder passionately argued that access should be denied, because disclosure "risks stigmatizing African American attorneys." At the same time, the Society of American Law Teachers, which leans so heavily to the left it risks falling over sideways, subtly threatened future litigation against the State Bar. Coincidentally, one of Kidder’s co-authors, University of Michigan law professor David Chambers, is a former SALT president.
Sadly, the State Bar’s Committee of Bar Examiners caved under the pressure. The committee members didn’t formally explain their decision to deny Sander’s request for the non-personally-identifiable data, but the root cause is clear: Over the last forty years, many distinguished citizens–university presidents, judges, philanthropists, and other leaders--have built their reputations on their support for race-based admissions. Ordinary citizens have found secure jobs as part of the resulting diversity bureaucracy. If it’s not working, they too don't want anyone to know.
The U.S. Commission on Civil Rights hopes that it can persuade the State Bar to reconsider. Its newly-released report on affirmative action in law schools specifically calls for state bar authorities to cooperate with qualified scholars studying the mismatch issue. Its recommendation is thus modest. It doesn’t claim that Sander is right or his critics wrong. It simply seeks to encourage and facilitate important research.
Its deeper purpose is to remind those who support and administer affirmative action polices of something that ought to be obvious: The good intentions of one’s predecessors do not give anyone a permanent moral free ride. Good faith requires a willingness to re-examine the consequences of one’s actions from time to time. Deliberate ignorance is not an option.
* * * *
Sander’s original article noted that when elite law schools lower their academic standards in order to admit a more racially diverse class, schools one or two tiers down feel they must do likewise. As a result, there is now a serious gap in academic credentials between minority and non-minority law students across the pecking order with the average black student’s academic index more than two standard deviations below that of his average white classmate.
Not surprisingly, such a gap leads to problems. Students who attend schools where their academic credentials are substantially below their fellow students’ tend to perform poorly. The reason is simple: While some students will outperform their entering academic credentials, just as some students will underperform theirs, most students will perform in the range that their academic credentials predict. As a result, in elite law schools, 51.6% of black students had first-year GPAs in the bottom 10% of their class as opposed to only 5.6% of white students. Nearly identical performance gaps existed at law schools at all levels. This much is uncontroversial.
Supporters of race-based admissions argue that, despite the likelihood of poor grades, minority students are still better off accepting the benefit of a preference and graduating from a more prestigious school. But Sander’s research suggests that just the opposite may be true–that law students, no matter what their race, may learn less, not more, when they enroll in schools for which they are not academically prepared. Students who could have performed well at less competitive schools may end up lost and demoralized. As a result, they may fail the bar.
Specifically, Sander found that when black and white students with similar academic credentials compete against each other at the same school, they earn about the same grades. Similarly, when black and white students with similar grades from the same tier law school take the bar examination, they pass at about the same rate. Yet, paradoxically, black students as a whole have dramatically lower bar passage rates than white students with similar credentials. Something is wrong.
Sander argued that the most plausible explanation is that, as a result of affirmative action, similarly-credentialed black and white students are not attending the same schools. The white students are more likely to be attending a school that takes things a little more slowly and spends more time on matters that are covered on the bar exam. They are learning while their minority peers are struggling at more elite schools.
Sander calculated that if law schools were to use color-blind admissions policies, fewer black law students would be admitted to law schools (3182 vs. 3706), but since those who were admitted would be attending schools where they have a substantial likelihood of doing well, fewer would fail or drop out (403 vs. 670). In the end, more would pass the bar on their first try (1859 vs. 1567) and more would eventually pass the bar (2150 vs. 1981) than under the current system of race preferences. Obviously, these figures are just approximations, but they are troubling nonetheless.
The Sander study has its critics–some thoughtful, some just strident–but so far none has offered a plausible alternative explanation for the data.
Of course, Sander doesn’t need to be proven 100% correct for his research to be devastating news for affirmative action supporters. Suppose the consequences of race-based admissions turn out to be simply a wash–neither increasing nor decreasing the number of minority attorneys. In that case, few people would think it worth the costs, not least among them the human cost that results from the failure of the supposed affirmative action beneficiaries to graduate and pass the bar. Under current practices, only 45% of blacks who enter law school pass the bar on their first attempt as opposed to over 78% of whites. Even after multiple tries, only 57% of blacks succeed. The rest are often saddled with student debt, routinely running as high as $160,000, not counting undergraduate debt. The real question therefore is how great an increase in the number of black attorneys is needed to justify this. If it is decreasing the number, it can hardly be defended.
* * * *
The rest of the Commission’s recommendations are also modest, the most important of which is a call for transparency. As a matter of consumer fairness, law school applicants–regardless of race--need to know the statistical likelihood that someone with their academic credentials will successfully graduate and pass the bar. Once informed, they can decide for themselves whether to undertake the risk of attending the particular school or any law school at all. If law schools are unwilling to undertake this simple reform, it should be mandated by law.
Under current practices, law school applicants are at the mercy of admissions officers for that information. And it is almost never provided except on a class-wide basis where success rates are positively misleading. Minority students whose academic credentials are substantially below their average classmates are lulled into believing that they are just as likely to graduate and pass the bar. When they don’t, they may be stuck with the bills, not to mention the loss of several years of their lives.
The problem is that the admissions officer’s job is to enroll the student, not to draw risks to the student’s attention. Indeed, in some cases, he may be frantic to enroll the minority student in order to comply with the stringent new diversity standards of the ABA Council on Legal Education and Admissions to the Bar. As the federal government’s accrediting agency for law schools, the ABA Council has the power to determine whether a law school will be eligible for the federal student loan program. The law school that fails to satisfy the ABA Council’s diversity requirements does so at its peril–as a number of law school deans can amply attest.
Decades of law students have relied upon the good faith of law school officials to tell them what they needed to know. Especially for the 43% of black law students who never became lawyers, maybe that reliance was misplaced.