The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

Sunday, August 26, 2007

My Wall Street Journal Op-Ed on Affirmative Action
Gail Heriot

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.

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Gail Heriot


The obvious solution is top make bar exams (or scoring) color sensitive.

Posted by: anon | Aug 26, 2007 11:02:00 AM

Everything has a cost. Or TINSTAAFL as economists say, in their long-winded way.

Posted by: dearieme | Aug 26, 2007 12:55:37 PM

You can not force equal results no matter how much one's ideology tells one that one ought to have them.

Posted by: km | Aug 27, 2007 9:07:00 AM

Students interested in paying for their college education with student loans should shop around before committing to any deal. There are different plans available, and many have specific conditions. Students should understand all of the possibilities.

Posted by: Student Loans | Nov 4, 2007 1:47:43 AM

Law is one of the few fields where results just don't matter that much to employers -- pedigree is more important. You seem to think that we're not doing minority students any favors because they end up at the bottom of the class and fail the bar. Wrong. Bottom of the class at certain schools opens more doors than top of the class at others.

Second, I don't know what all the anger is with AA. People get things that they don't earn or deserve all the time.

Posted by: anon | Nov 20, 2007 11:31:25 AM