The Right Coast

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

Wednesday, August 29, 2007

Do Yoon and Rothstein Rebut Sander?
Gail Heriot

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.

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Gail Heriot


If the mismatch theory is wrong, the Law Schools must be doing a lousy job, surely? They would have to be teaching in a way that didn't suit the majority of their students.

Posted by: dearieme | Aug 29, 2007 11:10:33 AM

The mismatch theory is most probably incorrect. What is learned in lawschool has very little resemblance to what is found on the bar exam. One may have acquired a large body of knowledge but without honed test-taking skills it is unlikely that they will be successful on the bar exam. Instead of attempting to pass off personal opinion as science, inquiry should be focused on the passage rates on bar exams between those who take the bar review courses and those who do not.

I am of the mind that the difference in who passes and who fails the bar has more to do with who has the money to pay for BarBri. Because black students usually do not have access to the funds or the time to devote to bar review courses, they score lower. I graduated from the University of Pennsylvania Law School in '88. My first job was at a large Dallas law firm. I got a signing bonus when I accepted my offer. The firm paid for my bar review (while they were paying my salary) and afforded me the time to attend the classes. They helped prepare my bar application, sponsored me and paid my bar fees. I don't think this is the case with most African American law students. Many have neither the time nor money to invest in bar review courses and have no one to pay their bar fees or prepare their documents. I recall that many years ago Bar Bri was providing its course at a reduced rate at Texas Southern Law School and as a result their bar scores improved drastically. It is specific preparation for testing and how well your life is subsidized when you are a baby lawyer that makes a difference in the final analysis. We'll designate this argument as the King-Mays "specific prep & subsidy" theory.

Posted by: Nadine R. King-Mays | Aug 29, 2007 3:10:29 PM

Nadine, I am pretty sure that the firm where you worked would have paid the bar review costs for any black students they hired. And the original post makes it clear that a black student graduating from Penn with your grades would have been more likely, not less, to get a job at a big law firm. So your thesis seems fairly easily refuted.

Still, maybe we should do an investigation to see if there are any firms that pay for bar review courses for their white associates but not their black associates, if you think that is a problem.

Posted by: y81 | Aug 31, 2007 6:35:10 AM