Saturday, April 12, 2008
Was the Supreme Court in Grutter Misled About the Success of Michigan’s Race-Based Admissions Policies?
This is troubling.
Back during the trial before Judge Bernard Friedman in Grutter v. Bollinger, Richard Lempert, Eric Stein University Professor of Law and Sociology, testified as an expert on behalf of his employer, the University of Michigan Law School. At issue, of course, was the constitutionality of the Law School’s admissions policy, which granted very substantial affirmative action preferences to black and Hispanic students. Lempert assured the court that, despite these preferences, Michigan affirmative action beneficiaries had overwhelmingly been successful in passing the bar. I have little doubt that Justice Sandra Day O’Connor found this information comforting in arriving at her decision upholding the University of Michigan’s authority to engage in discrimination for racial diversity’s sake.
“Our study finds that Michigan, just not to put too fine a point on it, Michigan graduates pass the bar. It doesn't matter, really, whether you're a minority or whether you're white. ... [I] think there might have been a statistically significant difference favoring whites, but it was substantively sort of completely trivial. It was like 95 percent of minorities and 98 or something or 99 percent of whites.” Grutter Trial Transcript at 57-58.
He testified similarly before the U.S. Commission on Civil Rights in 2006:
“I and colleagues did a major study of Michigan’s graduates, affirmative action graduates over a 27-year period. ... [W]e took special care to check for non-response bias and found considerable evidence that this was not a serious concern. ... But, for example, at Michigan in the 1970s, 98.5% of our respondents graduated and passed the bar. In the 1980s, 95.1 percent; 1990s, 96.1%, pretty much the same as our whites.” USCCR Briefing Transcript at 19.
On both these occasions, Lempert was testifying to the ultimate bar passage rate (defined as passage within four years), not the first-time rate. And his figures were meant to be the bar passage rate for law school graduates who take the bar exam, not the rate for those who simply start law school (some of whom, of course, never finish or, if they do, never take the bar exam). Even so, the figures seemed a bit high. Evidence from the largest data base available on law student bar passage rates nationwide painted a less cheerful picture. And flaws in Lempert’s methodology suggested that, contrary to his testimony, non-response bias was a very serious concern.
Now evidence has apparently come to light in connection with the litigation over Proposal 2 that suggests that the Michigan experience may have been seriously overstated. According to UCLA law professor Richard Sander (who acted as an expert witness for Proposal 2 supporters in the recent litigation over that initiative), evidence obtained in discovery shows that the bar passage rate for white Michigan graduates is indeed very high–97.2% is the figure he quoted me. But for black graduates, Sander reports that the figure is only 77%. These figures are for ultimate bar passage and should therefore be directly comparable to Lempert’s figures. The figures for first-time takers would be lower–although I do not know by how much.
What accounts for the strikingly different figures between Lempert’s testimony and the data that Sander analyzed? I cannot say. I note that Lempert’s testimony refers to “minority” and “white” rates, while Sander contrasts “black” with “white.” But that would not be enough to cause such a stark discrepancy. I also note that Sander’s figures are for recent years, and Lempert’s are for the 1980s and 1990s, but the notion that the gap in bar passage rates suddenly ballooned in the post-Grutter world seems rather implausible. Differing lengths of time in defining "ultimate bar passage" are also unlikely to cause such a large gap in the figures. If Sander’s figures are accurate, it really doesn’t look good for Lempert (and, in fairness, if Lempert’s figures turn out to be the more accurate, it won’t look good for Sander).
By the way, when intervenor Eric Russell sought further discovery to confirm Sander’s preliminary findings, defendant University of Michigan refused to comply. The issue was instantly mooted when Judge David Lawson upheld Proposal 2.