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Published
on ABAnet.org, the American Bar Association website
http://www.abanet.org/journal/ereport/nov19affirm.html
Friday, November 19, 2004
AFFIRMATIVE
ACTION NO BOON FOR BLACKS, PROF SAYS
His Study of Grades, Grads at Elite Law Schools Stirs Debate
BY
STEPHANIE FRANCIS WARD
Affirmative
action hurts the group it is most designed to help, according
to a yet-to-be published law review article.
Preferential
policies allow students to attend schools for which they are not
academically prepared, hurting their grades and their prospects
of passing the bar exam, according to the article, which will
be published by the Stanford Law Review in mid-December.
The
author is Richard Sander, a professor at the University of California
Los Angeles School of Law. His assessment is based on an empirical
analysis of the effects of affirmative action on black law students.
Already his conclusions are creating a great deal of discussion
in the legal community.
According
to the article, "A Systemic Analysis of Affirmative Action
in American Law Schools," about 52 percent of black law students
at elite law schools have first-year grade-point averages that
place them in the bottom tenth of their classes. For white students
at these schools, Sander writes, about 6 percent are in the bottom
tenth in the first year.
Bar
passage rates are also mentioned. According to Sander’s article,
45 percent of all black law students who began law school in 1991
went on to graduate and pass state bar exams on their first try.
The rate for whites, he writes, was almost 80 percent. White law
students admitted through legacy programs and affirmative action
admittees have similar success rates, according to Sander.
If
affirmative action were curtailed, Sander says, black law students
would be more likely to attend schools for which they are academically
suited. They would get better grades and be more likely to graduate,
and their bar passage rate would rise to 74 percent, he predicts.
Sander
relies on 1990s information gathered by the Law School Admission
Council as well as an ongoing study titled "After the JD"
that was organized by groups including the American Bar Foundation,
LSAC and the NALP Foundation for Law Career Research and Education.
The
study done solely by the LSAC involves data from 27,000 law students,
while "After the JD" focuses on approximately 4,500
attorneys who began practice in 2000. Seventeen percent of the
national sample of those respondents identify themselves as nonwhite.
As
a third source, Sander looked to a data sample of first-year law
students from 30 ABA-accredited law schools.
Traditionally,
academia refuses to question affirmative action, say many who
oppose it. They hope Sander’s piece will open the door to
new dialogue.
John
O. McGinnis, a professor at Chicago’s Northwestern University
School of Law, notes that this is one of the first law review
articles to address the matter since Grutter v. Bollinger, 539
U.S. 306. The 2003 U.S. Supreme Court opinion upheld the University
of Michigan Law School’s individualized affirmative action
admissions policy.
"I
think we are going to see a second generation of scholarship that
is much less focused on the grand principles about the rightness
or wrongness of affirmative action, and much more focused on the
specific consequences of it," McGinnis says. "This is
a very salutary development. In many areas of the law, we have
too much shouting about principle, and not careful attention to
the consequences."
For
job prospects, Sander argues, employers often care more about
a candidate’s law school grades rather than where he or she
attended law school.
"If
you go through law school and do badly, there has been a stigma
associated with it, and I think most black students view this
as a sign of individual failure," Sander says. "I’m
hoping that for people who read the study, they don’t see
it that way."
But
many probably will, according to academics disputing the article.
William C. Kidder, a researcher with San Francisco advocacy group
Equal Justice Society, co-wrote a critique of Sander’s piece
with three others. The group relied on the same information as
Sander, but reached different conclusions.
Kidder
says their chief concern is that Sander’s report will discourage
blacks from attending any law school. And blacks who apply and
gain admission without benefit of racial preferences still face
hurdles, they say, since blacks, Hispanics, Asian-Americans and
older students of all backgrounds tend to perform worse than whites
in law school, even when controlling for undergraduate grades
and LSAT scores. While minority graduation rates would improve,
they would not be as high as Sander predicts, they claim.
"While
it is probably the case that if affirmative action were ended,
the graduation rate of African-American students would improve
somewhat at the law schools they would then attend, the net impact
of ending affirmative action would be calamitous—probably
in the range of a 25-30 percent decline overall in the numbers
of new African-American attorneys each year," they write
in their critique, to be published next May in the Stanford Law
Review.
Kidder’s
group also contends that Sander downplays the benefits of attending
top-tier law schools. In fact, the group found that when comparing
black law students with similar undergraduate GPAs and LSAT scores,
those at top-tier law schools had higher grades and bar passage
rates than those who attended less prestigious institutions.
The
study committee associated with the "After the JD" study
also disputes Sander’s findings, says Bryant G. Garth, a
senior research fellow with the American Bar Foundation. That
opinion excludes Sander, who is also a member of the group.
"We’re
not at all convinced that [the study] shows if you drop down in
law school, you would have the improved performance sufficient
to make a difference," Garth says. "It’s a huge
assumption that those who drop down will improve so dramatically
in grades that they will get the kind of jobs he’s measuring
success by."
Also,
Garth notes, the study only focuses on students a few years out
of law school.
"To
study lawyers’ careers on the basis of what people do three
years out of law school is to miss all the ways that careers change
over time," he says.
The
black lawyers who attended top-tier law schools and were interviewed
for this article dispute Sander’s assertion that grades matter
more than the school’s pedigree. Some observe that it’s
not uncommon for some white male lawyers at big firms to have
gone to less prestigious schools, but most if not all of the minority
lawyers at the same firms went to top-tier schools.
"Law
firms are not going to stop hiring white males if one does bad,"
says Raymond C. Marshall, a San Francisco lawyer who is black.
"Women and attorneys of color, who have not been in the field
with the same numbers over the years, have that continued burden
[to outperform their white male counterparts] to measure up."
The
reality, he says, "is that the opportunities are still greater
[when you graduate from a top law school]. All things being equal—and
of course they never are—you would want to go to the best
possible school you can."
Marshall—an
alumnus of Harvard Law School who graduated summa cum laude from
Albertson College of Idaho—says he was not an affirmative
action admittee. But it doesn’t bother him if people think
that.
"What
people are looking for is the opportunity to succeed," he
says. "Would I rather have the opportunity to be there, as
opposed to having the door closed? It’s an easy question—burden
me with the opportunity to go through Harvard. … I’ll
worry about the stigma later."
Other
black lawyers say Sander’s study makes them feel defensive
about their qualifications. Renee M. DuPree, a black associate
who works with Marshall, says it’s not unusual for people,
usually white people, to ask if affirmative action helped her
get to where she is today.
A graduate
of the University of Michigan Law School, where she was an associate
and contributing editor of the Michigan Law Review, DuPree says
she doesn’t know if affirmative action played a role in her
college admission.
"I’m
not someone who’s going to doubt that there’s a possibility
that I was assisted by affirmative action, but I’m also not
going to question my intelligence or abilities," she adds.
"Although affirmative action does assist people, it’s
not a free ride.
"I
was raised with the understanding that as a black person, you
have to work harder to get where your white counterparts are,"
she says. "One way of doing that is going to a top-tier law
school and having that name behind you."
ABA
President Robert J. Grey Jr. of Richmond, Va., sees affirmative
action as one of many tools to be considered in promoting a diverse
profession. Also, he says that graduates from many different law
schools receive good educations and achieve career success.
"The
more fundamental issue is increasing the number of people of color
who attend and graduate from law schools at all," says Grey,
the second black lawyer to head the ABA. "Nevertheless, graduation
from a top-tier school does afford those students an advantage
in employment opportunities. And lawyers in the workplace will
value diversity and be better prepared to serve their clients
and relate to others if they have learned in a diverse school
environment and had that environment enrich their life experiences."
©2004
ABA Journal
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