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Published
in the Wall Street Journal
http://www.wsj.com
Friday, November 5, 2004
Note:
EJS is co-authoring a response with Richard Lempert, a professor
of law and sociology at the University of Michigan, who is quoted
in this article.
Critics
Assail Study of Race, Law Students
By
John Hechinger
A new
study that's raising controversy in law-school circles questions
whether admissions preferences for black students help them or,
ironically, set them back in their careers.
Research
by a respected law professor at the University of California,
Los Angeles, asserts that blacks who benefit from affirmative
action are being admitted to law schools where they find themselves
in over their heads, achieving lower grades and failing the bar
exam in higher numbers than they would have without the preferences.
The
research by Prof. Richard H. Sander, scheduled for publication
in this month's Stanford Law Review, turns traditional critiques
of affirmative action on their heads. It already is under assault.
Some
critics say the study dramatically understates the positive impact
of affirmative action on black law students. Based on the same
data the study used, Richard Lempert, a professor of law and sociology
at the University of Michigan, argues that eliminating affirmative
action in law-school admissions would reduce the number of black
attorneys by at least a quarter.
"I
and other people who looked closely at it absolutely despair at
the quality of the research," says Prof. Lempert, an architect
of the University of Michigan law school's affirmative-action
program, which the U.S. Supreme Court upheld in a pivotal ruling
last year. "His conclusions are just dead wrong."
Usually,
social conservatives decry preferences because of perceived unfairness
to white applicants. Although critics have talked before of a
"stigma" that damages black recipients, the new analysis
stands out for its detailed focus on alleged harms to the careers
of black students.
"We
need to take seriously the idea that there are potential costs
to minorities who benefit from racial preferences," Prof.
Sander says in an interview.
Prof.
Sander, who describes himself as a lifelong Democrat sympathetic
to the goals of affirmative action, claims that abolishing preferences
wouldn't reduce the number of black lawyers. In fact, he estimates
it would likely increase the cohort of black attorneys emerging
from the Class of 2004 by 8% and the number of those passing the
bar the first time by 22%.
The
study comes after the Supreme Court last year in the Michigan
case narrowly endorsed the use of race as a factor in undergraduate
and law-school admissions. The court ruled that diversity in higher
education was necessary to cultivate "a set of leaders with
legitimacy in the eyes of the citizenry."
Drafts
of the study, which hasn't been made public, have circulated among
experts, and Prof. Sander discussed it at a recent academic conference.
Critics, including Prof. Lempert, are drafting a harsh critique
to submit to the Stanford Law Review.
Prof.
Sander relied primarily on data that the Law School Admission
Council collected on 27,000 students who entered 160 U.S. law
schools in 1991, including their grades in college, test scores
and bar-exam results.
The
study found a stark achievement gap between blacks and whites
throughout the nation's law schools. Close to half of the black
law students ended up in the bottom tenth of their class. African-Americans
were more than twice as likely as whites to drop out -- and more
than six times as likely to fail state bar exams after multiple
tries.
Prof.
Sander argues that the reason for this outcome stems from a "mismatch"
between the credentials of the black students and the institutions
they attend. Because they have weaker credentials, he says, the
students achieve lower grades. And since grades are strongly correlated
to success on the bar exam, he argues, these students failed the
bar in higher numbers.
He
argues that students who perform at the bottom of their classes
at more selective colleges often are confused by tougher material
taught at speeds that challenge higher-achieving classmates. At
less selective colleges, the material tends to be simpler, so
these students can pull into the middle of their class and pick
up the baseline information needed to pass the bar exam. And he
says there is a "cascade effect" on every tier of law
school, from Harvard and Yale down the ranks, ensuring that, at
each level, blacks perform worse and are less likely to become
lawyers.
By
the study's tally, 86% of blacks currently admitted to law schools
would still gain admission without preferences. But they would
attend less competitive schools, where they would compile stronger
records. The remaining 14% -- 500 to 600 a year -- would likely
drop out or fail the bar.
To
preserve diversity, Prof. Sander recommends setting modest goals
for racial preferences -- about 4% in law school classes -- instead
of aiming for twice that figure, which he says is typical. Less
selective schools would be able to meet that figure without affirmative
action, he argues.
But
University of Michigan's Prof. Lempert says the study makes a
number of unreasonable assumptions. Without affirmative action,
many African-Americans wouldn't attend law school at all, he says.
The study assumes that black applicants would merely go to a less
selective school, but Prof. Lempert says many would be unable
or unwilling to go to such schools because they might be so far
away that the students wouldn't even consider them.
He
also notes that, although there is a correlation between grades
and bar passage, many other reasons explain blacks' poor performance
on the test. These, he said, include a documented "stereotype
threat," the tendency of minority groups to conform to negative
stereotypes about their abilities.
Prof.
Sander says he found no data to support Prof. Lempert's critique.
James Lindgren, a law professor at Northwestern University, who
is reviewing the same data, also found nothing suspect in the
study. Now that the Supreme Court has accepted the legality of
affirmative action, Prof. Lindgren says, the study might help
"the debate move into a more fruitful and nuanced discussion
about whom it helps and whom it hurts."
The
new study's conclusions contrast sharply with a prominent study
of affirmative action chronicled in the 1998 book "Shape
of the River," by former Harvard University President Derek
Bok and former Princeton University President William Bowen. Their
research, based on voluminous data from selective colleges, concluded
that racial preferences were enormously beneficial to African-Americans,
who went on to earn unusually high numbers of professional and
graduate degrees and achieve success in business and other endeavors.
Christopher
Edley Jr., dean of the law school at the University of California,
Berkeley, says that, even if Prof. Sander's findings are correct,
he would suggest taking measures to improve African-American student
performance, rather than scrap affirmative action. Prof. Edley
also says the study gave insufficient weight to the academic benefits
of diversity, for which there is "universal celebration"
on his campus.
At
UCLA, Prof. Sander has been at the center of the debate over diversity.
In 1997, after a voter initiative banned affirmative action in
California, Prof. Sander helped design and implement a preferential
formula to help socioeconomically disadvantaged applicants. But
the school turned to other methods after that system failed to
achieve enough racial diversity to satisfy some faculty.
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