Friday, August 31, 2007

Affirmative Action, Law Schools and the Mismatch of Minority Students

Earlier this week, I posted on an article in the Wall Street Journal by Gail Heriot discussing a study by UCLA professor Richard Sander that argued that many law schools, particularly the highest tier schools, actually do a disservice to minority students by accepting academically less qualified students under "affirmative action" programs. I wrote on Tuesday:
Far too many people, including it should be noted, the Supreme Court of the United States, has a stake in the practice of affirmative action admissions. The argument, frequently made, is that a "critical mass" of minority students adds to the education of the entire class. A better argument to make is that a critical mass of minority lawyers adds to the reputation and honor of the profession and current admission practices appear to make it hard to add to that critical mass of attorneys.
The inestimable Michael Barone also wrote about the issue, noting
Law school administrators, like university administrators generally, nonetheless cling desperately to racial preferences. So does the American Bar Association, which is trying to impose "affirmative action" policies on law schools as a condition of accreditation, a move that seems to have prompted the Civil Rights Commission report. The report gives ammunition to those of us who have criticized these administrators for preening self-righteousness. They want to pat themselves on the back for admitting large percentages of blacks but at the same time seem to have no interest at all in the percentage who actually graduate or pass the bar exam. They can't bear the thought that their institutions will have a lower percentage of blacks than some other institutions they regard as morally inferior (e.g., the United States military and big-city police forces).
Barone may have said "seem to have no interest at all" in the post admission success of minority students, a sentence that Ann Althouse took exception to:
He must know the law schools care deeply about the success of our graduates. But I understand his point. It's that if we really wanted the ends we care about, we ought to abandon the approach to admissions that the commission criticized.

But there is no "we" here. As Barone notes, the highest ranked law schools absorb much of the limited pool of minority applicants, and this affects the other law schools, which also want to admit minority students. The law schools are not all going to change at the same time, and we are are in competition with each other. If any school changes, others will look for ways to take advantage.
Which brings us to another important point, Sander's work has been criticized by many, but so far his data regarding law school performance has held up to scrutiny, but there has been little cooperation from the state bar associations to provide data on the admission of minority attorneys to the bar and the results of bar exams. As Heriot noted in her article:
Unfortunately, fair-minded scholars are hard to come by when the issue is affirmative action. Some of the same people who argue Mr. 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, they apparently don't want you--or anyone else--to know.

Take William Kidder, a University of California staff advisor and co-author of a frequently cited attack of Sander's study. When Mr. Sander and his co-investigators sought bar passage data from the State Bar of California that would allow analysis by race, Mr. 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, gleefully warned that the state bar would be sued if it cooperated with Mr. Sander.

Sadly, the State Bar's Committee of Bar Examiners caved under the pressure. The committee members didn't formally explain their decision to deny Mr. Sander's request for these data (in which no names would be disclosed), but the root cause is clear: Over the last 40 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.
The problem of course is that it is easy to pick apart Sander's research and I think even Sander would appreciate a critical dialogue, but beyond the numbers provided by law schools, the story is incomplete and the affirmative action interests are so great that it will take some of Sander's critics to actually break the state bars' reluctance to provide the necessary data. Vikrram David Amar, writing at, is no fan of Sander's work, having penned a series of columns commenting on Sander's methods, policy implications and even results. But despite Amar's doubts, he is joining in a chorus of law professors and thinkers in calling on state bar associations to allow access to critical data.
Over the past year or so, Professor Sander and some other scholars - whose views on race-based affirmative action are quite varied - have starting seeking more thorough and more recent data from various state bars, especially California's, on this issue. If procured, such data may well go a fair way towards either debunking or confirming Professor Sander's hypotheses about so-called "mismatch effects."

Although I don't necessarily share Professor Sander's intuitions about precisely what the information will show, and indeed I may end up interpreting the data differently than he does, I joined the research group's request to have the data analyzed because I think questions like these should be tested against available real-world information.

However, many state bar officials seem reluctant to facilitate the inquiry. California, for example, has, at least for the moment, turned down the request before it, although the reasons it asserts - protection of individual privacy and internal bar precedent - don't hold up very well, given the specifics of how the project is designed and the fact that the bar has provided similar information to other research efforts in the recent past.

I believe that this project, and the larger issue of which it is a part, are quite important. Moreover, neither is going away anytime soon; one of the Commissioners of the US Civil Rights Commission wrote an Op Ed in last week's Wall Street Journal discussing the topic and highlighting its centrality...

I myself don't know how much of a mismatch effect our analysis will find. I would be quite pleased personally if regressions and other analyses debunk or tend to cut against the mismatch hypothesis advanced in Dr. Sander's Stanford Law Review piece. And I want very much the research group to run as many different kinds of tests and analyses as we can think of - using a variety of alternative assumptions about the way schools pick students, and the way students go about the task of learning the law - to make sure the research can be used by scholars across the ideological spectrum to make their best arguments.

But more than anything else, I want to move the debate forward and encourage - perhaps even force - people to confront whatever reality seems most likely to exist, even if our sense of that reality is not free from uncertainty, so that we can adapt policy (or perhaps just leave it alone) in a way that is most likely to accomplish our shared objectives of diversity and fairness.
Like it or not, law schools provide an unavoidable entry into the legal profession since most states no longer allow a person to read for the bar (that is take the bar exam after apprenticing with a practicing lawyer--a long tradition in American legal history). Thus, with the entry barrier in place, the legal community has a huge stake in making sure the entry barriers are fair to everyone and permit all students the same chance of passing the bar. Students who are mismatched with their school, that is admitted under circumstances more likely to lead to poor grades and possible bar exam failure due to lack of adequate preparation, are not being afforded the opportunity to best prepare for the bar exam and membership in the legal profession.

As I stated before, a critical mass of minority law students at a given law school is not nearly as important as a critical mass of minoirty lawyers practicing their profession. If law school admission policies are distorting the ability of minority students to enter the legal profession, and the bar associations have data that could either support or debunk Sander's thesis, then the data should be released and tested nine ways to Sunday by as many scholars with an interest. This is an important, if not the most important, debate in the legal education arena and I for one would love to see Sander's research and Amar's research side by side because then we can see, not only which view is correct, but also find ways to correct any problems that may be found.

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