Law School, Affirmative Action and Balck Lawyers

Gail Heriot, a law professor and member of U.S. Civil Rights Commission had an op-ed over the weekend in the Wall Street Journal, discussing a study by UCLA Law Professor Richard Sander in which Sander notes that despite affirmative action admission policies there are 7.9 percent fewer black attorneys than would have been present had law schools practiced color-blind admissions. Sander's thesis is that affirmative action admissions "mismatches" students with schools, in large part due to the admission of minority students we are not prepared for the school they attend.

Supporters of race-based admissions argue that, despite the likelihood of poor grades, minority students are still better off accepting the benefit of a preference and graduating from a more prestigious school. But Mr. Sander's research suggests that just the opposite may be true--that law students, no matter what their race, may learn less, not more, when they enroll in schools for which they are not academically prepared. Students who could have performed well at less competitive schools may end up lost and demoralized. As a result, they may fail the bar.

Specifically, Mr. Sander found that when black and white students with similar academic credentials compete against each other at the same school, they earn about the same grades. Similarly, when black and white students with similar grades from the same tier law school take the bar examination, they pass at about the same rate.

Yet, paradoxically, black students as a whole have dramatically lower bar passage rates than white students with similar credentials. Something is wrong.

The Sander study argued that the most plausible explanation is that, as a result of affirmative action, black and white students with similar credentials are not attending the same schools. The white students are more likely to be attending a school that takes things a little more slowly and spends more time on matters that are covered on the bar exam. They are learning, while their minority peers are struggling at more elite schools.

So schools lower admission standards for minority students "to give them a leg up" but in reality the move damages the minority student's chances of not only graduating but passing the bar exam.

In July 2005, I sat for the Maryland Bar Exam and for the first time in my life I failed an exam that had a direct impact upon my career. I hade failed exams in school before, but never, ever a test that impacted by my ability to work in my chosen field (I had to take a lot of exams in the Navy). I graduated cum laude from law school and if I can fail, imagine someone who struggled through law school academically taking the bar exam and passing the first time or any time. The numbers are not good:

Under current practices, only 45% of blacks who enter law school pass the bar on their first attempt as opposed to over 78% of whites. Even after multiple tries, only 57% of blacks succeed. The rest are often saddled with student debt, routinely running as high as $160,000, not counting undergraduate debt. How great an increase in the number of black attorneys is needed to justify these costs?

I believe that black lawyers are a boon to the profession, but more importantly, the profession has to maintain a stature within society worthy of the trust people place in attorneys. Affirmative action policies, if Sander's research is accurate, actually inhibit the ability of black students becoming lawyers and if true, the practice must be halted and right now.

The difficulty, of course, is that we as a nation and to a certain extent as a profession, have too much invested in affirmative action to simply stop the practice. More than a fair number of people, who don't want Prof. Sander's thesis proved or disproved (and so far his data has held up against some scathing critcisms).

No one claims the findings in Mr. Sander's study, "A Systemic Analysis of Affirmative Action in American Law Schools," are the last word on the subject. Although so far his work has held up to scrutiny at least as well as that of his critics, all fair-minded scholars agree that more research is necessary before the "mismatch thesis" can be definitively accepted or rejected.

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.

If the policy is not working, they, too, don't want anyone to know.

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.