Affirmative Action in Law Schools

Today, while browsing How Appealing, I was reminded of two things: Why I stopped reading "townhall.com", and of the persistent debate over whether "affirmative action" programs in universities do minority students a disservice - the usual argument is that they place students in institutions above their intellectual ability, and thus cause lower performance and higher attrition rates. The former issue is the easier to address - I got tired of the fact that you usually didn't have to read past the headline to know what a TownHall.com piece would argue, and that if by then you could not already predict the tired, overused arguments that would be applied to reach the editorial's conclusion, all you had to do was look at the name of the author.

Today's editorial was a bit of a surprise - the headline, "Does affirmative action produce more black lawyers?", certainly presages the anticipated townhall.com answer of "No!". But it didn't telegraph that the author of the piece would then digress into an irrelevant narrative about creating an alternative system to the nation's public schools. (The surprise was, obviously, less the nature of the argument than the fact that it would be used to pad out this particular piece.)

The editorial, in classic townhall.com style, is internally inconsistent. It references a law review article, "A Systemic Analysis of Affirmative Action in American Law Schools" [PDF Format, 1.2 Megabytes], by Richard H. Sander, a law professor who we are first told is " a long-time liberal and advocate of race-conscious public policy", and are next told is "cannot be painted with any ideological brush". Um... okay. In any event, a brief summary of the law review article is provided by the author. The arguments he presents are not new, save perhaps in their appliction to law schools instead of undergraduate institutions.

The author's first suggestion is that affirmative action programs for African American students at the nation's law schools are so pronounced that they are effectively parallel systems of admission - or, as he puts it, they "are generally hard to distinguish from racially segregated admissions". The author then suggest that because African American students come into law school with such inferior preparation, they underperform during their first year.

Accepting these assertions as true, isn't the reasoning rather circular - to criticize affirmative action programs which are meant to close an achievement gap on the basis of an achievement gap? If the argument is that the affirmative action programs don't offer anything to the students themselves, and do nothing to advance their later lot in life, that's material. But we already know about the achievement gap, and one wouldn't expect it to magically disappear merely because a student is accepted into a law school.

It would be interesting, of course, to see how the African American students perform during their second and third years of law school - the article suggests an overall slight decline in average class ranking. (My personal performance following first year went up - in no small part because I learned to game the system. Read the professor to anticipate what will be on the exam; write an exam that accords with the professor's politics; assume that a professor who assures a class "I don't take politics into consideration while grading" is either lying to the class or lying to himself, etc. I think the biggest advantage some of the kids from "elite" undergraduate institutions had, on their way into the law school, is that they were already expert at gaming the system.) The author presents a number of theories as to why this might be the case, settling primarily on "academic mismatch". But the author's arguments (including his personal example of almost failing an undergraduate course in German, finding himself with little aptitude for that language) do not necessarily support his thesis. That is, the mismatch may not be between the student and the institution, but (as in his case) between the student and the subject. It may be that some of the "mismatched" students might have been better served by being directed to business school, for example, by their undergraduate academic advisors, instead of law school. Presumably the author is not disputing that he, personally, was academically qualified to go to Harvard and to enroll in the German course he almost failed - so why is he so willing to attribute "mismatch" to academic inadequacy as opposed to the subject matter when it comes to African American students?

The next argument makes no sense to me - it is that "these low grades substantially handicap black students in their efforts to complete law school and pass the bar". Perhaps it is because when I was at law school I didn't see many students drop out of the program, and the only two I can recall from my first year class were not African American. One hated law school; the other got a job offer within his prior profession that was "too good to refuse". The lowest performing student I can recall from first year, also, was not African American - and she ultimately did pass the bar and found employment in a law firm. Now granted, my law school might have been exceptional in this regard, but I doubt it - I would venture that other elite law schools had similarly high pass rates for their students, including minority students. The author's statistics suggest that relatively few African American students drop out of elite schools, with a growing dropout rate as you move down through lesser-rated tiers of schools.

That seems rather inconsistent with the author's notion that attrition rates would drop if affirmative action were eliminated - in fact the author concedes that at elite institution the lower attrition rates offset the effect of lower grades. And while the author suggests that first year grades are a more important factor than law school ranking, it is not clear to me that the author's analysis properly takes into consideration the relatively low numbers of elite institutions - that is, the overall extrapolation seems to overrepresent middle and lower tier schools, which is where he expects the students from the elite schools to end up.

In terms of how this would affect bar passage rates, the author asserts, "Only 45% of black law students in the 1991 cohort completed law school and passed the bar on their first attempt; in the absence of preferential admissions, I estimate that this rate would rise to 74%." That conflates the two issues - graduating from law school and passing the bar - when in my opinion those issues should be treated separately. After all, everybody who takes the bar in a particular state at a particular time takes exactly the same test.

Most students take "bar review" courses to prepare themselves for those tests, their first year of law school (where many of the key subjects for the bar exam are covered) being an increasingly remote memory, and coverage of state law issues (particularly in elite schools) pretty much absent from the curriculum. Granted, it is suggested that some lower tier law schools amount to little more than a three year bar review course, but presumably the author isn't assuming that the typical African American student declined admission by Yale would end up at such a school - he suugests that on an even playing field, the student declined by Yale might end up at Cornell, the student denied by Cornell might end up at Cardozo, and the student denied by Cardozo might end up at Syracuse. The author accepts that this would result in a marked diminishment of African American enrollment at the nation's top 40 law schools. On a personal note, after I left law school, my school raised its first year curve - such that students had higher GPA's. Despite the author's thesis, I am not aware that this had any effect on either attrition or bar passage rates.

This "trickle down" (the author prefers "cascade effect") in the admissions process is presumed to result in a better match between student and law school, and higher graduation rates - but even accepting that assumption it still isn't apparent how that would affect bar passage. The author presents statistics showing a strong correlation between law school GPA and bar passage rates, but as with the prior extrapolation this overall effect would seemingly be distorted by the number of students from middle- and lower-tier schools, as compared to the relative few from elite institutions.

The author also suggests that the effect of higher grades at a lesser institution would result in higher income than lower grades at an elite school. This, again, assumes a mismatch between student and school as opposed to between student and subject matter. I don't think, for example, that the author would have fared particularly well in a German class even at a mediocre college. It also presupposes that post-law school income is the best measure of success - something that may surprise those of us who took alternative paths in our legal careers. I know a lot of lawyers who have found greater satisfaction in smaller firms, public service, or other lower paid careers - even as law professors. Failures by the author's standards?

Even with respect to the "money effect" the author is very tentative in his assertions - "It is clear enough that law school grades are quite important, perhaps more important than law school prestige in determining who gets what jobs." On a personal note, I had a couple of interviews during law school where the identity of my undergraduate institution was enough to put me out of the running - whatever one makes of the author's overall projections, I don't think they would hold for the NLJ 250 - I think that you would find that the top law firms recruit almost exclusively from elite law schools, and want "brand name" undergraduate institutions. Eliminating African American students from the top tier would seemingly have a profound impact on their presence in top tier firms.

The "money" analysis also excludes the possibility that racism plays a role in the relative income earned by African American law school graduates. While the racial environment at law firms has certainly improved, and while some reading this might disagree, I think that assumption is quite naive.

The author extrapolates from his findings to suggest that, given a level playing field, "86% of blacks currently enrolled in law schools would have been admitted to some law school under race-blind policies, and the much lower attrition rates that would prevail in a race-blind regime would probably produce larger cohorts of black lawyers than the current system of preferences produces." For the reasonas outlined above I personally believe that, despite the author's attempts to back up his position with statistics, this thesis relies too heavily upon assumption. (Giving due credit to the author, toward the end of his piece the author acknowledges that there are significant defects in his data, and that his analysis relies heavily upon assumption - he just happens to believe those assumptions to be sound, whereas I am skeptical.)

I am left with one lingering question about the piece, and would appreciate any thoughts you might have. The piece is titled, "A Systemic Analysis of Affirmative Action in American Law Schools", yet it addresses only African American law school students as compared to Caucasian law school students. Given that several other minority groups are significant beneficiaries of typical law school affirmative action programs, how is that a "systematic analysis of affirmative action"?