Tuesday, November 09, 2004

Affirmative Action in American Law Schools

Richard Sander, Professor of Law at UCLA, is set to publish in this month's Stanford Law Review his article "A Systematic Analysis of Affirmative Action in American Law Schools." (He has posted online both a draft and a summary of the article.)

Sander, by his own testimony, is a political liberal and a civil rights lawyer. He considers himself to be a supporter of affirmative action, assuming that the benefits outweigh the costs. In the course of his study, however, he was suprised and dismayed to learn that these law-school affirmative-action programs fail at the most basic level in achieving the goal of producing more and better black lawyers.

Here is what he found:

1. The levels of racial preferences at American law schools are very large and remarkably homogenous across institutions, operating in ways that are generally hard to distinguish from racially segregated admissions.

2. Black students admitted through preferences generally have quite low grades in law school – not because of any racial characteristic, but because the preferences themselves put them at an enormous academic disadvantage. The median black student starting law school in 1991 received first-year grades comparable to a white student at the 7th or 8th percentile.

3. These low grades substantially handicap black students in their efforts to complete law school and pass the bar. 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 [=Sander] estimate that this rate would rise to 74%.

4. The job market benefits of attending an elite school have been substantially overrated; regression analysis of job market data strongly suggests that most black lawyers entering the job market would have higher earnings in the absence of preferential admissions, because better grades would generally trump the costs in prestige.

5. It is far from clear that racial preferences actually cause the legal education system to produce a larger number of black lawyers. Careful analysis indicates that 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.

In the case of blacks, at least, the objective costs of preferential admissions appear to substantially outweigh the benefits. The basic theory driving many of these findings is known as the “academic mismatch” mechanism; attending an advanced school where one’s credentials are far below those of one’s peers has a variety of negative effects on learning, motivation, and goals that harm the beneficiary of the preference. Over the past several years, a wide range of scholars have documented the operation of the mismatch mechanism in a number of fields of higher education.

[JT: the bold above is my emphasis]

The date for this study may be viewed here.