Posted on November 8, 2004

Does Affirmative Action Hurt Black Law Students?

Katherine S. Mangan, Chronicle of Higher Education, Nov. 12

Affirmative action hurts black law students more than it helps them by bumping applicants up into law schools where they are more likely to earn poor grades, drop out, and fail their states’ bar exams, according to a forthcoming study by a law professor at the University of California at Los Angeles.

The author, Richard H. Sander, argues that ending racial preferences in law-school admissions would increase the number of black lawyers because it would help ensure that students attend law schools where they are more likely to succeed.

A report of the study, scheduled to appear in the November issue of the Stanford Law Review, has sparked a contentious debate among supporters and critics of affirmative action.

Critics say Mr. Sander’s data do not support his findings, and they have accused him of leaping to unfounded and inflammatory conclusions. Some critics worry that legislators who oppose affirmative action will seize the report to support efforts to end racial preferences. And they are concerned that it could discourage black students from applying to law school.

“It’s touching a lot of nerves,” concedes Mr. Sander, who has discussed his findings at two academic meetings and circulated early versions of his report to some of his colleagues.

“The study is implicitly pretty critical of what law schools are doing. For any defender of affirmative action, which is a core article of faith in higher education, and especially in law schools, this seems like a fundamental assault on cherished ideas and values.”

Help or Harm?

Mr. Sander’s main source of data is the last comprehensive study of bar-passage rates, which was conducted between 1991 and 1997 by the Law School Admission Council. That study of 27,000 students who entered law school in 1991 found a wide gap between the grades and test scores of minority students and those of white counterparts.

Mr. Sander also drew data from his own study of students who entered 20 law schools in 1995. His analysis focuses on black students alone. (He is working on another study that includes other underrepresented minority groups).

His study, “A Systemic Analysis of Affirmative Action in American Law Schools,” found that:

  • After the first year of law school, 51 percent of black students have grade-point averages that place them in the bottom tenth of their classes, compared with 5 percent of white students. “Evidence suggests that when you’re doing that badly, you’re learning less than if you were in the middle of a class” at a less-prestigious law school, Mr. Sander says.
  • Among students who entered law school in 1991, about 80 percent of white students graduated and passed the bar on their first attempt, compared with just 45 percent of black students. In a race-blind admissions system, the number of black graduates passing the bar the first time would jump to 74 percent, he says, based on his statistical analysis of how higher grades in less competitive schools would result in higher bar scores. Black students are nearly six times as likely as whites not to pass state bar exams after multiple attempts.
  • Ending affirmative action would increase the number of new black lawyers by 8.8 percent because students would attend law schools where they would struggle less and learn more, earn higher grades, and have better success on the job market.
  • With the exception of the most-elite law schools, good grades matter more to employers than the law school’s prestige.

Mr. Sander stops short of calling for an end to all racial preferences, but argues that they should at least be scaled back if, as he contends, they are hurting the intended beneficiaries more than they are helping them.

Copies of the unpublished study have circulated from coast to coast and divided Mr. Sander’s colleagues.

Lewis A. Kornhauser, a professor of law at New York University, says he generally favors affirmative action, but that Mr. Sander’s study “raises interesting questions about its efficacy.”

James Lindgren, a professor of law at Northwestern University, also views the study as an important contribution to the debate over racial preferences.

Critics Weigh In

“With Sander’s new study,” he says, “we are finally moving to a less fevered and more nuanced discussion of the scope of affirmative action: Which minority students actually benefit and which do not?”

On the other side of the debate, four critics of Mr. Sander’s findings have submitted a proposed critique of his study to the Stanford Law Review, which plans to publish reactions in May.

They wrote that “Sander’s article is premised upon a series of statistical errors, oversights, overgeneralizations, and several implausible (and at times internally contradictory) assumptions. Consequently, his estimates of a post-affirmative-action world are wildly optimistic.”

Two of the authors—David L. Chambers, an emeritus professor of law, and Richard O. Lempert, a law professor, both at the University of Michigan at Ann Arbor—are no strangers to the affirmative-action debate. In 2000 they published a study that found that minority students who graduated from Michigan’s law school between 1970 and 1996 were just as successful in their careers as their white peers, even though they started with significantly lower law-school grades and standardized-test scores.

Lawyers cited their study in Grutter v. Bollinger, the case that resulted in the U.S. Supreme Court’s upholding of racial preferences at Michigan’s law school (The Chronicle, July 4, 2003).

A third author of the proposed critique is William C. Kidder, a researcher at the Equal Justice Society, a San Francisco-based advocacy group that promotes diversity in education. The fourth is Timothy T. Clydesdale, an associate professor of sociology at the College of New Jersey.

Mr. Clydesdale is finishing his own study, which examines the same bar-passage rates but reaches starkly different conclusions from Mr. Sander’s. “There are some very significant gaps to be concerned about,” Mr. Clydesdale says, but throwing out affirmative action is not the answer. “There’s bath water that needs to be rinsed away, but there’s a baby in there that’s quite fine.”

He concluded that minority students, like older students and those with disabilities, often feel like outsiders in law school. Furthermore, the dominant teaching approach—the Socratic method, in which law professors pose questions to individual students—can be especially intimidating for those who already feel that they do not belong in law school, he says.

Kathy Hart, a 2003 Harvard Law School graduate who is now working for a law firm in Boston, says racial preferences are not the issue.

“The problem is not so much the entry; it’s what happens while you’re there,” says Ms. Hart, who is black. As a minority law student, “you’re more likely to feel isolated and marginalized, and feel like ‘nobody gets my experience.’”

That, in turn, can undermine a student’s confidence, she says.

Preserving Opportunities

Richard D. Geiger, dean of admissions at Cornell Law School and chairman of the Law School Admission Council, says Mr. Sander’s report does not offer new information.

“I really wonder whether it’s going to be more than a dazzling light show of statistics that in the end doesn’t tell us much new or offer much in terms of a solution,” says Mr. Geiger.

He adds that he finds Mr. Sander’s suggestion that black students are being misled about their chances of succeeding as lawyers “kind of paternalistic.”

“There are so many cases of people outperforming their academic predictors and having wonderful opportunities because of the law school they graduated from,” says Mr. Geiger. “I wouldn’t want to deny anyone that opportunity.”

Mr. Sander is undaunted by the criticism. “I’ve sent the article to about 25 people for feedback who span the ideological spectrum, and the dominant reaction has been that it’s pathbreaking and persuasive,” he says. “It’s changing a lot of people’s minds.”