Posted on November 15, 2004

Law-School Racial Disparities

Linda Seebach, Scripps Howard, Nov. 12

Law schools are among the most assiduous users and defenders of racial preferences in admissions. The people who run them evidently believe both that it is a desirable goal to increase the number of African-Americans and other minorities who become lawyers and that the goal cannot be reached in any other way.

So you can imagine the dismay caused by a study arguing that the net effect of preferences is to reduce the number of African-Americans who successfully pass the bar and lowers their income as well. The author is UCLA law professor Richard Sander, and a draft of his article is available at The article is to be published in the Stanford Law Review.

Preference advocates were quick to respond. David Chambers and Richard Lempert, both of the University of Michigan Law School, Timothy Clydesdale from The College of New Jersey and William Kidder of the Equal Justice Society drafted a critique, available at

I’ll outline Sander’s argument for you, but it’s the critique that is particularly interesting, because the authors’ arguments could be taken wholesale from the anti-preference side. It’s almost as if they were so desperate to discredit Sander’s results that they forgot these are exactly the arguments they’ve been trying so long and so hard to deny.

The performance of African-American students on the Law School Admission Test is very much weaker than that of white students. The reason is in dispute, but the regrettable fact is not. So in order to have as many black students as they think suitable, law schools admit black students with substantially lower undergraduate grades and LSAT scores than whites. The most elite schools admit students who would be competitive at a second-tier school, which then has to admit students who aren’t competitive with its white applicants, and so forth.

The result of this mismatch is that black law students get very low grades — the median black student gets first-year grades at about the 7th or 8th percentile. Students who get low grades, whatever their race, are more likely to drop out, and if they do graduate, are less likely to pass the bar exam. And except for those attending the most elite schools, the benefit of attending a more prestigious school is outweighed by employers’ low opinion of low grades.

Sander’s conclusion is that, in the absence of preferences, the number of African-Americans passing the bar would rise by almost 9 percent.

That sounds entirely too sunny to me, but I think he’s made a reasonable case that the effects of a truly race-neutral admissions policy would not be catastrophic. The authors of the critique, however, emphatically disagree.

They estimate that the proportion of African-American students who would no longer be admitted to any law school is at least 24 percent. Furthermore, they suggest that many African-American students would not want to attend the law schools that would be willing to have them, or as they put it, abandon law “rather than attend a law school that seems to have little prestige or attend a law school where only one or two of their classmates are black.”

The authors cite research that “in general, African-American students do not in fact perform as well as whites within the same law schools even when they have similar LSATs and UGPAs (undergraduate grades).”

Without preferences, they say, “many of the black students who today get into the 14th ranked schools would be admitted only to the 60th or 70th ranked school.”

Top schools would have only 1 percent to 2 percent of African-Americans, they say, instead of the 7 percent to 12 percent they have now in states where racial preferences are permitted.

I have to remind you that these are people who are defending the current system, conceding the huge role racial preferences play in admissions while the official spin is that race is only one of many “plus factors,” that all affirmative-action students are qualified, and that they are just as likely to succeed.

Not so. The Bar Passage Study conducted by the Law School Admission Council for students starting law school in 1991 found that 19.2 percent of black students failed to complete their studies within six years, compared with 8.2 percent of white students. Among students who took the bar exam up to five times, all but 3.3 percent of white students eventually passed it, but 22.4 percent of black students never did.

Sander believes that those disparities would shrink substantially if students were better matched to their schools, and the critique authors think the effect, if any, would be small and possibly negative. But couldn’t everyone agree that the current situation is calamitous, and start to look seriously about what could be done to ameliorate it?

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