Affirmative Action & Unintended Consequences

Is affirmative action in law school admissions hurting the prospects of black attorneys? Gail Heriot, professor at University of San Diego Law School, argues yes in an opinion piece in the WSJ last week. She revisits an explosive law review article by UCLA law professor Richard Sander ("A Systematic Analysis of Affirmative Action in American Law Schools"):

Mr. Sander calculated that there are fewer black attorneys today than there would have been if law schools had practiced color-blind admissions -- about 7.9% fewer by his reckoning. He identified the culprit as the practice of admitting minority students to schools for which they are inadequately prepared. In essence, they have been "matched" to the wrong school....

Mr. Sander's original article noted that when elite law schools lower their academic standards in order to admit a more racially diverse class, schools one or two tiers down feel they must do the same. As a result, there is now a serious gap in academic credentials between minority and non-minority law students across the pecking order, with the average black student's academic index more than two standard deviations below that of his average white classmate.

Not surprisingly, such a gap leads to problems. Students who attend schools where their academic credentials are substantially below those of their fellow students tend to perform poorly.

The reason is simple: While some students will outperform their entering academic credentials, just as some students will underperform theirs, most students will perform in the range that their academic credentials predict. As a result, in elite law schools, 51.6% of black students had first-year grade point averages in the bottom 10% of their class as opposed to only 5.6% of white students. Nearly identical performance gaps existed at law schools at all levels....

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....

(This mismatch theory and critique of affirmative action is not new. It appeared, for example, in Dinesh D'Souza's Illiberal Education, which came out in 1991.)

Predictably, the legal establishment didn't react well, an attitude that is in keeping with the admissions community's code of silence on the subject:

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.

I'll let people draw their own conclusions about the data (read the criticisms of the Sander article here and here and his responses here), but I can't say I approve of this don't-ask-don't-tell mentality when it comes to affirmative action. Let's get the facts out there and see what they tell us.