[Paleopsych] Stan. L. Rev.: Richard H. Sander: A Systemic Analysis of Affirmative Action in American Law Schools
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Stan. L. Rev.: Richard H. Sander: A Systemic Analysis of
Affirmative Action in American Law Schools
[First, a report on the fall out from the article from News bulletin from
the Chronicle of Higher Education, 5.4.15. Here are two paragraphs from
that report:
Michele Landis Dauber, an associate professor at Stanford Law School,
argues that the staff of her law school's student-run law review does
not have the expertise to realize that Mr. Sander's study was filled
with errors and unsubstantiated conclusions.
"Stanford's name is being tied up with a piece of crap that never
should have been published and has no merit of any sort," she said in
an interview. "The publication of this article is a clarion call for
law professors to get their houses in order and institute a system of
peer review" in legal publishing, she said.
[I wonder whether she wants the peer reviewers to be especially on the
lookout for wickedness. Here's the whole report. The article itself
follows.]
Combatants Over Affirmative Action in Admissions Await Law-Review Issue
That's Their Next Battleground
[45]By KATHERINE S. MANGAN
Rarely does a student-run journal generate the sort of nervous
anticipation and borderline paranoia created by the May issue of the
Stanford Law Review.
Manuscripts for the forthcoming issue are flying back and forth among
legal scholars, many of whom are rebutting a salvo launched at
affirmative action in the November 2004 issue of the journal.
In that issue, Richard H. Sander, a law professor at the University of
California at Los Angeles, published a study of law students
concluding that affirmative-action beneficiaries are more likely than
their peers to receive poor grades, flunk out, and fail the bar
([65]The Chronicle, November 12, 2004). He argued that such students
are being "mismatched" with top law schools, where they are in over
their heads.
Critics of that premise will get their turn in the new issue, along
with a response from Mr. Sander. He has tried, unsuccessfully, to
squelch public discussion about the occasionally testy exchanges until
next month, when the articles are published. He has asked his critics
not to provide advance copies of their articles to The Chronicle,
explaining to a Chronicle reporter that there's "an emerging meeting
of minds" on several issues, and that a public airing of their views
could lock people into adversarial positions.
But given the tenor of the 200-plus pages of commentary obtained by
The Chronicle, sparks will continue to fly both in private and in
public. Anticipating such a reaction, the law-review editors have
posted a question-and-answer section on the review's [66]Web site
about the study and the critiques of it, saying they hope the articles
will "inspire dialogue rather than division."
The arguments against Mr. Sander's paper range broadly. David B.
Wilkins, a professor at Harvard Law School, writes that affirmative
action has helped transform "a once exclusionary and insular
profession into one that is at least tolerably diverse," and that the
use of affirmative action in admissions has helped overcome
disadvantages that black lawyers face in the job market. He argues
that Mr. Sander has ignored factors that might help explain racial
achievement gaps, including the possibility that some law professors
expect less of black students.
"By focusing only on the most negative aspects of the current reality
-- i.e., that many black students receive low grades and have
difficulty passing the bar -- without giving at least equal time to
the positive news that most black lawyers are leading successful and
productive careers," Mr. Wilkins writes, "Sander's proposed disclosure
is destined to exacerbate the extent to which black law students
currently feel alienated and disengaged."
Michele Landis Dauber, an associate professor at Stanford Law School,
argues that the staff of her law school's student-run law review does
not have the expertise to realize that Mr. Sander's study was filled
with errors and unsubstantiated conclusions.
"Stanford's name is being tied up with a piece of crap that never
should have been published and has no merit of any sort," she said in
an interview. "The publication of this article is a clarion call for
law professors to get their houses in order and institute a system of
peer review" in legal publishing, she said.
In her article, Ms. Dauber observes that Mr. Sander's article "created
unjustified doubt in the minds of black law students about their
abilities" and "doubt in the minds of politicians about whether what
they are doing is really harming those they wanted to help." The
November article also raised doubts, she adds, among legal educators
about whether they should support affirmative action.
Another critique is offered by a four-person team: William C. Kidder,
a researcher at the Equal Justice Society, an advocacy group based in
San Francisco; David L. Chambers, an emeritus professor of law at the
University of Michigan at Ann Arbor; Richard O. Lempert, a law
professor at Michigan; and Timothy T. Clydesdale, an associate
professor of sociology at the College of New Jersey.
Ending affirmative action, they say, would cut the number of black law
students -- especially at the most prestigious schools -- and those
who remained would feel conspicuous and isolated. It would also reduce
the number of black lawyers produced annually by 30 percent to 40
percent, rather than increasing the number, as Mr. Sander argued. The
critique further predicts that with fewer black students attending the
most prestigious schools, there would be fewer black lawyers to become
law professors, law-firm partners, and judges.
The May law review's final article, written by Ian Ayres, a professor
at Yale Law School, and Richard Brooks, an associate professor of law
at Yale, does agree with Mr. Sander that "the average black law
student's grades are jaw-droppingly low." They acknowledge that
"attending law school is a very risky proposition for many black law
students" and that educators cannot afford to ignore the problem.
If Mr. Sander had simply pointed out those disparities, Mr. Ayres and
Mr. Brooks argue, his study never would have created a furor. What
they vigorously dispute is his assertion that affirmative action is
largely to blame for the problems, and that ending the practice would
increase the number of black lawyers. Their study tentatively
concludes that the opposite would occur: Ending affirmative action
would result in fewer black lawyers.
Mr. Sander's response to his critics is that their complaints are
"surprisingly toothless." Furthermore, he says, none of the authors
have offered a better explanation for the achievement gaps, and none
have offered a solution. To judge by the arguments to be published
next month, a meeting of the minds on affirmative action in America's
law schools is a long way off.
_________________________________________________________________
Background articles from The Chronicle:
* [67]Affirmative Action and Military Recruiting Spur Debate at
Law-School Meeting (1/21/2005)
* [68]Federal Court Declines to Set New Limits on Affirmative Action
(1/7/2005)
* [69]Does Affirmative Action Hurt Black Law Students? (11/12/2004)
* [70]In Search of Diversity on Law Reviews (9/5/2003)
* [71]Affirmative Action Survives, and So Does the Debate (7/4/2003)
* [72]White Students Do Better on LSAT Than Minority Classmates With
Similar GPA's, Report Says (8/30/2001)
References
45. mailto:katiemangan at austin.rr.com
65. http://chronicle.com/weekly/v51/i12/12a03501.htm
66. http://lawreview.stanford.edu/
67. http://chronicle.com/weekly/v51/i20/20a01901.htm
68. http://chronicle.com/weekly/v51/i18/18a03401.htm
69. http://chronicle.com/weekly/v51/i12/12a03501.htm
70. http://chronicle.com/weekly/v50/i02/02a04501.htm
71. http://chronicle.com/weekly/v49/i43/43s00101.htm
72. http://chronicle.com/daily/2001/08/2001083003n.htm
E-mail me if you have problems getting the referenced articles.
[The article itself to come. "Intelligence" appears once, in a footnote
(143). "Herrnstein," "Murray," "genetic," "biological," and "innate" do
not appear at all. "Cognitive," though appears several time, twice in one
paragraph in the text and again in two footnotes. Here they are:
Of course, we sense in our day-to-day dealings with professionals that
cognitive skill and subject mastery do matter. We value doctors, lawyers,
and engineers who are smart, who can easily explain competing theories,
who can remember minutiae about their fields, who are good
problem-solvers. But perhaps it is the case that above some basic
threshold, variations in these skills are less important to job
performance and success than many other things, such as how conscientious,
well-spoken, diligent, likable, or ethical someone is - things which
possibly are only weakly correlated with cognitive skills and which are
almost never measured along the path to becoming a lawyer.
n143. Claude M. Steele & Joshua Aronson, Stereotype Threat and the Test
Performance of Academically Successful African Americans, in The
Black-White Test Score Gap 401 (Christopher Jencks & Meredith Phillips
eds., 1998). Steele and Aronson theorize that the performance of blacks on
tests is worse when they perceive those tests to be measures of
"intelligence" or "cognitive skills," because they are aware of the
general pattern of lower black performance on such tests. Fear of
conforming to the "stereotype" decreases their concentration and
confidence during the test.
n175. In other words, the data show that if blacks were admitted to law
school through race-neutral selection, they would perform as well as
whites. As I have noted, there is nonetheless a very large black-white
credentials gap among those applying to law school, and this gap does not
disappear when one uses simple controls for such glib explanations as
family income or primary-school funding. Researchers have made great
strides over the past generation in accounting for the black-white gap in
measured cognitive skills. The dominant consensus is that: (a) the gap is
real, and shows up under many types of measurement; (b) the gap is not
genetic, i.e., black infants raised in white households tend to have the
same or higher cognitive skills as whites raised in the same conditions;
and (c) there are a variety of cultural and parenting differences between
American blacks and whites (e.g., time children spend reading with parents
or watching television) that substantially contribute to measured skill
gaps. On these points, see the excellent essays in The Black-White Test
Score Gap, supra note 143, particularly chapters one through five. Jim
Lindgren has pointed out that in the National Survey data analyzed in
Table 5.2, the "race" coefficients become at least weakly significant (and
negative) if one does not include those not reporting race with white
students. So far as I can determine (from other data provided by some
participating schools), students not reporting race were predominantly
white or Asian, which supports the approach taken in this table. In any
case, the race effects are still extremely weak. Under any formulation,
academic outcomes for all racial groups are dominated by academic
credentials, not race.
[I did not know this about "(b) the gap is not genetic, i.e., black
infants raised in white households tend to have the same or higher
cognitive skills as whites raised in the same conditions." It is so
extraordinary that there should be a flock of confirming studies. It would
not have sunk below the waves.]
[At last, the article itself:
Stan. L. Rev.: Richard H. Sander: A Systemic Analysis of Affirmative Action in
American Law Schools
Stanford Law Review, 4.11
57 Stan. L. Rev. 367
*Professor of Law, UCLA; Ph.D., Economics, Northwestern University. I owe
special thanks to two people who have effectively been collaborators on
this project. Patrick Anderson has been my research associate throughout
the conceiving and writing of this Article, worked full-time on this
project for several months, and will be my coauthor of a forthcoming book
on affirmative action. Dr. Robert Sockloskie managed the databases and
collaborated on the statistical analyses presented herein. I have received
exceptional support from the UCLA School of Law and its Dean's Fund. The
Empirical Research Group and its associate director, Joe Doherty, have
provided ongoing research support and outstanding technical assistance.
The "After the JD" study, which I have helped steer for the past five
years and on which I draw in Part VII, received support from the American
Bar Foundation, the National Association of Law Placement, the National
Science Foundation, the Soros Fund, the Law School Admission Council
(LSAC), and the National Conference of Bar Examiners. The LSAC also
supported earlier empirical research of mine that I draw upon in this
Article. I received very helpful, detailed comments on early drafts from
Alison Anderson, Bernard Black, Evan Caminker, David Chambers, Roger
Clegg, William Henderson, Richard Kahlenberg, Lewis Kornhauser, James
Lindgren, Robert Nelson, James Sterba, Stephan Thernstrom, Jon Varat,
Eugene Volokh, David Wilkins, and Doug Williams. I also benefited from
comments at symposia at the UCLA School of Law, the Rand Institute for
Civil Justice, and the 2004 annual meeting of the Law & Society
Association, where I presented earlier versions of this Article. Editors
and staff at the Stanford Law Review provided exceptional substantive
feedback and editorial support. My wife, Fiona Harrison, provided
indispensable intellectual and emotional sustenance throughout this
effort, and fundamentally reshaped the Introduction and Part II. I, alas,
retain full responsibility for any errors that remain. My deep thanks to
all who helped make this work possible.
SUMMARY:
... Since Bakke, universities have often tended to justify affirmative
action for its contributions to diverse classrooms and campuses. ... In
addition to providing some context and perspective, I try to make clear
how Bakke, while legitimating affirmative action, created distinctions
that produced a code of silence among law schools about their racial
preference programs, and deterred meaningful research. ... The Somers's D
behind the simulated admissions curve shown in Figure 2.4, by contrast, is
.35.A logistic regression of the University of Michigan Law School's 1999
admissions, using only an applicant's academic indices and her race (we do
not have data on residency) yields a Somers's D of .88. ... The LSAC-BPS
collected a wide array of information about the study participants:
responses to several questionnaires, data on law school performance, bar
passage, and - of immediate relevance here - data on race, LSAT score, and
undergraduate GPA. ... The most conclusive way to demonstrate that law
school racial preferences cause blacks to learn less and to perform worse
would be an experiment comparing matched pairs of blacks admitted to
multiple schools, with the "experimental" black student attending the most
elite school admitting them and the "control" black student attending a
significantly less elite school. ...
TEXT:
Introduction
For the past thirty-five years, American higher education has been
engaged in a massive social experiment: to determine whether the use of
racial preferences in college and graduate school admissions could speed
the process of fully integrating American society. Since Bakke, n1
universities have often tended to justify affirmative action for its
contributions to diverse classrooms and campuses. But the overriding
justification for affirmative action has always been its impact on
minorities. Few of us would enthusiastically support preferential
admission policies if we did not believe they played a powerful,
irreplaceable role in giving nonwhites in America access to higher
education, entree to the national elite, and a chance of correcting
historic underrepresentations in the leading professions.
Yet over the years of this extraordinary, controversial effort, there
has never been a comprehensive attempt to assess the relative costs and
benefits of racial preferences in any field of higher education. The most
ambitious efforts have been works like The Shape of the River and The
River Runs Through Law School. n2 These have provided valuable evidence
that the beneficiaries of affirmative action at the most elite
universities tend, by and large, to go on to the kinds of successful
careers pursued by their classmates. This is helpful, but it is only a
tiny part of what we need to know if we are to assess affirmative action
as a policy in toto. What would have happened to minorities receiving
racial preferences had the preferences not existed? How much do the
preferences affect what schools students attend, how much they learn, and
what types of jobs and opportunities they have when they graduate? Under
what circumstances are preferential policies most likely to help, or harm,
their intended beneficiaries? And how do these preferences play out across
the entire spectrum of education, from the most elite institutions to the
local night schools?
These are the sorts of questions that should be at the heart of the
affirmative action debate. Remarkably, they are rarely asked and even more
rarely answered, even in part. They are admittedly hard questions, and we
can never conduct the ideal experiment of rerunning history over the past
several decades - without preferential policies - to observe the
differences. But we can come much closer than we have to meaningful
answers. The purpose of this Article is to pursue these questions within a
single realm of the academy: legal [*369] education in the United States.
Several remarkable data sets on law schools and the early careers of young
lawyers have recently emerged. Together, they make it possible to observe
and measure the actual workings of affirmative action to an unprecedented
degree. Here we begin the application of that data to the question of how
much affirmative action across American law schools helps and hurts blacks
seeking to become lawyers. The results in this Article are not intended to
be definitive; they are intended to take us several steps in a new
direction.
My goal in this Article is to be systemic - that is, to analyze legal
education as a complete, interlocking system. As we will see, the
admissions policies of law schools, as within any discipline, are
necessarily interdependent. Individual schools have less freedom of action
than an outsider might assume. Moreover, one cannot understand the
consequences of racial preferences without understanding the relative
trade-offs for students attending schools in different tiers of the
education system. In many ways, law schools are an ideal subject for this
type of systemic approach. The vast majority of states have fairly uniform
educational requirements for lawyers, and the vast majority of law schools
are licensed by the same national organizations. Nearly all aspirants to
law school go through a similar application process and take a uniform
exam, the Law School Admission Test (LSAT). First-year law students across
the country follow similar curricula and are graded predominantly on a
curve. Nearly all graduates of law school who want to practice law must
take bar exams to begin their professional careers. n3 These uniformities
make comparisons within the legal education system much easier. At the
same time, the 180-odd accredited law schools in the United States
encompass a very broad hierarchy of prestige and selectivity; like the
legal profession itself, legal education is more stratified than most
nonlawyers realize. This makes legal education an excellent candidate for
the systemic analysis of affirmative action. If racial preferences are
essential anywhere for minorities to vault into the more elite strata,
they should be essential here.
My focus in this Article is on the effects racial preferences in
admissions have on the largest class of intended beneficiaries: black
applicants to law school. The principal question of interest is whether
affirmative action in law schools generates benefits to blacks that
substantially exceed the costs to blacks. The "costs" to blacks that flow
from racial preferences are often thought of, in the affirmative action
literature, as rather subtle matters, such as the stigma and stereotypes
that might result from differential admissions standards. These effects
are interesting and important, but I give them short shrift for the most
part because they are hard to measure and there is not enough data
available that is thorough or objective enough for my purposes. [*370] The
principal "cost" I focus on is the lower actual performance that usually
results from preferential admissions. A student who gains special
admission to a more elite school on partly nonacademic grounds is likely
to struggle more, whether that student is a beneficiary of a racial
preference, an athlete, or a "legacy" admit. If the struggling leads to
lower grades and less learning, then a variety of bad outcomes may result:
higher attrition rates, lower pass rates on the bar, problems in the job
market. The question is how large these effects are, and whether their
consequences outweigh the benefits of greater prestige.
My exposition and analysis in this Article focus on blacks and whites.
I do this principally for the sake of simplicity and concreteness. Many of
the ideas that follow are complicated; to discuss them in the nuanced way
necessary to take account of American Indians, Hispanics, and Asians would
force me to make the narrative either hopelessly tangled or unacceptably
long. And if one is going to choose a single group to highlight, blacks
are the obvious choice: the case for affirmative action is most compelling
for blacks; the data on blacks is the most extensive; and law school
admissions offices treat "blacks" as a group quite uniformly - something
that is not generally true for Hispanics or Asians. I concede that any
discussion of affirmative action that ignores other ethnic groups (who
often make up a majority of the recipients of preferences) is seriously
incomplete. I am nearing completion of a larger work (to be published as a
book) that, among other things, replicates many of the analyses found in
this Article for other racial groups.
* * *
No writer can come to the subject of affirmative action without any
biases, so let me disclose my own peculiar mix. I am white and I grew up
in the conservative rural Midwest. But much of my adult career has
revolved around issues of racial justice. Immediately after college, I
worked as a community organizer on Chicago's South Side. As a graduate
student, I studied housing segregation and concluded that selective
race-conscious strategies were critical, in most cities, to breaking up
patterns of housing resegregation. In the 1990s, I cofounded a civil
rights group that evolved into the principal enforcer (through litigation)
of fair housing rights in Southern California. My son is biracial, part
black and part white, and so the question of how nonwhites are treated and
how they fare in higher education gives rise in me to all the doubts and
worries of a parent. As a young member of the UCLA School of Law faculty,
I was deeply impressed by the remarkable diversity and sense of community
the school fostered, and one of my first research efforts was an extensive
and sympathetic analysis of academic support as a method of helping the
beneficiaries of affirmative action succeed in law school. n4 Yet as I
began my studies of legal [*371] education in the early 1990s, I found
myself troubled by much of what I found. The first student survey I
conducted suggested that UCLA's diversity programs had produced little
socioeconomic variety; students of all races were predominantly upper
crust. n5 Black-white performance gaps were very large, and this had
visible effects on classroom interaction. I began to ask myself some of
the questions explored in this Article, but for years the lack of data
seemed an insuperable barrier to anything more than casual speculation. At
the same time, I was somewhat dismayed by the unwillingness of many
architects of racial preferences at law schools to be candid about how
these preferences operated. It seemed to me that debate and discussion in
the area were unduly circumscribed; hard questions about what we were
doing were rarely asked within the academy - in part, admittedly, because
of the desire to protect the delicate sense of community.
I therefore consider myself to be someone who favors race-conscious
strategies in principle, if they can be pragmatically justified. Racial
admissions preferences are arguably worth the obvious disadvantages - the
sacrifice of the principle of colorblindness, the political costs - if the
benefits to minorities substantially exceed the costs to minorities. n6 By
the same token, if the costs to minorities substantially exceed the
benefits, then it seems obvious that existing preference programs should
be substantially modified or abandoned. Even if the costs and benefits to
minorities are roughly a wash, I am inclined to think that the enormous
social and political capital spent to sustain affirmative action would be
better spent elsewhere. n7
What I find and describe in this Article is a system of racial
preferences that, in one realm after another, produces more harms than
benefits for its putative beneficiaries. The admission preferences
extended to blacks are very large and do not successfully identify
students who will perform better than one would predict based on their
academic indices. Consequently, most black law applicants end up at
schools where they will struggle academically and fail at higher rates
than they would in the absence of preferences. The net trade-off of higher
prestige but weaker academic performance substantially harms black [*372]
performance on bar exams and harms most new black lawyers on the job
market. Perhaps most remarkably, a strong case can be made that in the
legal education system as a whole, racial preferences end up producing
fewer black lawyers each year than would be produced by a race-blind
system. n8 Affirmative action as currently practiced by the nation's law
schools does not, therefore, pass even the easiest test one can set. In
systemic, objective terms, it hurts the group it is most designed to help.
* * *
The Article is organized as follows: Part I briefly recounts the
development of racial preferences in legal education admissions. In
addition to providing some context and perspective, I try to make clear
how Bakke, while legitimating affirmative action, created distinctions
that produced a code of silence among law schools about their racial
preference programs, and deterred meaningful research. In Part II, I try
to explicate exactly what we mean by "racial preferences," creating a more
concrete vocabulary than the vague and sometimes contradictory terms used
by the courts, and applying these concepts to some specific cases,
including the University of Michigan Law School admission policies
examined in Grutter. n9 Part III examines whether racial preferences are
limited to the most "elite" schools, as is often claimed. I find that the
current structure of preferences creates a powerful "cascade effect" that
gives low-and middle-tier schools little choice but to duplicate the
preferences offered at the top.
Part IV considers the question of whether the numerical predictors
heavily used by law schools are either biased against minorities or fairly
useless in predicting actual outcomes. If either claim is true, then we
would expect racial preferences in admissions to have only minor harmful
effects on the performance of beneficiaries. In other words, although we
might argue that preferences are unfair, most beneficiaries would perform
at levels close to everyone else and the system would work to achieve its
intended effects. I find, however, compelling evidence that the numerical
predictors are both strong and unbiased. Those unconvinced by statistical
predictors may be convinced by Part V, which presents comprehensive data
on how blacks and whites actually [*373] perform in law school. In the
vast majority of American law schools, median black grade point averages
(GPAs) at the end of the first year of law school are between the fifth
and tenth percentile of white GPAs; they rise somewhat thereafter only
because those black students having the most trouble tend to drop out. The
black-white gap is the same in legal writing classes as it is in classes
with timed examinations. Because of low grades, blacks complete law school
less often than they would if law schools ignored race in their admissions
process.
Part VI explores how affirmative action affects black success on
postgraduate bar examinations. At most law schools in most of the United
States, ultimate bar passage rates for graduates are very high - generally
above eighty percent. If we use regression analysis to predict bar
passage, we find that going to an elite school helps a little, but getting
good grades is much more important. Blacks and whites at the same school
with the same grades perform identically on the bar exam; but since racial
preferences have the effect of boosting blacks' school quality but sharply
lowering their average grades, blacks have much higher failure rates on
the bar than do whites with similar LSAT scores and undergraduate GPAs.
Affirmative action thus artificially depresses, quite substantially, the
rate at which blacks pass the bar. Combined with the effects on law school
attrition examined in Part V, many blacks admitted to law school with the
aid of racial preferences face long odds against ever becoming lawyers.
Part VI ends with an exploration of why "grades" should be more important
than "eliteness" in passing the bar. A growing body of evidence suggests
that students who attend schools where they are at a significant academic
disadvantage suffer a variety of ill effects, from the erosion of
aspirations to a simple failure to learn as much as they do in an
environment where their credentials match those of their peers.
Part VII examines the job market for new lawyers. The premise of
affirmative action is that elevating minorities to more elite schools will
help them secure high-prestige jobs and thus integrate the profession at
its highest levels. This proves to be true at the very top of the law
school hierarchy: black graduates at Harvard and Yale have their pick of
jobs. But in most of the job market, legal employers in both private firms
and government seem to attach more weight to grades than school eliteness;
so again, the school shuffling involved in affirmative action tends to be
a net minus for the typical new black lawyer. Moreover, the data shows
that many employers exercise strong preferences for blacks in their own
hiring. Blacks who have passed the bar and have good grades from any law
school do very well in the job market.
Part VIII examines the claim that the number of new black lawyers
produced each year would drop dramatically without racial preferences. The
claim does not survive close scrutiny. Because the cascade effect
principally reshuffles black applicants among law schools rather than
expanding the pool, about 86% of blacks currently admitted to some law
school would still gain admission to the system without racial
preferences. Those who would not be [*374] admitted at all have, under
current practices, very small chances of finishing school and passing the
bar. The 86% admitted to a race-blind system would graduate at
significantly higher rates, and pass the bar at substantially higher
rates, than they do now. Under a range of plausible assumptions,
race-blind admissions would produce an increase in the annual number of
new black lawyers. It is clear beyond any doubt that a race-blind system
would not have severe effects on the production of black lawyers, and that
the black lawyers emerging from such a system would be stronger attorneys
as measured by bar performance.
In the Conclusion, I consider what steps law schools should consider in
light of these findings. Despite the serious failings identified here,
some good arguments for more narrowly targeted use of affirmative action
by law schools remain. There are specific research questions that should
be pursued much further. But the need for substantial internal reforms,
before courts or legislatures foreclose all room to maneuver, is clear.
I. A Note on Origins
In the academic year that began in the fall of 2001, roughly 3400 blacks
were enrolled in the first-year classes of accredited law schools in the
United States, constituting about 7.7% of total first-year enrollment. n10
This is very close to the proportion of blacks (8.9% in 2001 n11) among
college graduates - the pool eligible to apply to law schools. Although
blacks are underrepresented in law school compared to their numbers among
all young adults (by a factor of nearly 2:1), n12 law schools compare well
with other areas of postbaccalaureate education in their recruitment and
enrollment of black students. n13
[*375] It was not always so. In 1964, there were only about three
hundred first-year black law students in the United States, and one-third
of these were attending the nation's half-dozen historically black law
schools. n14 Blacks accounted for about 1.3% of total American law school
enrollment, n15 and since blacks also accounted for about 1.1% of all
American lawyers, n16 we can infer that their relative enrollment numbers
had been flat for quite some time. The story was much the same for
Mexican-Americans, Puerto Ricans, and Asians (though of course the
relative numbers of these groups were much smaller at the time). n17
Minorities were generally underrepresented by a factor of five or six in
graduate education, but they fared particularly badly in law schools. n18
In the South, at least, black underrepresentation was an obvious
by-product of deliberate discrimination. Some southern states excluded
blacks completely from public law schools; others created Jim Crow law
schools with tiny black enrollments. n19 I have found no study that
attempts to document the extent of racial discrimination in northern law
school admissions. Certainly many northern schools admitted blacks (and
produced some famous black [*376] graduates n20), and it is doubtful that
many of these schools sought racial information about applicants. But it
seems likely enough that a variety of informal barriers helped to keep
enrollments quite low - lower than black enrollments in many other types
of northern graduate schools. n21
The conscience of the legal academy quivered noticeably in the early
1960s, as the civil rights movement swept the nation and many law schools
became prominent centers of reform activity. As early as 1962, the
American Association of Law Schools's (AALS) Committee on Racial
Discrimination in Law Schools was unable to identify any clear practices
of admissions discrimination outside the South; n22 by 1964, this group
had concluded that there was "no longer any discrimination problem of
sufficiently serious proportion to deserve the maintenance of a large
committee." n23 Yet at mid-decade, black enrollment was still miserably
low and black attrition rates were miserably high (about fifty percent).
n24
During the 1964-1967 period, when civil rights issues dominated public
discourse, but affirmative action programs were still largely unknown,
many within the legal education community identified low black enrollment
as a problem and began to think systematically about solutions. Most
observers agreed that several factors contributed to underrepresentation:
a scarcity of black candidates with strong credentials; a perception among
black college graduates that law schools and the legal profession were
particularly rigid bastions of tradition, and thus less attractive than
other routes to the middle class; and the cost of law school and the small
supply of financial aid. n25 Several [*377] schools launched outreach
programs in the mid-1960s aimed at identifying and recruiting promising
blacks. n26
Ironically, during the same period when law schools were eliminating
the last vestiges of discrimination and finally reaching out to blacks,
the schools were also becoming transformed into more selective
institutions. As the ranks of college graduates swelled in the late 1950s
and 1960s, the number of applicants to law school rose sharply. The LSAT,
introduced in the late 1940s, precipitated the development and adoption of
more objective admissions practices. By the late 1960s and early 1970s,
admission to many law schools had become dramatically more competitive.
n27
The rise of more competitive admissions placed a new hurdle in the path
of blacks just getting a foothold in mainstream American education. It was
not hard to deduce that equal access alone would not produce large numbers
of black law students. As early as 1964, an AALS report explored early
stirrings of the idea of racial admissions preferences:
Several institutions have either made active efforts to recruit well
qualified Negro students or have given consideration to the possibility of
adjusting admission standards to accommodate the few Negro applicants
whose records approach acceptability ... .
...
The suggestion has been made that entrance requirements might be
lowered a bit to accommodate the cultural deficiencies so frequently found
in the case of the Negro applicant. In favor of this is the occasional
experience of the Negro student with a lower aptitude score who
nevertheless gives a good or even outstanding performance in law school.
The objections, however, deserve serious consideration: (1) Inverse
discrimination is unfair to white students; (2) lowering admission
standards to help unqualified Negroes is unfair to the Negro student and
to the law school; (3) the lack of background and undergraduate training
of Negroes generally must be remedied, not in the law schools, but in the
elementary schools, high schools and colleges. It is too late when they
reach law school. n28
[*378] Although rather patronizing in tone, this early report evidences
how quickly the thoughts of law school administrators advanced from the
idea of eliminating antiblack discrimination to the idea of instituting
black admissions preferences. It also remarkably foreshadows many of the
affirmative action debates that emerged more widely in the 1970s.
Still, there is not much evidence that many law schools actually
engaged in preferential admissions until 1968 and 1969. n29 The release of
the Kerner Commission Report in March 1968, n30 the assassination of
Martin Luther King, Jr., in April, and the renewal of rioting in the inner
cities that followed produced a general sense of national crisis in race
relations. Gradualism as a philosophy of racial justice seemed
discredited; many of those running both private and public institutions
felt they had to do something rapid and dramatic to demonstrate progress
in black access. A large number of colleges and graduate programs,
including law schools, therefore initiated or accelerated racial
preference programs in 1968 and succeeding years. n31 Ahead of most other
disciplines, a number of leaders in legal education had been laying the
groundwork for a large-scale racial preferences program a year before
King's death. The Council on Legal Education Opportunity (CLEO), organized
by the AALS, the Law School Admission Council (LSAC), the American Bar
Association (ABA), and the National Bar Association, with funding from the
federal Office of Equal Opportunity (OEO) and the Ford Foundation, was
created in 1967 to develop large-scale summer programs for promising
nonwhite students with low academic credentials. Participating law schools
would help to host the programs and would agree in advance to admit CLEO
students who successfully completed the summer program.
Fueled by the broader shift in higher education toward racial
preferences, the CLEO program took off, expanding from around one hundred
students in 1968 to almost four hundred in 1969. n32 Many schools launched
their own outreach and summer programs. The effect on enrollments was
impressive. The number of black first-year law students outside the
historically black schools [*379] rose from about two hundred in 1964-1965
n33 to perhaps five hundred in 1968-1969, eight hundred in 1969-1970, n34
and seventeen hundred in 1973-1974. n35
During these early years, no bones were made about the application of
different standards to minority applicants. Indeed, it was widely argued
that elemental fairness required different standards; the LSAT in
particular was regarded as a culturally biased test that substantially
understated the academic potential of black students. n36 Moreover, it was
believed that conventional standards were most inapplicable to
socioeconomically disadvantaged minorities, so black and Latino students
from low-income families were admitted under especially relaxed standards.
The result was, initially, very high attrition rates and low bar passage
rates among the beneficiaries of preferences. The average minority
attrition rate at ABA-approved law schools was [*380] approximately thirty
percent, and this was despite special efforts to promote retention. n37 As
one admissions officer commented in the mid-1970s:
When the nation's law schools initiated [affirmative action], while
readily admitting that the admissions standards to be used for minority
applicants were "different" or even lower, the schools also assured the
bar that the same rigorous standards applied to white students would be
applied to minority students. The schools were saying in effect, that
while entrance credentials for minorities might be lower, retention and
graduation standards would remain the same ... . [But] the nation's bar
watched with some dismay as the schools changed grading systems, altered
retention rules, readmitted students dismissed for scholarship, and in
some cases graduated students who clearly did not meet the past standards
of the school. n38
By 1975, however, law schools had moved into a "second generation" of
affirmative action. Admissions officers and deans had concluded that the
LSAT and undergraduate grades did, after all, tend to be good predictors
of the eventual success of nonwhite students. n39 Many schools moved away
from dependence on CLEO to develop their own outreach programs and their
own standards for admission. At the same time, the pool of black and other
nonwhite college graduates applying to law school had expanded and
deepened enough to enable schools to maintain or expand minority
enrollments even as they toughened standards. Black enrollment stabilized
at around two thousand first-year students; Latino and Asian enrollment
grew steadily as the applicant pools grew. n40
Despite the heavier reliance on academic indices for minority
admissions during the mid-and late 1970s, the great majority of law
schools continued to use separate racial tracks to evaluate candidates and
applied very different standards to whites than to nonwhites. Perhaps the
most complete description of law school affirmative action practices at
the time comes in the 1977 amicus curiae brief submitted by the AALS in
Regents of the University of California v. Bakke, in which the Supreme
Court considered the use of racial quotas for [*381] admission to UC
Davis's medical school. n41 The brief argued that LSAT score and
undergraduate GPA were the best predictors of success in law school, n42
and that they were not biased n43 (so that no alternative indicators would
do a better job of assessing minority candidates), but that the number of
minority applicants with academic numbers comparable to the best whites
was insignificant. "This has led to the creation of "special admissions
programs' designed to produce decisions different from those that would be
produced if the process were conducted in a racially neutral way." n44
These special admissions tracks had two characteristics: they compared
academic strengths among candidates within each racial group, thus
insulating them from direct competition with whites; and they looked a
little harder at nonnumerical indicia of academic promise. n45 To place
all applicants in direct competition with one another, the brief
contended, would "exclude virtually all minorities from the legal
profession." n46
Recognizing that there was legal precedent for temporary race-conscious
programs to correct specific conditions of discrimination, the AALS brief
emphasized that "the premise of these special admissions programs is that,
in time, they will disappear. They are essentially a transitional device
to correct a time lag." n47 Boalt Hall, n48 for example, had already
eliminated its temporary [*382] preferences for Japanese-Americans; other
preferences would be eliminated as the minority pools broadened and
deepened. n49
The AALS brief is notable for its clarity and honesty; it is the most
detailed assessment I have found of law school affirmative action in the
1970s. It concludes its argument that special admissions programs are
necessary to maintain a minority presence in law schools with a passage
that is hard to read now without some sense of painful irony:
The suggestion [in the lower court decision in Bakke] that professional
schools abandon special minority admissions programs in favor of programs
for the disadvantaged or that they seek to maintain minority enrollments
by reducing reliance on quantitative predictors of academic performance
may rest upon the premise that either of these alternatives would permit
race to be taken into account sub rosa. n50 We do not imply that the court
below meant to invite such an interpretation of those suggestions, but
there are others who have suggested that in the effort to achieve racial
equality "we cannot afford complete openness and frankness on the part of
the legislature, executive, or judiciary." It need hardly be said in
response that a constitutional principle designed to be flouted should not
be imposed on schools dedicated to teaching the role of law in our
society. n51
The Supreme Court's Bakke decision in June 1978 invited exactly this type
of deception. As most readers know, the Supreme Court divided deeply in
Bakke. Justices Brennan, White, Marshall, and Blackmun held, as the AALS
urged, that racial preferences to correct general societal discrimination
should be permitted, temporarily, in higher education; n52 Justices
Stevens, Stewart, Burger, and Rehnquist held that any consideration of
race violated Title VI of the 1964 Civil Rights Act. n53 The ninth
Justice, Lewis Powell, wrote the deciding opinion, drawing on the
conservative camp to find the University of California's racial quota
illegal, but drawing on the liberal camp to hold that universities were
not completely precluded from considering race in admissions decisions.
Race, he found, could be used as one of many factors taken into account by
a university in pursuit of its legitimate desire to create a diverse
student body:
[*383]
Race or ethnic background may be deemed a "plus" in a particular
applicant's file, yet it does not insulate the individual from comparison
with all other candidates for the available seats. The file of a
particular black applicant may be examined for his potential contribution
to diversity without the factor of race being decisive when compared, for
example, with that of an applicant identified as an Italian-American if
the latter is thought to exhibit qualities more likely to promote
beneficial educational pluralism. Such qualities could include exceptional
personal talents, unique work or service experience, leadership potential,
maturity, demonstrated compassion, a history of overcoming disadvantage,
ability to communicate with the poor, or other qualifications deemed
important. In short, an admissions program operated in this way is
flexible enough to consider all pertinent elements of diversity in light
of the particular qualifications of each applicant, and to place them on
the same footing for consideration, although not necessarily according
them the same weight. n54
All of this seemed to preclude quotas and segregated admissions tracks,
but there was a logical flaw at the heart of Powell's opinion. The careful
calibration of the "weight" given to membership in a specific racial group
could produce highly predictable admission numbers. The lack of any clear
test in Bakke to distinguish illegal discrimination from the legal pursuit
of diversity left schools free to evade Powell's intent.
The AALS, which had been forthright in advocating for racial
preferences, now faced the task of providing nuanced instruction to member
schools in the art of sub rosa preferences. "It is difficult to see how an
admissions officer or committee can exercise any degree of preference in a
race-conscious program without some notion of how many minority applicants
are desired in the final mix of the student body," n55 an AALS report
noted, but Bakke seemed to permit schools "extremely broad discretion."
n56 The difference between a pre-Bakke quota and a post-Bakke "plus," an
AALS lawyer noted, is "nothing more than a smirk and a wink." n57
The response of law schools - and indeed, of higher education in
general - was to go underground. Racially separate admissions tracks were
draped with fig leaves of various shapes and sizes to conceal actual
practices, which changed hardly at all. Enrollments also remained
constant. An exhaustive study by political scientists Susan Welch and John
Gruhl found that Bakke had no noticeable overall effect on minority law
school enrollment. n58 A survey of law school admissions officers in the
late 1980s found that only 1% of the [*384] respondents felt that Bakke
had a "significant" impact on policies n59 (even though a large majority
conceded that other law schools had had racial quotas before Bakke and 23%
agreed that their own school had had at least racial "goals " before Bakke
n60). The number of black first-year law students fell about 2% from 1978
to 1979, but the number of Hispanic first-years grew that year, and black
matriculation reached an unprecedented high in 1981. n61 The most concrete
practical effect, according to a number of schools, was a broadening of
the range of racial and ethnic groups designated to receive "plus"
consideration, in line with Justice Powell's emphasis on the value of
diversity. n62
The UCLA School of Law's response to Bakke was probably more formal and
elegant than that of the typical law school, but it captured the general
approach. The school created a faculty committee led by distinguished
constitutional scholar Ken Karst. The resulting study, which became known
as the "Karst Report," discussed Bakke carefully, and, following Powell's
controlling opinion, identified ten types of "diversity" which were
important to legal education at UCLA, only one of which was race. n63 The
report recommended that UCLA split its admissions process in two. Sixty
percent of the seats would be awarded based on the academic strength of
students (measured primarily with conventional quantitative indices).
Forty percent of admissions decisions would blend a consideration of
academic strength with the types of diversity each applicant could
potentially bring to the school. The Karst Report sounded like a dramatic
retreat from the earlier, race-based policies - enough to provoke angry
student protests. The students need not have worried; even under the
admissions regime inspired by the Karst Report, which was promptly adopted
by the faculty and which guided law school admissions policy from 1979 to
1997, race was the preeminent diversity factor, determining 80% to 90% of
all admissions under the diversity program. Nonwhite enrollment at UCLA
substantially increased in the years after Bakke. n64 But the operation of
preferences was invisible to the outside eye. n65
[*385] Other schools, more candid or less artful about what they were
doing, occasionally encountered legal difficulties. Boalt Hall preserved
racially segregated admissions reviews and waiting lists until an
investigation by the first Bush administration's Department of Education
forced it to abandon the practices in 1992. n66 Stanford Law School and
the law schools at the University of Michigan, University of Texas, and
the University of Wisconsin all maintained admissions processes that were
racially segmented in one way or another for many years after Bakke. n67
What has been consistent since Bakke throughout the world of legal
education is a code of silence on preferential policies. Schools have been
loath to disclose the degree to which they depend on numerical indicators
and have been even more secretive about the extent to which they take
racial factors into account. The relatively vibrant research and
discussion about affirmative action that characterized the late 1960s and
1970s almost totally disappeared in the 1980s and 1990s. n68 When law
school deans, in various contexts, have been asked point-blank about the
extent of racial preferences, they have suggested that such preferences
were either minimal or nonexistent. n69
[*386] As we shall see in Parts II and III, racial preferences in
American law schools were quite large during this period. The size of
preferences probably changed little after Bakke, or possibly even shrank
at some schools; but for other reasons, black law school enrollment began
a second period of growth in the mid-1980s. Between 1985 and 1994, the
number of first-year black law students doubled, rising from eighteen
hundred to thirty-six hundred students (and from 4.4% to 8.1% of total ABA
first-year enrollment). n70 The increase reflected several developments:
an 8.7% increase in overall law school enrollment over the same period;
n71 an increasing acceptance of racial preferences at schools that had
previously avoided them (particularly in the South); a growing number of
black applicants; and a narrowing of the overall gap in black-white
academic credentials. n72
The nonblack minority groups, such as Hispanics, Asians, and American
Indians, were an even faster-growing presence in law school diversity
programs. In 1971, blacks accounted for 67% of all nonwhites enrolled at
ABA-accredited schools. By 1991, this had dropped to 42% (and was to fall
further, to 36%, by 2001). n73 It was not that black enrollment fell;
quite the contrary, as we have seen. The shift instead reflected three
trends: the rapidly growing non-European immigrant population of the
United States, n74 the rise in Hispanic college enrollment, n75 and the
shift of second-generation Asian-Americans away from the "hard" sciences
toward "softer" areas like the law. n76 [*387] Asians were rare enough in
the 1970s and 1980s that many law schools explicitly included them in
preference programs; as time passed and the Asian pool grew, many schools
eliminated Asian preferences altogether, while others eliminated
preferences for well-established Asian-American groups like Japanese-,
Chinese-, Indian-, and even Korean-Americans, but kept preferences for
less-prosperous Asian-American groups such as Filipino-, Vietnamese-, and
Cambodian-Americans.
Although racial preferences were no doubt pervasive throughout higher
education in the years after Bakke, law schools were unusually vulnerable
to legal challenges over what they did. In few areas was the reliance on
numerical indices as extreme as in law school admissions, and the schools
admitted large enough classes to make disparities easy to demonstrate
statistically. And, of course, law schools are uniquely familiar to
lawyers and policy advocacy groups. So it is only a little surprising that
when affirmative action in higher education reemerged as a potent
political issue in the 1990s, law schools were at the center of the
debate.
In Michigan, Texas, and Washington, rejected students (assisted or
recruited by more organized opponents of affirmative action n77) brought
lawsuits challenging the admissions practices of public law schools. n78
In each case, the plaintiffs contended that race was a predominant factor
in admissions, questioned whether Justice Powell's "diversity" goal was a
compelling interest under the Constitution, and argued that even if
diversity was a compelling goal, the school policies were not narrowly
tailored to achieve it in a constitutionally appropriate way. In essence,
they argued that the schools were letting race trump other forms of
diversity to create de facto racially segregated admissions.
The three cases followed very different paths. In the 1994 case of
Hopwood v. Texas, the district court upheld the use of racial preferences
in principle, but found that the law school's 1992 practice of having a
separate admissions committee process minority applications violated the
Fourteenth Amendment; however, since the school had abandoned this
practice at the outset of the litigation, the court found no need for
further corrective [*388] measures. n79 On appeal in 1996, the Fifth
Circuit went much further, concluding that Justice Powell's diversity
rationale in Bakke had been effectively discarded by later Supreme Court
decisions, and that it could no longer be used to justify racial
preferences. n80 When the Supreme Court declined to grant certiorari on
Hopwood that same year, n81 many commentators viewed it as a sign that the
Court favored the abolition of racial preferences in admissions.
A year later, in Smith v. University of Washington Law School, the
plaintiffs, again white students denied admission to law school, tried to
build upon the Hopwood precedent. n82 Pointing out that the school
acknowledged that it used race as a factor in admissions, the plaintiffs
sought a summary judgment ruling that the school's consideration of race
was per se unconstitutional. Both the district court and the Ninth Circuit
rejected this argument, finding that Bakke was still the controlling law
and clearly permitted some use of race. n83 The Supreme Court also let
this judgment stand. n84 Further proceedings in district court about the
actual operation of the law school's practices had been rendered largely
moot by Washington voters' adoption of Initiative Measure 200 in 1998,
which prohibited the use of race in state programs. n85
The last of this trio of cases, Grutter v. Bollinger, was brought
against the University of Michigan Law School in 1997, more or less
simultaneously with a challenge to the undergraduate admissions process at
the University of Michigan (Gratz v. Bollinger). n86 The district court
followed Hopwood in finding that Justice Powell's diversity rationale in
Bakke was not controlling and that, as a general matter, the use of race
to assemble a diverse student body was not a compelling state interest.
n87 It further found that, even if it was, the school had not narrowly
tailored its use of race in pursuit of the diversity [*389] goal. n88 In
2002, the Sixth Circuit, in a 5-4 en banc decision, reversed on both
counts, agreeing with the Ninth Circuit that Bakke was still viable, and
sanctioning for the first time a specific, post-Bakke admissions system
that took substantial account of race. n89 This time, the Supreme Court
decided to take the issue up, granting review to both Grutter and Gratz.
In June 2003, the Court handed down deeply split opinions in both
Grutter and Gratz. n90 Justice O'Connor stepped into the role previously
played by Justice Powell, siding with five Justices to rule against the
University of Michigan in Gratz, but agreeing with four Justices to rule
in favor of the University of Michigan Law School in Grutter. Justice
O'Connor found in Grutter that Powell's opinion was still good law:
diversity in a university environment was a compelling state interest. n91
The boundary between the acceptable and unacceptable use of race lay in
the degree to which race was considered in a "mechanical," or automatic,
fashion, as opposed to an "individualized" process in which race was one
of many relevant factors. n92 The college's use of race was impermissible
because minorities were assigned twenty points for their race in the
construction of an admissions scale. n93 The law school, however, did not
explicitly factor race into its admissions index at all; instead,
according to the school and Justice O'Connor, the school made its
race-blind index the starting point of a deeper inquiry into each
student's potential contribution to the school's intellectual strength and
diversity, a process that included consideration of applicant race. n94
This more nuanced process, Justice O'Connor suggested, was exactly what
Justice Powell had had in mind in Bakke. n95
So the matter stands. Justice O'Connor agreed that consideration of
race was undesirable and should be eliminated in the long run, and she
explicitly suggested that the "long run" in this case meant twenty-five
years. n96 Only two questions seemed unresolved. First, what exactly was
the touchstone of acceptably "individualized" admissions? Was the law
school's admissions process, in truth, fundamentally different from the
point system used by the college, or was the difference between
permissible and impermissible policies [*390] still the difference between
"a smirk and a wink"? And second, was the consideration of race producing
the good results that had been advanced on its behalf?
II. Defining the Role of Race in Law School Admissions
The Supreme Court's two great examinations of affirmative action in
higher education both turned on the views of a single Justice. In each
case, a moderate Justice determined that racial preferences were
permissible under some circumstances but not others. But these parallels
belie a basic difference. In Bakke, all members of the Court fundamentally
agreed on what the defendant University of California was doing at the UC
Davis Medical School: it had a quota for underrepresented minorities. n97
The Court disagreed not on the facts of the case but on what the law
allowed. Four Justices thought the need to overcome the legacy of societal
discrimination legitimated a temporary use of racial preferences; n98 four
Justices thought that any use of preferences was inappropriate where no
history of institutional discrimination justified and could guide a
specific, limited remedy. n99 Justice Powell split the Gordian knot with
his diversity rationale: universities had a compelling interest in
diversity, and race could be a legitimate "plus" factor in that quest.
In contrast, most of the debate in the Court's 2003 Michigan decisions
revolved around empirical questions. A comfortable majority of Justices
seemed to subscribe to the diversity rationale (or at least to accept it
as the Court's standard), which provides a compelling state interest for
the consideration of race. The Michigan debate concerned what use of race
is sufficiently narrowly tailored to survive scrutiny. As we have seen,
Justice [*391] O'Connor drew a sharp distinction between the undergraduate
college's system of assigning "points" to minority applicants
(impermissible), and the law school's system of "individualized
assessment" that includes a consideration of applicant race among many
other factors in the construction of a diverse class (permissible). It
seems, though, that Justice O'Connor was the only member of the Supreme
Court who thought this difference truly significant. Chief Justice
Rehnquist pointed out that the proportion of the law school's admittees
from each of three underrepresented groups (blacks, Hispanics, and Native
Americans) closely tracked the proportion of each group in the law
school's total applicant pool. n100 This looked to the Chief Justice a lot
like the setting of quotas or "racial balancing" (setting different
thresholds for different underrepresented groups), a practice that he
notes Justice O'Connor described as "patently unconstitutional." n101
Justice Kennedy thought that the law school's pursuit of a "critical mass"
of minorities looked much like a quota, with underrepresented minorities
making up between 13.5% and 13.8% of each enrolled class from 1995 through
1998. n102 Justice Thomas observed that the school's heavy reliance on
academic credentials to maximize its elite standing among law schools
meant that its quest for racial diversity was necessarily heavy-handed.
n103 Justice Souter, who was on the side of racial preferences in both
cases, gave an equally pointed critique of Justice O'Connor's empiricism:
Since college admission is not left entirely to inarticulate intuition,
it is hard to see what is inappropriate in assigning some stated value to
a relevant characteristic, whether it be reasoning ability, writing style,
running speed, or minority race. Justice Powell's plus factors necessarily
are assigned some values. The college simply does by a numbered scale what
the law school accomplishes in its "holistic review" ... .
... .
Without knowing more about how the [undergraduate admissions committee]
actually functions, it seems especially unfair to treat the candor of the
admissions plan as an Achilles' heel ... .
... Equal protection cannot become an exercise in which the winners are
the ones who hide the ball. n104
Justice Ginsburg implicitly agreed that the undergraduate college's
admissions system was substantively the same as and ethically preferable
to the law school 's: "If honesty is the best policy, surely Michigan's
accurately described, [*392] fully disclosed College affirmative action
program is preferable to achieving similar numbers through winks, nods,
and disguises." n105
It is not surprising that the Supreme Court's debate in Gratz and
Grutter was an empirical one. After all, as we saw in Part I, Powell's
diversity rationale proved so malleable that, after Bakke, law schools
were able to pursue nearly any policy they liked, so long as it was
correctly named. In dealing with the Michigan cases, the Justices were of
course jousting over ways to limit or protect affirmative action, but they
were also struggling to find meaningful ways to define permissible and
impermissible practices.
This Part has three goals: first, to suggest a way of thinking
rigorously about the operation of racial preferences in an admissions
system; second, to evaluate the University of Michigan Law School's system
by the implicit standards of Grutter and Gratz; and third, to consider how
representative the University of Michigan Law School is of law school
admissions systems generally.
* * *
Debates on racial affirmative action always involve heated exchanges on
the role of test scores and general academic "numbers" in evaluating
candidates. How useful are they? How important should they be in
admissions? How heavily are they, in reality, relied upon by admissions
officers? The first two questions are fundamental, and I return to them in
Part IV. But for now let us focus on the third question. Figure 2.1 shows
a simple mechanism for illustrating the role of academic numbers in
admissions.
[*393]
Figure 2.1: A Hypothetical Admissions Curve
[see org] The horizontal axis of this box is an index that summarizes the
academic "numbers" of an applicant in a single number. Most institutions
of higher education have an explicit index of this sort - generally a
linear combination of an applicant's test scores and GPA. At law schools,
a common version of this number is
Academic Index = 0.4 (UGPA) + 0.6 (LSAT),
with both UGPA and LSAT normalized to a one-thousand-point scale, so that
an Academic Index of one thousand would denote a perfect LSAT score and
4.0 GPA, and an Academic Index of five hundred would denote a 2.0 GPA and
a midrange LSAT. n106 Even schools that do not have an explicit index of
this sort, however, have some implicit method of jointly evaluating the
weight of grades and test scores. To facilitate much of the discussion in
this Article, I will use the term "academic index," the standard scale
from zero to one thousand, and the above formula as uniform shorthand to
compare and analyze the credentials of law school students and applicants.
[*394] The vertical axis in Figure 2.1 is a candidate's probability of
admission. By inspecting any school's admission records, one can calculate
the likelihood of an applicant's admission given her academic index. The
importance of academic indices varies from one institution to another, and
with this simple device, one can get a sense of how much admissions
decisions turn on academic credentials. If there is any factor that a
university assigns a systematic "plus " value in admissions, applicants
who possess that factor will have a separate admissions curve. For
example, if a state university favors in-state applicants over those from
outside the state, then the admissions curve of in-state applicants will
lie to the left of and above the curve for out-of-state applicants. In
other words, an in-state applicant will have a higher probability of
admission than an out-of-state applicant with the same academic numbers.
If the preference is formalized as an award of "points," like the
undergraduate admissions system at Michigan, then we will observe a fixed
gap between the in-state and out-of-state admissions curves - the two will
be a more or less constant horizontal distance apart, as illustrated in
Figure 2.2.
Figure 2.2: Hypothetical Admissions Curves Under a Formalized Point
System
[see org] Similarly, one can examine the role of race - and racial
preferences - in an admissions system by separately plotting out the
admissions curves of different [*395] racial groups. The result gives us
both vivid illustrations and a quantitative method to capture how
different preference systems operate. Let us consider how some
hypothetical admissions policies would translate into this sort of
analysis. n107
Scenario One: A multifaceted admissions process where race is a
"tie-breaker. " The more varied the criteria to which an admissions office
gives serious attention, the lower will be the slope of its admissions
curve. Using race simply as a tie-breaker between otherwise
indistinguishable black and white candidates means that at many index
levels, the black probability of admission is slightly higher than that
for whites, though not necessarily at every point (a gap will show up only
when there exists a pool of blacks and whites who are, in nonracial terms,
interchangeable). Figure 2.3 illustrates this approach.
Figure 2.3: Hypothetical Multifaceted Admissions Curves When Race Is a
Tie-Breaker
[see org] [*396] Scenario Two: A multifaceted admissions process that
relies heavily on subjective criteria and considers race, if at all, as
one of many diversity factors. If a school relies heavily on letters of
recommendation, evidence of community service, work experience,
demonstrated leadership ability, and other similar factors, and relies
only moderately on academic indices, the index coefficient of its
admissions curve will again be relatively low. If, for a given index
level, the typical black applicant has stronger nonacademic credentials
than the typical white applicant (e.g., better community service, lower
socioeconomic status), then we will see a black admissions curve that lies
consistently a bit above the white admissions curve.
If we add to this multifaceted admissions system a preference for
blacks based on race, then the gap in the two groups' admissions curves
would be even larger. For example, consider Figure 2.4. In this admissions
scheme, there is a minimum academic index threshold (approximately one
hundred) all applicants must meet to be considered admissible. All groups
have a 0% probability of admission below this threshold. Above the
threshold, the likelihood of admission rises for both blacks and whites,
though an index alone is enough to guarantee admission only at the highest
levels. At an index level of six hundred, whites have about a 50% chance
of admission and blacks have an 80% chance of admission. Blacks and whites
in this range are truly competing with one another for seats in the
school; the "plus" given to blacks is enough to substantially improve
their chances of admission, but it does not insulate them from the
competition of whites with similar academic credentials.
Figure 2.4: Justice O'Connor's Individualized Assessment Model with
Race as the Primary Diversity Criterion
[see org] [*397] This seems to be the type of system Justice O'Connor
finds permissible, and the type of system she believes the University of
Michigan Law School operates. To be constitutional, says Justice O'Connor,
"universities [cannot] insulate applicants who belong to certain racial or
ethnic groups from the competition for admission." n108 It is permissible
to give race greater weight than other nonacademic factors, but not
permissible to consider blacks only vis-a-vis one another, or to give them
a fixed, predetermined bonus. "[A] university's admissions program must
remain flexible enough to ensure that each applicant is evaluated as an
individual and not in a way that makes an applicant 's race or ethnicity
the defining feature of his or her application." n109
Justice O'Connor's guidelines, translated into the logic of the graph,
imply three essential features of a constitutional admissions system that
incorporates racial preferences. First, while race might be the single
most important nonindex factor, other nonindex factors must be given
significant weight - enough weight so that race is not the predominant
nonacademic qualification for admission. Otherwise, "diversity" would
simply be synonymous with "race," and an applicant's race would indeed be
the defining nonacademic feature of her application. It follows that the
greater the weight given to racial diversity, the more the weight given to
other diversity factors must also go up (to avoid having race dominate all
other factors). The weight given to academic indices must accordingly go
down, and the slope of the admissions curve will therefore become flatter.
Second, the probability of admission for blacks cannot be close to 100% at
any index level where the probability of admissions for whites is
substantially lower than 100%; if it were, this would mean that blacks at
that level were not in any meaningful competition with academically
comparable whites - for blacks in such ranges, their race alone would be
making them indispensable. A third essential feature of the system is the
converse of the second: the probability of admissions for whites cannot be
close to 0% at any index level where the probability of admission for
blacks is substantial - otherwise, again, blacks at that level would not
be meaningfully competing with academically comparable whites.
Graphically, Justice O'Connor's guidelines for the permissible use of race
translate closely into the type of admissions curve shown in Figure 2.4.
Scenario Three: An admissions program that relies primarily on the
academic index and awards substantial "points" to black applicants aimed
at offsetting the average lower academic numbers of blacks. There are two
obvious ways that an admissions program can clearly be unconstitutional
under Justice O'Connor's standards even without the direct use of quotas.
One way is to use the method adopted by the undergraduate college at
Michigan, which simply awarded points to underrepresented minorities to
offset their lower average academic credentials. When graphed as an
admissions curve, the black [*398] and white curves will be a nearly fixed
horizontal distance apart from one another, since each black applicant
will have a fixed number added to her index. This sort of curve is
reflected in Figure 2.5 below.
This method has an obvious appeal for a school where admissions are
primarily determined by grades and test scores. Heavy reliance on the
academic index (i.e., a high index coefficient) creates two dilemmas for a
school: it makes the black-white gap more salient (since the racial gap in
academic numbers is presumably greater than the racial gaps in factors
like state residence and leadership activities), and it decreases the
general role of other diversity factors. It thus makes it doubly hard for
a school to achieve racial diversity without giving a unique and very
large weight to race.
Figure 2.5: Admissions System Relying on Adding "Points" to Black
Applicants to Equalize Admissions by Race
[see org] [*399]
Figure 2.6: Admissions System Relying on Segregated Black and White
Admissions to Equalize Admissions by Race
[see org] Scenario Four: An admissions program that relies primarily on
academic index but evaluates each racial group separately, admitting
similar proportions from each racial pool of applicants. The simplest and
most predictable way to achieve racial diversity while maximizing the
academic strength of an enrolled class is to simply divide the admissions
pool into racial groups and admit the strongest applicants within each
group. A school following this method and relying substantially, but not
exclusively, on the academic index to determine admissions from each
racial group would end up with admissions curves like those illustrated in
Figure 2.6.
The reader may be struck that Figures 2.5 and 2.6 are identical. This
is no accident. If the point boost awarded in Scenario Three is roughly
equivalent to the average academic gap between white and black applicants,
then Scenarios Three and Four are functionally identical systems. This
point bears repeating: To an outside observer who can only examine the
results of an admissions system - who cannot look inside the minds of the
decisionmakers - there is no distinguishable difference between a system
that "race-norms" academic scores by adding points to every black
applicant and a system that simply segregates applicants within each
racial group from competition with the other groups. The exact numbers
admitted are likely to vary slightly under the two systems, but the
substantive effect - proportional representation - is the same.
How do either of these approaches compare with a racial quota of the
type prohibited under Bakke? They are a little bit different. A
predetermined quota creates a good deal of rigidity, especially in an
admissions system where large [*400] numbers of people are admitted with
no certain knowledge of which admittees will actually choose to enroll.
Setting a quota for an entering class of students probably necessitates
making some last-minute admissions, once the complexion of the class is
clearer; it also means that one cannot vary the representation of a
minority group from year to year according to the strength of each year's
applicant pool. But these logistical problems are probably not the main
reason for the Supreme Court's rulings against quotas. The Court seems
instead to focus on the idea that a quota overtly immunizes the minority
group from competition with the majority group; a quota suggests either
racially segregated admissions processes, or race-norming that puts each
racial group primarily in competition with other members of the same
group. n110 In this sense, the admissions dynamics captured in Scenarios
Three and Four capture the legal essence of a quota as well.
Unlike an explicit quota, the "racial tracks" and "racial points"
systems illustrated in Scenarios Three and Four do not produce exactly the
same number of minority admits each year. The actual number will vary a
little depending on the relative strength of admissions pools, the number
of applicants from each racial group, and yield patterns. Of course, there
is no practical reason why a school should care whether the number of
underrepresented minorities fluctuates a few points above or below an
average of, say, eighteen percent. Quotas are only useful when the party
seeking a certain number of minority spots does not trust the party
filling the spots - for example, in the context of a settlement agreement
between an employer and previously excluded minorities. In the context of
a law school, where faculty and deans set policy and admissions officers
implement it, quotas per se would hardly make sense even if they were
permissible.
Of course, Scenario Four (racially segregated admissions) is as
unconstitutional as Scenario Three (race-norming index scores) under the O
'Connor rules. Schools are not permitted to insulate minority applicants
from competition with other candidates. Because of the black-white
academic index gap, the only methods available to schools that want to
achieve something close to proportional admissions for blacks while
allowing a major role for academic factors seem equally barred by Grutter
and Gratz.
* * *
Let us now start to consider some real-world admissions systems,
beginning with what we know about the University of Michigan systems
litigated before the Supreme Court. The "points for race" approach of the
undergraduate system is, as we have said, captured by Scenario Three. But
what exactly does it look like when charted out? The college's system went
[*401] through several iterations during the 1990s. In 1999, according to
Justice O'Connor, the system awarded a maximum of 150 points; up to 110
could be awarded for academic performance. n111 Ten points were awarded
for Michigan residency, alumni children received four points, outstanding
essays could garner their authors three points, and special personal
achievements could earn up to five. Twenty points were assigned to blacks
and Hispanics. On the one-thousand-point scale of our admissions curve
figures, this would translate to a minority boost of something over one
hundred points. Graphically, the black and white admissions curves would
look like those in Figure 2.5.
The Gratz litigation disclosed admissions grids for undergraduate
admissions for several admissions years. The grids show the distribution
of applicants by categories of high school GPA and SAT scores, and also
show how many of the applicants in each box of the grid were admitted by
Michigan's undergraduate college. For several years, including 1999, the
university disclosed separate grids for "underrepresented minorities" and
other applicants, and also separated in-state and out-of-state applicants.
With the data in these grids, it is possible to compute index scores
for applicants, assigning each applicant the middle value for the grid she
is in and then plugging the assigned GPA and SAT scores into an index
formula similar to the one offered earlier. n112 Table 2.1 tabulates the
admissions rates for out-of-state applicants, comparing underrepresented
minorities (mostly blacks) with all other applicants (mostly whites).
[*402]
Table 2.1: Comparative Undergraduate Admission Cohorts at the University of
Michigan, Nonresidents Only, 1999
<WPTABLE>
Admission Rate for Nonminority Applicants Admission Rate for
Underrepresented-Minority Applicants
Index Proportion of Cohort Admitted Index Proportion of Cohort Admitted
870 and Above 99.5% 750 and Above 99.3%
810-869 91% 690-749 93%
750-809 52% 630-689 64%
690-749 23% 570-629 29%
610-689 19% Below 570 2.1%
570-609 10%
Under 570 2.6%
Source: Data disclosed by the University of Michigan Undergraduate
College in the course of the Gratz litigation, available at
http://www1.law.ucla.edu/<diff
> sander/Data%20and%20Procedures/SuppAnalysis.htm. I assigned each applicant to
the college an index based on a weighting of high school GPA and SAT I
scores. The weights are based on a logistic regression of actual
admissions decisions by the college, and give SAT I scores about 50% more
weight than high school GPA. </WPTABLE>
In this table, I compare the admissions rate for nonminority applicants
across various ranges, setting them alongside index ranges for minority
applicants that are, in the first four rows, 120 points lower. Inspection
of the table reveals several clear patterns. First, the academic index
plays a central role in admissions decisions. Nonminority applicants with
index scores of 870 or higher are virtually assured admission; those with
scores below 570 have almost no chance of success. Second, the admission
rates on the two sides of the table track one another closely. We would
expect this result, since the school is adding enough points to each
minority application to erase the 120-point gap in index scores. Third,
the minority and nonminority admissions rates converge upon one another at
the lower ranges. It would seem that the college applies some general
numerical cutoff for applicants of all races, so that minorities with
scores below 570 have no better chance than others of being admitted.
[*403]
Figure 2.7: Admissions Curves for Underrepresented Minorities and
Others for University of Michigan Undergraduate College, 1999
[see org]
Figure 2.8: Admissions Curves for Blacks and Whites at University of
Michigan Law School, 1999
[see org] [*404] We can perform a nearly identical analysis for the
University of Michigan Law School's admissions in the same year, 1999. In
the case of the law school, the grids are broken down by race (allowing us
to compare blacks and whites), but not for residents and nonresidents. I
analyzed data on all black applicants and all white applicants for
admission in 1999, and summarize the results in Table 2.2.
As a general matter, most readers should be struck by the general
similarity between Tables 2.1 and 2.2. In both cases, admissions are
heavily mediated by index score and by race. But closer inspection reveals
several important differences. Though blacks in both tables appear to
receive a large point boost to equalize their admissions chances with
whites, the point boost that equalizes admissions chances is somewhat
larger at the law school (140 points) than at the undergraduate college
(120 points). Academic factors are even more decisive at the law school
than at the college: a swing of one hundred points in the academic index
knocks law school applicants of either race from a category where over 90%
are admitted to one where 11% or fewer are admitted. And there is no
convergence between whites and blacks in the lower academic reaches at the
law school, as there is at the college; white law applicants with index
scores below 720 had virtually no chance of admission, even though 90% of
the black applicants in the 700-719 range received offers of admission.
Figures 2.7 and 2.8, illustrating the admissions curves at the two
schools, show both that the law school curves are steeper and that the
black and white lines for that school are more symmetrical.
In other words, the law school operated an admissions system that gave
greater weight to race, and less weight to nonindex factors, than the
college's, and applied the race weights with more uniform results. If one
accounts for the fact that the academic index here is based on approximate
"ranges," and not exact values for each individual, and for the lack of
data in our index on the quality or difficulty of each applicant's
undergraduate college (which doubtless factors into the law school's
assessment of each candidate's academic strength), then the law school's
reliance on purely academic considerations is even more dominant than
Table 2.2 implies. n113
[*405]
Table 2.2: Comparative Admission Cohorts at the University of Michigan Law
School, 1999
<WPTABLE>
Admissions Rate for White Applicants Admissions Rate for Black Applicants
Index Proportion of Cohort Admitted Index Proportion of Cohort Admitted
850 and Above 97% 710 and Above 96%
830-849 91% 690-709 90%
810-829 70% 670-689 72%
790-809 44% 650-669 38%
750-789 16% 610-649 22%
710-749 5% 570-609 11%
Under 710 2% Under 570 0%
Source: Data disclosed by the University of Michigan Law School in the
course of the Grutter litigation; available at
http://www1.law.ucla.edu/<diff
> sander/Data%20and%20Procedures/SuppAnalysis.htm. Cells of data based on
undergraduate GPA and LSAT scores have been converted to a 0-1000 index using
this formula: (LSAT - 120) * 10 + (UGPA * 100). </WPTABLE>
Considered in this light, it is difficult to see how Justice O'Connor
could have thought the law school's system passed constitutional muster,
or that blacks and whites were in any sense on the same "playing field" in
admissions, being judged by a myriad of personal characteristics of which
"race" was only one. Race is obviously given far more weight than all
other "diversity" factors together. Blacks in any index range are clearly
not competing against academically comparable whites. The law school's
admissions are functionally identical to either racially segregated
admissions or the type of race-norming followed by the undergraduate
college. In every respect we can quantify, the law school's admissions
process seems more violative of O'Connor's standards than the college's.
In trying to interpret the meaning of Grutter, then, we are left with two
possibilities: It may be that Justice O'Connor did not understand that the
law school and college admissions systems were functionally identical in
their treatment of race, due perhaps to weaknesses in the plaintiff's
presentation. Or it may be that Justice O'Connor cared only about form,
not substance. We should perhaps infer that racially segregated
admissions, or large, fixed numerical boosts awarded on the basis of race,
are fine so long as they are not specifically identified as such in the
admissions office's public pronouncements (or in sworn testimony before a
court).
* * *
Admissions curves and tables of admissions rates can provide significant
insight into the functional differences among admissions decisions, but
they [*406] are, at heart, rather ad hoc tools, unsatisfactory for
systematic comparisons. Is it possible to provide more formal and compact
yardsticks to assess the role of race in an admissions system? Yes, no
doubt it is, and I must plead limitations of space and capacity in not
providing as complete a solution as a good mathematician could surely
devise. What I present here are some initial steps toward a more thorough
analysis of a challenging problem.
Logistic regression is a tool that allows the researcher to assess the
reliability and power of some factors (independent variables) in
predicting outcomes, like admissions decisions, that can take on only two
"values" (in this case, "yes" or "no"). As we will see in Part V, logistic
regression is quite useful in evaluating when some hypothesized causal
factor does or does not matter to actual outcomes. Here I use it in a
different way: to gauge how much weight is given to particular sets of
factors in admissions decisions. We do not know all the contents of the
"black box" of law school admissions processes, but we can estimate the
importance of the unknown by weighing the importance of the known.
Thus, for example, we have no systematic information on how the
University of Michigan Law School evaluated such diversity factors as work
experience, leadership skills, letters of recommendation, hardships
overcome, or written essays. We simply know the numerical part of an
applicant's credentials and her race. Using logistic regression to
"predict" whether an applicant is admitted, we can estimate the proportion
of admissions outcomes that can be successfully predicted by knowing the
academic index and the race of applicants. n114 A measure called the
"Somers's D," produced in logistic regressions, provides this metric of
prediction.
Logistic regression analysis of the University of Michigan's
undergraduate admissions in 1999 shows that when one controls for each
applicant's academic credentials, residency status (in-state versus
out-of-state) and race ( "underrepresented" minorities versus others), the
Somers's D is .82. Knowing these facts about an applicant thus allows us
to reduce the guesswork involved in predicting an individual's admission
by eighty-two percent. In other words, these three facts about applicants
dominate the admissions process. The Somers's D behind the simulated
admissions curve shown in Figure 2.4, by contrast, is .35.A logistic
regression of the University of Michigan Law School's 1999 admissions,
using only an applicant's academic indices and her race (we do not have
data on residency) yields a Somers's D of .88. This is consistent with
what we can infer from the admissions curves - the law school appears to
rely even more heavily on academic factors (and thus less on "diversity"
factors) than does the college. Moreover, recall that our estimates of the
academic credentials of Michigan applicants are based on ranges, not
actual numbers, and that we do not have information on the quality of each
applicant's undergraduate college - certainly a factor in the law school's
admissions. With [*407] more complete information, academic factors and
race would produce a Somers's D even closer to 1. The scope permitted by
this regime for "individualized assessment" is slight indeed.
One can gain insight into how a school treats race in the admissions
process with two additional statistics. One of these is the simple
admissions rate for blacks and whites. If the rates are very similar,
despite the large black-white credentials gap, this is evidence that a
school is engaged in race-norming credentials, segregating admissions, or
using some other method that makes the racial gap irrelevant. The second
tool is to conduct separate logistic regressions for black and white
admissions. If a school claims that substantial black admissions result
from the strength of black applicants in their "diversity" credentials
(socioeconomic background, community service, etc.), then it should be
much harder to predict black admissions based on academic factors than
would be the case for white admissions. n115 If, on the other hand, blacks
are not competing directly with whites for admission, and schools are
effectively race-norming black credentials, then we would expect to see a
similarly heavy reliance on academic numbers for blacks and whites.
The undergraduate college at the University of Michigan admitted 82% of
the underrepresented minorities for whom we have admissions data, compared
to 70% of other applicants. A logistic regression of admissions decisions
for majority applicants, based on the academic and residency factors noted
earlier, yields a Somers's D of .81. A parallel regression for
underrepresented minority applicants yields a Somers's D of .85. Both of
these tests thus reinforce what the university concedes - that it added
points to minority applications to offset disparities in academic
credentials. At the law school, admission rates for whites and blacks are
nearly identical (43% and 39%, respectively), and separate logistic
regressions for each race produce even more extreme Somers's D measures:
.88 for whites, and .90 for blacks. Once again, the law school's
admissions look more mechanical and less driven by nonracial diversity
factors than the college's admissions.
Within the law school world, how typical are racially segregated
admissions? One cannot learn about this, of course, by a formal poll of
schools. As we saw in Part I, many schools were relatively candid about
affirmative action in the 1970s, but after Bakke discussions largely went
underground. Informally, when admissions officers gather at conferences
and chat about what they do, the picture is much clearer. When Boalt was
cited by the Justice Department in 1992 for running formal, racially
segregated admissions tracks, the common view I heard expressed was not
shock at Boalt's practices, but contempt for the school 's stupidity in
doing it so brazenly. In the mid-1990s, over a small lunch I attended with
the dean of an elite law school (not [*408] Michigan) and the school's
chief admissions officer, the discussion worked around to Bakke. The dean
turned to the admissions chief and casually observed that the numbers of
blacks admitted in recent years had been too nearly identical from year to
year. For appearances' sake, the dean went on, it would be best to vary
the numbers a bit more.
As I noted in Part I, the UCLA School of Law, my home institution,
established an elaborately justified "diversity" program in 1978-1979 to
conform with Bakke. Internally, however, admissions operated on de facto
separate racial tracks until the university and the state adopted formal
bans on any kind of racial preferences beginning in the 1997 admissions
year. The school's 1979-1997 system divided applicants into five racial
groups - whites, Asians, Hispanics, blacks, and American Indians - and
considered each group largely in isolation from the others. Admissions
within each pool were driven overwhelmingly by the academic index (a
combination of LSAT score, undergraduate grades, and strength of
undergraduate institution), thus admitting the numerically strongest
candidates within each racial pool. In one concession to "soft factors,"
the school allowed student committees (for years in the 1980s and early
1990s, the committees were separated by race) to comment upon and even
interview minority applicants. The many other elements described in the
school's "diversity" policy - nonracial factors such as socioeconomic
disadvantage, disabilities, interesting work experiences, or advanced
degrees in other fields - could be fed into the mix. But nonracial
"diversity" admissions rarely accounted for more than four or five percent
of all admissions. The admissions curves at the UCLA School of Law thus
looked just like those at the University of Michigan School of Law, except
steeper. n116
While conducting research for this Article, my research associate and I
submitted Freedom of Information Act (FOIA) requests to thirteen public
law schools across the United States. We chose all of the elite public law
schools and a random sample of other schools. In all, we collected data on
twelve admissions cycles over 2002 and 2003 from seven law schools.
Table 2.3 summarizes data on the average admissions patterns of these
schools, using the numerical techniques I applied to Michigan's
undergraduate college and law school admissions. By the three measures I
have suggested, all of these schools appear to follow much the same
pattern as both Michigan schools. Blacks and whites are admitted at almost
exactly the same rates, [*409] academic factors (and, in some cases,
residency) drive nearly all admissions decisions, and academic factors are
as predominant in black admissions as they are in white admissions. n117
Table 2.3: Statistics Concerning Typical Admissions Patterns at Various
Higher Education Institutions
<WPTABLE>
Institution and Year of Analysis Somers's D in Logistic Admissions Model
Percentage of Applicants Admitted
All Whites Blacks Whites Blacks
University of Michigan, Undergraduate College, 1999-2000* .81 .81 .85
70% 82%
University of Michigan, Law School, 1999-2000 .88 .88 .90 43% 39%
Seven U.S. Public Law Schools, 2002-2004** .88 .88 .88 23.6% 24.3%
Source: Data disclosed by the University of Michigan Law School and
Undergraduate College in the course of the Grutter and Gratz litigation,
respectively, available at http://www1.law.ucla.edu/<diff
> sander/Data%20and%20Procedures/SuppAnalysis.htm; data disclosed by
> public law
schools in response to FOIA requests from the author (on file with
author). *For the college, the racial comparisons are between
"underrepresented minorities" (mostly blacks and Hispanics) and everyone
else. **Somers's D values are medians for the twelve admissions cycles
at the seven schools. </WPTABLE>
I have thus far been unable to find a single law school in the United
States whose admissions process operates in the way Justice O'Connor
describes in Grutter. The academic index for applicants - however it might
be constructed by individual schools - is always the dominant factor in
admissions within each racial group; other "soft" factors play a prominent
role only for those relatively few cases that are on the academic score
boundary between "admit" and [*410] "reject." n118 And the gap between the
black and white curves is quite large, ranging from 100 to 160 index
points and averaging about 125 points. The steepness of the curves for
both blacks and whites negates the possibility that there is some
nonacademic, nonracial factor that is offsetting the black-white score
gap. The only logical possibilities are that schools "race-track"
admissions or add large boosts to black applications to erase the academic
gap.
Note that when I say "all" of the law schools I examined had
substantially disparate racial tracks to admission, I include several law
schools outside the highest ranks. The system of racial preferences is not
confined to elite schools. It is a characteristic of legal education as a
whole. To the pattern behind this phenomenon we now turn.
III.
The Cascade Effect of Racial Preferences
The conventional wisdom about university-based affirmative action holds
that it is largely confined to the most elite schools. William Bowen and
Derek Bok observed that "nationally, the vast majority of undergraduate
institutions accept all qualified candidates," estimating that only twenty
to thirty percent of four-year colleges and universities are able to "pick
and choose" among their applicants. n119 Justice Thomas seems to agree
with this assessment. In his [*411] dissenting opinion in Grutter, Thomas
argued that a diverse student body does not constitute a compelling state
interest justifying racial classifications because it could be achieved
without recourse to race. Specifically, he suggested that "with the
adoption of different admissions methods, such as accepting all students
who meet minimum qualifications, the Law School could achieve its vision
of the racially aesthetic student body without the use of racial
discrimination." n120 He went on to suggest that Michigan's reluctance to
lower its admissions standards indicates that it cares more about its
status as an "elite" law school than it does about the ethnic diversity of
its student body. Many commentators have offered similar arguments.
The widespread assumption that racial preferences exist only at elite
schools is based on faulty logic and poor empiricism. The logical argument
runs something like this: The black-white gap in test scores and grades
produces a shortage of blacks at the top of the distribution, so the most
elite institutions must use racial preferences to recruit an adequate
number of blacks. In the middle of the distribution, in contrast, there
are plenty of blacks to go around. The logical misstep is not realizing
that if enough midrange blacks are snapped up by elite schools, the
midrange schools will face their own shortage of blacks admissible through
race-blind criteria. The lack of good empiricism on this issue results
from the tendency of researchers, public intellectuals, and the media to
focus on the glamorous schools, and to give only passing attention to
those in the trenches.
In fact, the evidence within the law school world shows conclusively
that a very large majority of American law schools not only engage in
affirmative action, but engage in the types of segregated
admissions/racial boosting that I illustrated in Part II. I will also
argue that the dynamics of affirmative action in law schools make these
practices largely unavoidable. In other words, few American law schools
feel that they have any meaningful choice but to engage in covert
practices that, if made explicit, would probably not survive judicial
scrutiny.
* * *
American higher education relies heavily on quantifiable indicators of
academic achievement, and probably nowhere in higher education is this
reliance more complete and obvious than in law school. n121 There are both
good [*412] and bad reasons for this. The principal good reason is that
academic indices based on the LSAT and undergraduate grades can be shown
to be far more effective in predicting law school performance (and, for
that matter, success on bar examinations) than any other factor that has
been systematically tested. n122 The bad side of the focus on numbers is
the law school ranking system. Legal academics rank their schools in some
of the ways taken for granted in other fields - faculty publication
records, peer citations, and so on - but rankings in the law school world
have gradually come to be dominated by the annual lists generated by U.S.
News and World Report. U.S. News relies on a variety of quantifiable and
subjective sources, but the median LSAT scores of a school's students
figure prominently in both the calculation of the ranking and the
published reports on schools. n123
As Russell Korobkin and others have pointed out, legal education in the
United States has taken on some of the character of a large-scale
signaling and sorting game. n124 High-prestige schools attract stronger
students, and elite employers recruit from these schools in the hope of
hiring the best students. It is often said that the main function law
schools perform is not educating law students, but giving them a brand
name, and big-firm employers - who send recruiters to elite schools and do
most of their screening of law students when the students are less than
halfway through law school - act in ways that confirm this impression.
n125 I will argue in Part VI that employers value law school performance
at least as much as they value law school prestige, but I have no doubt
that most law school faculty and law students believe prestige is the
be-and end-all. Prospective students therefore tend to strive to attend
the most elite school (measured by the U.S. News rankings) they can get
admitted to, and law school deans strive to maximize the median LSAT of
their students to increase [*413] their eliteness. A dean who can lift her
school's median LSAT a couple of points can not only impress alumni, but
may be able to attract still stronger students to the school. n126
The rankings game may have led schools to place more emphasis on
numbers than they had in the past - in particular, to give more weight to
LSAT scores. It has certainly led students to place more emphasis on
school ranking. Students seem to attach importance even to trivial
differences in prestige (e.g., Stanford versus NYU, or Ohio State versus
Tulane), and will almost always uproot themselves to enroll in the highest
tier that will have them. n127 The law school admissions market is
therefore national, especially at its higher reaches, so much so that
elite state schools matriculate most of their student bodies from out of
state. When law schools extend admissions offers, applicants with higher
numbers tend to turn the offer down (since their numbers got them into
another, still higher-ranked school, which they decide to attend) and
applicants with lower numbers tend to accept (since they probably do not
have offers from more or equally attractive alternatives). n128
Now, suppose we add affirmative action into the mix. Suppose that an
elite school such as Yale wants to admit an academically strong class, but
also wants to enroll a significant number of black students (Yale's
student body is regularly around 8% to 9% black n129). Even at the top of
the distribution of undergraduate performance and LSAT scores, there is a
significant black-white gap. The blacks that Yale admits, on our
1000-point index scale, will tend to have indices of perhaps about 750,
while the white admits will tend to have [*414] indices of perhaps about
875. Cornell Law School would be happy to have almost any of the students
Yale admits (and does admit them when they apply), but a large majority of
these students will choose to attend Yale (or one of the other top ten
schools), and Cornell will thus have to admit students with lower numbers
to fill its class. For whites, Cornell will admit down into the ranks of
the low 800s; for blacks, it will admit down into the high 600s. The
enrolled classes at Cornell and Yale will show remarkably little overlap
in index numbers - within racial groups. n130 Cardozo School of Law will
face the same challenges vis-a-vis Cornell that Cornell faces vis-a-vis
Yale, and Syracuse University College of Law will be to Cardozo as Cardozo
is to Cornell.
If the number of blacks admitted to the higher tiers of law schools was
substantially smaller than blacks' proportionate number in the applicant
pool, then the black-white gap in credentials would narrow as one moved
further down the hierarchy of schools. But in fact blacks made up 7.1% of
the enrolled first-year classes at the top thirty law schools in 2002 - a
percentage that has been quite stable for over a decade. n131 The
proportion of blacks in all ABA-approved first-year law school classes in
2001 was 7.7% n132 - also a quite stable figure. As a result, the academic
index gap between whites and blacks should, as a matter of logic, tend to
remain about the same as one moves down the hierarchy of law schools.
* * *
The admissions data from the handful of law schools examined in Part II
tended to confirm this pattern of a nearly constant black-white index gap
at different points along the admissions chain. But it would be nice to
have some more systematic information. Fortunately, such a source exists.
From 1991 through 1997, the LSAC gathered systematic data on one national
cohort of law students for its Bar Passage Study (LSAC-BPS). n133 The
study is remarkable [*415] because the LSAC secured the cooperation of
about ninety-five percent of the nation's accredited law schools and most
of the state bar examiners. n134 The LSAC was thus able to track some
twenty-seven thousand law students from their entry into law school in the
fall of 1991 through their eventual success (or failure) in passing the
bar two or three years after graduation. The LSAC-BPS collected a wide
array of information about the study participants: responses to several
questionnaires, data on law school performance, bar passage, and - of
immediate relevance here - data on race, LSAT score, and undergraduate
GPA. The disadvantage of the LSAC-BPS data is that it is somewhat
disguised to prevent researchers from identifying individual institutions.
We can only examine schools within "clusters" that correspond roughly to
tiers of law school prestige. n135
For each person in the LSAC-BPS data set, I assigned an "admissions
index" value using the method outlined in Part II. The index is a linear
combination of LSAT (weighted 60%) and undergraduate GPA (weighted 40%)
that scales all students on a range from one to one thousand. Table 3.1
presents data on all the students who enrolled at Tier 1 schools (which
appear to include the most elite schools in the nation), separated by
race.
Table 3.1: Black-White Academic Indices at Tier 1 Institutions, 1991
Matriculants
<WPTABLE>
Student Race Number of Enrolled First-Year Students in Sample Mean
Academic Index Median Academic Index Standard Deviation
Black 147 709 705 90
White 1843 864 875 74
Source: LSAC-BPS Data, supra note 133. </WPTABLE>
The racial gap in the mean academic index is 155 points; the gap in the
median index is 170 points. The standard deviation of the index is
comparatively small - strikingly small, considering that the schools in
this [*416] group are spread across the top twenty in rank, ranging
perhaps from Yale to Vanderbilt. This means that nearly all of the whites
admitted to any of the Tier 1 schools come from a fairly narrow
credentials band. Collectively, only about three percent of the whites at
these schools have academic indices as low as the median black
matriculant.
Table 3.2 summarizes similar data for the full range of law schools
that participated in the LSAC-BPS. It is hard to conclude from this data
that the racial gap, or affirmative action, disappears at lower-tier
schools. Except for the seven law schools that have historically served
minorities - obviously a special case - the black-white gap is nearly
constant.
Table 3.2: Black-White Academic Index Gap in Six Groups of American Law
Schools, 1991 Matriculants
<WPTABLE>
Law School Group Median Academic Index Black-White Gap Standard Deviation
in Index for Whites
Blacks Whites
Group 1: Very Elite Schools (n = 14) 705 875 170 74
Group 2: Other "National" Schools (n = 16) 631 805 174 89
Group 3: Midrange Public Schools (n = 50) 586 788 202 75
Group 4: Midrange Private Schools (n = 50) 560 725 165 75
Group 5: Low-Range Private Law Schools (n = 18) 493 665 172 73
Group 6: Historically "Minority" Schools (n = 7) 516 641 125 103
Source: LSAC-BPS Data, supra note 133. </WPTABLE>
Affirmative action thus has a cascading effect through American legal
education. n136 The use of large boosts for black applicants at the top
law schools [*417] means that the highest-scoring blacks are almost
entirely absorbed by the highest tier. Schools in the next tier have no
choice but to either enroll very few blacks or use racial boosts or
segregated admissions tracks to the same degree as the top-tier schools.
The same pattern continues all the way down the hierarchy.
Because of the cascade effect, the only schools that truly benefit from
the preferential policies are those at the top - perhaps the top forty law
schools. In a race-blind system, the numbers of blacks enrolling in the
top twenty schools would be quite small, but the numbers would be
appreciable once one reached schools ranked twentieth to thirtieth, and
blacks would steadily converge toward a proportional presence as one moved
down the hierarchy of schools. n137 At the bulk of law schools, the very
large preferences granted to blacks only exist in order to offset the
effects of preferences used by higher-ranked schools. n138
So what of Justice Thomas's contention that a school can achieve racial
diversity simply by lowering admissions standards for whites? In the
current regime, this strategy simply would not work. Consider the
University of Michigan Law School, where, as we saw in Part II, the school
in 1995 admitted most whites with academic indices over 830, and almost no
whites with academic indices below 750; for blacks, presumptive acceptance
required an index score of 690 and few were admitted with scores below
610. If Michigan started applying its "black" thresholds to all
applicants, it would initially be flooded with students. Based on 1995
acceptance patterns, the first class admitted under the relaxed and
race-blind standard would grow from 350 students to about 1500. Black
enrollment would stay a little above 20 students, n139 so the percentage
of black students in the first year would fall from 7% to 1.4%. The school
might introduce a lottery to control class size, but if it were race-blind
the black presence would still be only 1.4%. And after the first year of
the experiment, dynamics would change quickly. Michigan would no longer be
seen, by employers and students (and to a lesser extent by other law
schools' faculties), as a law school of the highest academic standards.
Its brand name would steadily fall in the rankings into a range occupied
by other strong, [*418] but not "elite," midwestern law schools, such as
Ohio State or the University of Illinois. And its black students -
previously among the strongest in the nation - would mostly migrate to
other elite institutions still aggressively pursuing affirmative action,
such as Cornell, Northwestern, or the University of Virginia. To maintain
its former black presence, the now-third-tier Michigan would have to
reinstitute racial boosts or segregated admissions - but now at a
significantly lower part of the academic spectrum.
It is important to understand that a nearly identical dynamic process
would follow the decision of any but the lowest-tier American law schools
to become "race-blind" in admissions. If the school treated all students
according to its existing "white" standards, it would lose almost all of
its black students because blacks admitted under these standards would
have far more attractive offers from higher-ranked schools. If the school
treated all students according to its existing "black" standards, it would
fall in the rankings and, again, eventually lose its black students to
higher-ranked schools. n140
In this sense, affirmative action in American law schools is not so
much a set of policies adopted by individual schools, but instead a system
in which the freedom of action of any single school is largely
circumscribed by the behavior of all the others. Nearly any school that
switched to truly race-neutral practices would find its number of enrolled
blacks rapidly dropping toward zero. n141 And any school that did so
voluntarily would not only appear to be racist - how could this school be
segregated when every other law school has something approaching
proportional representation? - but would also find itself under intense
pressure from all of its constituency groups to enroll more blacks and
Hispanics.
IV. An Aside on the Value of Academic Indices
Parts II and III effectively demonstrated, I hope, three basic points:
(a) law school admissions offices rely primarily on academic indices in
selecting their students; (b) because the number of blacks with high
indices is small, elite law schools achieve something close to
proportional representation either by maintaining separate black and white
admissions tracks or by giving black applicants large numerical boosts;
and (c) the use of these preferences by elite schools gives nearly all
other law schools little choice but to follow suit. The result is a game
of musical chairs where blacks are consistently bumped up [*419] several
seats in the law school hierarchy, producing a large black-white gap in
the academic credentials of students at nearly all law schools.
Defenders of affirmative action say that the credentials gap has little
substantive significance. They are supported by an eclectic band of
critics who have attacked the reliance on academic numbers in general, and
standardized tests in particular, as misguided and unfair. Let us consider
several of their principal criticisms.
Predictive indices (like the LSAT/UGPA index I have used in Parts II
and III) don't predict very well. The correlation (usually denoted by "r")
of such indices with first-year law school grades at individual schools
ranges from about .25 to .50. The square of the correlation coefficient
(the "r[su'2']") describes how much of the variation in the outcome
variable (in this case first-year grades) is explained by the measurement
variable (in this case the academic index). Since the squares of 0.25 and
0.50 are, respectively, 0.0625 and 0.25, one can argue that these
predictive indices are only explaining 6% to 25% of the individual
variation in law school performance. If that's as good as the indices are
at predicting first-year grades, presumably they are even less able to
predict more distant events - third-year grades, bar exam results, or
future careers. Why should we take so seriously numbers that provide such
crude guides to future outcomes? These arguments can be called the
"usefulness" critique.
American standardized tests are unfair to non-Anglos in general and
blacks in particular. It is intrinsically unreasonable to weigh a test
taken in a few hours as much as or more than four years of college work.
The exams are biased because they largely test knowledge of
culture-specific vocabularies. n142 The widespread perception that blacks
perform badly on such tests has produced a "stereotype threat" among
blacks that further hinders performance. n143 Affluent whites, meanwhile,
enroll in expensive coaching [*420] classes to maximize their scores. n144
Actual scores are highly correlated with socioeconomic status. n145 The
tests simply perpetuate privilege and are illegitimate. These arguments
can be called the "fairness" critique.
The battlefield staked out by these two critiques is bloody and
littered with corpses. For the most part, my approach in this Article is
to sidestep the field by presenting new, real, and systematic data on the
actual consequences of affirmative action (and impatient readers can move
directly to Part V to start digesting the data). n146 If we actually know
black-white differences in law school grades, retention rates, and bar
passage, theoretical arguments about predictive indices become in some
sense moot. However, since many of the arguments just outlined are so
widely believed, are so often repeated, and have gained so much apparent
legitimacy in recent years, I offer a few comments here on the main points
of dispute.
The usefulness critique. The so-called validation studies that assess
the power of academic indices to predict first-year law school grades are
intrinsically invalid when used for that purpose. n147 Since the students
at any given school are chosen largely on the basis of the academic
indices themselves, they represent a seriously skewed sample. Their scores
are, as we have seen, fairly compressed (creating the "restriction of
range" problem) and, to the extent that nonindex factors are used in
admissions, persons with lower academic scores often have offsetting
strengths. When a correction is made for these problems, grade
correlations with academic indices tend to go up about 20 points, to a
range of .45 to .65. n148
Another way to avoid the weaknesses of conventional validation studies
is to use academic indices to predict performance on bar exams. Bar exams
are taken by a broad cross-section of law graduates of many different
schools, which greatly reduces the restriction-of-range and
biased-selection problems. Little research has been done because bar
authorities tend to jealously guard exam data. However, some recent
validation studies have succeeded in [*421] matching undergraduate grades
and LSAT scores with raw scores on the California bar exam. The studies
find the predictive power of the LSAT is quite good. LSAT scores have a
.61 correlation with multistate exam scores (even though the tests are
usually taken four years apart), and a correlation of .59 with overall
exam results (including the eight-hour essay exam and eight-hour practice
exam). n149 Adding undergraduate grades to the predictor produces a
further, modest increase in correlations. The R[su'2'] of these academic
indices with bar results is, therefore, well over 35%. n150
Explaining 35% of individual variance may sound mediocre, but I find it
impressive for a number of reasons. No other predictor tested for
admissions purposes (e.g., interviews) has been able to explain more than
5% of individual variance in school performance. n151 In research I
conducted in 1995 with Kris Knaplund and Kit Winter (and the aid of many
law schools around the country), thousands of first-year law students
completed questionnaires on their school experiences and their schools
provided data on their first-semester grades and predictive indices. n152
Although we did not set out to study predictors of academic performance, I
was nonetheless struck that the simple LSAT/UGPA index was several times
stronger at predicting first-semester [*422] grades than direct
information on how much students said they were studying, participating in
class, completing the reading, or attending study groups. n153
Correlations based on individual behavior almost always sound
unimpressive, largely because individuals are extremely complex and their
behavior is shaped by a literal multitude of factors. Even though we know
cigarette smoking causes cancer and takes years off the average smoker's
life, the individual-level correlation between smoking and longevity is
only about .2 (generating an r[su'2 '] of 4%). n154 Even though we know
that the opportunities we have in life are heavily shaped by the
environment in which we grow up (and by our genes), the correlation
between the incomes of adult brothers is also only about .2. n155
In such cases, the modest strength of the individual correlation belies
what is, when applied to large numbers, a powerful and highly predictive
association. The fate of individual cigarette smokers is hard to predict,
but the comparative fates of large numbers of smokers and nonsmokers can
be foreseen with great accuracy. In the same sense, the individual-level
correlation of an academic index with first-year grades at a law school
may be only .41; but if we make predictions about groups of twenty
students based on academic indices, the correlation between predictions
and actual performance jumps to .88. If we make predictions about groups
of one hundred students, the correlation is .96. n156
Just as the predictive power of a correlation increases when it is
applied to larger groups, so it increases when it is applied to larger
disparities. Predicting outcomes for persons in the middle of a
distribution (where people are usually most thickly clustered) is hard;
outcomes at the high and low ends follow more regular patterns. For
example, consider blacks who took bar exams in the "Far West" region who
were captured by the LSAC-BPS during the mid-1990s. n157 [*423] For those
whose pre-law school academic index was 720 or higher (out of 1000), the
first-time bar passage rate was 97%. For those whose academic index was
540 or lower, the first-time bar passage rate was 8%. n158
When a law school admits a class, it is making judgments about large
numbers of people - how to select a few hundred students from several
thousand applicants. Even though the success of any individual applicant
is largely guesswork, the average success of groups of applicants with
similar academic credentials is highly predictable. This is why it is
legitimate - indeed, essential - for schools to pay attention to academic
numbers. n159
The fairness critique. There are a number of small answers to arguments
that academic indices are unfair to blacks. The available evidence
suggests that most students do not take test-preparation courses, blacks
are more likely than whites to enroll in such courses, and the courses
have very modest effects on performance. n160 Under the most generous
assumptions, test cramming could not explain more than one or two percent
of the black-white credentials gap. n161 Testing agencies have made
substantial efforts to make the verbal and reading portions of their tests
more culturally inclusive; but in any case, the racial gaps on
mathematical and analytical portions of standardized tests are as large as
[*424] those on verbal portions. "Stereotype threat" does appear to exist,
but it is hard to pin down how much of the black-white gap proponents
believe it explains.
There is a more fundamental problem with the fairness critique. If it
were true that academic indices generally understated the potential of
black applicants, then admitted black students would tend to outperform
their academic numbers. But this is not the case. A number of careful
studies, stretching back into the 1970s, have demonstrated that average
black performance in the first year of law school does not exceed levels
predicted by academic indicators. n162 If anything, blacks tend to
underperform in law school relative to their numbers, a trend that holds
true for other graduate programs and undergraduate colleges. n163
One might respond that law school exams and bar exams simply perpetuate
the unfairness of tests like the LSAT - they are all timed and undoubtedly
generate acute performance anxiety. But almost all first-year students
take legal writing classes, which are graded on the basis of lengthy memos
prepared over many weeks, and which give students an opportunity to
demonstrate skills entirely outside the range of typical law school exams.
My analyses of first-semester grade data from several law schools shows a
slightly larger black-white gap in legal writing classes than in overall
first-semester grade averages. n164
[*425] None of this is to deny the value of exploring alternative
methods of identifying talent for law school, nor to deny the importance
of increasing the class diversity of our meritocracy. n165 The point I
suggest here is that academic indices currently used by law school
admissions officers are not biased and are far from meaningless. The
black-white credentials gap is real. Therefore, admitting law students
whose academic credentials vary dramatically by race is likely to have
dramatic effects in law school.
V. Effects of Affirmative Action on Academic Performance in Law School
In many discourses, the point of affirmative action is to give someone
the chance to prove herself. Individuals who receive preferences, it is
said, are being given the opportunity to get a better education than they
would receive under a race-blind system. n166 Since many of the
beneficiaries of affirmative action suffered from low-quality, underfunded
schooling in the past, the second chance provided by affirmative action is
an opportunity to blossom.
Such is the argument, and it is far from implausible. n167 In the
preceding Parts, I have pointed out that blacks benefiting from
affirmative action receive much larger preferences than are generally
acknowledged, and that the academic indices used to sort candidates for
admission are both strong and unbiased predictors of law school
performance. Nonetheless, one could reasonably argue that those blacks who
have received the fewest opportunities in the past might outperform their
credentials.
One could conversely argue, with equal plausibility, that with such
large credentials gaps at the outset of law school, it will be
particularly difficult for [*426] blacks to stay afloat. The question of
how affirmative action beneficiaries actually perform in law school is,
therefore, of great practical and conceptual interest. Remarkably, I have
been unable to find any study published in the past thirty years that has
tried to systematically document an answer. Even researchers who have had
access to systematic data have avoided publishing it, or, worse, have
given misleading accounts of what the data shows.
* * *
The LSAC-BPS data, which I discussed in Part III, n168 provides a
uniquely comprehensive resource for examining law school performance. The
163 schools that participated in the study provided grade data for over
twenty-seven thousand 1991 matriculants. n169 Although the data does not
identify individual schools, the LSAC converted each student's first-year
GPA and graduation GPA into a number standardized for each school, in
which the mean GPA at the school has a value of zero and other grades are
measured by the number of standard deviations they lie above or below the
mean. It is a simple matter, then, to compute any student's class
standing.
Table 5.1 below shows the distribution of first-year grades among black
and white students at the "Tier 1" schools in the LSAC-BPS. Students are
broken down into "deciles," each representing one-tenth of all first-year
students at each school. The data shows that blacks are heavily
concentrated at the bottom of the grade distribution: 52% of all blacks,
compared to 6% of all whites, are in the bottom decile. Put somewhat
differently, this means that the median black student got the same
first-year grades as the fifth-or sixth-percentile white student. Only 8%
of the black students placed in the top half of their classes.
[*427]
Table 5.1: Distribution of First-Year GPAs at "Elite" Schools, Spring
1992, by Race
<WPTABLE> Class Decile Proportion of Students in Each Group Whose
First-Year GPAs Place Them in Each Decile n170 Black White All
Others 1st (Lowest) 51.6% 5.6% 14.8% 2d 19.8% 7.2% 20.0%
3d 11.1% 9.2% 13.4% 4th 4.0% 10.2% 11.5%
5th 5.6% 10.6% 8.9% 6th 1.6% 11.0% 8.2%
7th 1.6% 11.5% 6.2% 8th 2.4% 11.2% 6.9%
9th 0.8% 11.8% 4.9% 10th (Highest) 1.6% 11.7% 5.2% Students in
Sample 126 1525 305 Source: LSAC-BPS Data, supra note 133.
</WPTABLE>
Based on the regression illustrated in Table 5.2 below, low black
performance is not a result of test anxiety (the gap is similar or greater
in legal writing classes) or some special difficulty blacks in general
have with law school. It is a simple and direct consequence of the
disparity in entering credentials between blacks and whites at elite
schools. If we try to predict grades at law schools based on the entering
credentials of students, we get the regression results summarized in Table
5.2.
[*428]
Table 5.2: Predicted Coefficients of Independent Variables Predicting
First-Year Law School Grades at a Cross-Section of Law Schools n171
<WPTABLE>
Independent Variable Standardized Coefficient t-Statistic p-Value
ZLSAT 0.38 25.98 < .0001
ZUGPA 0.21 14.92 < .0001
Asian -0.007 -0.52 .61
Black -0.007 -0.48 .63
Hispanic -0.011 -0.79 .43
Other Race -0.021 -1.49 .14
Male 0.018 1.29 .20
n for Model: 4258
Adjusted R[su'2'] for Model: .19
Source: 1995 National Survey Data, supra note 152. The regression includes
all schools in the database that provided complete LSAT and UPGA data on
participating students. n172 </WPTABLE>
This is the first of several sets of regression results the reader will
encounter in this Article, so a few explanatory comments are in order.
n173 "Standardized coefficients" tell us how much a change in an
independent variable influences the dependent variable. In the table, the
0.38 coefficient for ZLSAT means that if two students are comparable in
all other respects but their LSAT score, the student with the higher score
will tend to have first-year grades that are 0.38 standard deviations
higher for each standard deviation advantage in the LSAT score (one
standard deviation on the LSAT is about ten points). The "t-statistic"
tells us how consistent or reliable a relationship is, with a higher
t-statistic indicating a stronger, more reliable association. T-statistics
generally increase as a function of the standardized coefficient and the
[*429] size of the sample. T-statistics above 2.0 are usually taken to
signify that the independent variable is genuinely helpful in predicting
the dependent variable. A t-statistic of less than 2.0 indicates a weak,
inconsistent relationship - one that might well be due to random
fluctuations in the data. The "p-value" contains the same information as
the t-statistic, but it has a more intuitive, accessible meaning. A
p-value of .05 (which corresponds to a t-statistic of 1.96) means,
literally, that if one had millions of data points but did regressions
with small subsamples of observations, one would get a coefficient as
large or larger than the one shown about five percent of the time even if
there were, in fact, no systematic relationship between the dependent and
independent variables.
As we saw in Part III, the main criteria used by most law schools are
LSAT scores, undergraduate GPA (often adjusted for school difficulty), and
the race of applicants. The regression in Table 5.2, which includes these
various admissions factors, tells us three things. First, LSAT and UGPA
are strongly associated with first-year grades (even though, for the
reasons discussed in Part IV, the R[su'2'] for a model like this is low).
Second, when we control for the LSAT and UGPA variables, none of the
"race" variables (or the gender variable) is even close to being
statistically significant (all the p-values are well above .05). This
means that when we control for academic credentials, blacks, whites,
Hispanics, and Asians all get pretty much the same grades. n174
In other words, the collectively poor performance of black students at
elite schools does not seem to be due to their being "black" (or any other
individual characteristic, like weaker educational background, that might
be correlated with race). The poor performance seems to be simply a
function of disparate entering credentials, which in turn is primarily a
function of the law schools' use of heavy racial preferences. It is only a
slight oversimplification to say that the performance gap in Table 5.1 is
a by-product of affirmative action. n175
[*430]
* * *
Since, as we have seen, large racial preferences at the top of the law
school hierarchy reproduce themselves at the vast majority of other law
schools, we would expect to see similar patterns of black performance
across most of the spectrum of legal education. Table 5.3 confirms that
this is so. In the second, third, fourth, and fifth groups of law schools
identified in the LSAC-BPS data, blacks are heavily concentrated at the
bottom of the grade distribution. n176 Generally, around fifty percent of
black students are in the bottom tenth of the class, and around two-thirds
of black students are in the bottom fifth. Group 3, with the largest
credentials gap, also has the worst aggregate performance among blacks.
Only in Group 6, made up of the seven historically minority law schools,
is the credentials gap, and the performance gap, much smaller.
[*431]
Table 5.3: First-Year Grade Performance of Black Students
<WPTABLE>
Decile Proportion of Black Students in Each Decile Within Each Group of
Schools
Group 2: Other "National" Schools Group 3: Midrange Public Schools Group
4: Midrange Private Schools Group 5: Lower-Range Private Schools Group 6:
Historically Minority Schools
1st 44.8% 49.9% 46.3% 51.6% 14.0%
2d 22.1% 19.0% 18.9% 12.6% 12.1%
3d 11.4% 9.3% 11.3% 9.5% 12.8%
4th 4.0% 8.1% 9.2% 8.4% 10.5%
5th 7.8% 5.1% 5.7% 4.2% 12.4%
6th 3.7% 3.6% 2.1% 3.2% 8.2%
7th 1.1% 2.2% 2.6% 2.1% 10.1%
8th 2.6% 1.4% 1.9% 3.2% 6.9%
9th 1.5% 1.0% 1.2% 2.1% 7.5%
10th 1.1% 0.4% 0.7% 3.2% 5.6%
Corresponding White Percentile of Median
Black Student 7th 5th 8th 7th 24th
Black-White Index Gap
(from Table 3.2) 174 202 165 172 125
Black Students in Sample 272 505 423 95 306
Source: LSAC-BPS Data, supra note 133. n177 </WPTABLE>
These distributions give us a more vivid idea of what the debate over
predictive indices means in real terms. If we imagined the distribution of
predictive indices among black and white students enrolling at a
particular school, we would see two largely separate and only slightly
overlapping humps (see Figure 5.1). If we look at the distribution of
first-year grades among these same students, the two humps have spread
out, in both directions (see Figure 5.2). Some black students (about 5%)
will do as well as the median white student because they came with strong
entering credentials (the right tail of the left hump in Figure 5.1).
Other black students (about 10%) will significantly outperform predictions
based on their credentials, and will also be in the middle of the class or
higher. Some white students with low credentials, and other [*432] whites
who significantly underperform their credentials, will fall into the
bottom quarter of the distribution. But the distance between the middle of
the two humps - the average gap between blacks and whites - remains
essentially unchanged. And the gap is large. When professors talk about
what the grades they give mean in terms of actual student understanding,
they tend to say that there is a broad middle section in which the
distinctions of understanding are relatively minor. There is a top group -
perhaps 10-15% of the total - that shows real mastery and goes beyond the
material, and a bottom group, again 10-15% of the total, that seems
fundamentally to miss the point. In other words, there are likely to be
very real educational consequences when the performance gap is as large as
what Table 5.1 and Table 5.3 show. As we will discuss more fully in Part
VI, the low grades that are a by-product of affirmative action have a
deeper significance beyond the ranking game. n178
[*433]
Figure 5.1: Distribution of Black and White Students at "Elite" Schools
by Academic Index, 1991 Cohort n179
[see org] [*434]
Figure 5.2: Distribution of Black and White Law Students at "Elite"
Schools by Standardized First-Year GPA, 1991 Cohort n180
* * *
During the second and third years of law school, we might well expect the
grade gap between blacks and whites to narrow significantly, for a variety
of reasons. As we have noted, a common premise of affirmative action
programs is that the more time disadvantaged students have to "catch up"
with more advantaged peers, the better they will do. And in law school,
changes in the environment in the second and third years provide
particularly good opportunities for students in academic difficulty to
catch up: competition is less intense; n181 fewer courses are curved
(which generally means fewer low grades); and students have far more
discretion in choosing subjects. Not least, professors' methods of grading
students are probably more heterogeneous in the second and third years of
law school than in the first, so timed exams probably play a less critical
role. n182
[*435] The LSAC-BPS data includes the cumulative GPA of students at
the end of their first year and at the time of law school graduation.
Comparing the total grade distribution for all students in the data set
would be misleading, because many of the weakest students drop out after
the first year of school. Table 5.4 therefore includes only black students
who actually completed law school, and compares the class standing of
these students at the end of the first year and at the end of the third
year.
Table 5.4: GPA Distribution of Black Students at the End of Their First
and Third Years, for All Law Schools in the LSAC-BPS
<WPTABLE>
Decile Proportion of Black Law School Graduates with Grades in Each Decile
1st Year GPA 3d Year (Cumulative) GPA
1st 41.4% 42.5%
2d 17.4% 18.0%
3d 11.3% 11.2%
4th 8.2% 9.0%
5th 6.5% 5.8%
6th 4.3% 5.0%
7th 3.3% 2.5%
8th 3.3% 2.5%
9th 2.3% 1.8%
10th 2.0% 1.7%
n of Black Students in Sample: 1385
Source: LSAC-BPS Data, supra note 133. n183 The universe on which the
deciles are calculated is just those students who graduated from law
school and had, in the LSAC-BPS data, valid first-year and cumulative
third-year GPAs (a total of 22,969 students). The difference between the
means of the first-and third-year grade distribution is small but highly
significant (p < .001). Because dropouts are excluded from the analysis,
this table somewhat overstates the performance of all blacks who complete
the first year of law school. </WPTABLE>
[*436] In relative terms, the grades of black law students actually go
down a little from the first to the third year. The average drop is a
little less than one-fifth of a standard deviation. The weaknesses in
black performance engendered by the large gap in entering credentials - in
turn engendered by large admissions preferences based on race - are not an
artifact of the first year. They do not shrink over time. Indeed, for
reasons I will explore more at the end of Part VI, they grow a bit.
* * *
The most immediate danger posed by poor performance in law school is
withdrawal or expulsion from law school. As we saw in Part I, attrition
was a major problem facing blacks admitted during the early years of
affirmative action. Schools sometimes adopted special policies for
minority students to minimize attrition, and overall attrition rates at
schools dropped sharply between the late 1960s and the 1980s. Over the
past fifteen years, overall law school attrition rates (at accredited
schools n184) have bounced between 6% and 12%. n185 Much of the attrition
these days is voluntary. Consequently, the problem of minority attrition
generally, and black attrition in particular, is now rarely discussed.
Nonetheless, what attrition remains falls disproportionately upon
blacks. In the LSAC-BPS data, 8.2% of the white students, but 19.2% of the
black students, who started law school in 1991 had not graduated by the
end of the study five years later. n186 What role do racial preferences -
and the consequently low performance of blacks in law school - play in
this disparity? Without the benefit of systematic data, one could make a
reasonable argument that preferences actually reduce black attrition. The
argument would run like this: More elite schools have higher graduation
rates than less elite schools; thus, giving blacks an extra hand into more
elite schools puts them at lower risk of attrition. If blacks nonetheless
are less likely to graduate, this is because of nonacademic factors like
fewer financial resources.
[*437] Part of this argument is true: in general, the more elite the
law school, the higher the graduation rate. Table 5.5 illustrates this
with the LSAC-BPS data. n187 Among the law students matriculating in 1991,
96.2% of the Group 1 students eventually got law degrees, compared to only
87% of the Group 5 students. Black attrition rates are higher than white
rates, and the gap grows as one moves down the spectrum of schools.
Table 5.5: Proportion of Matriculating Students Not Graduating, by Law
School
Group
<WPTABLE>
Law School Group Proportion of Matriculants in Each Group Not Graduating from
Law School Within Five Years
Whites Blacks All Students
Group 1: Most Elite Schools 3.3% 4.7% 3.8%
Group 2: Other "National" Schools 5.4% 12.1% 6.2%
Group 3: Midrange Public Schools 8.6% 19.7% 9.6%
Group 4: Midrange Private Schools 9.1% 22.5% 10.3%
Group 5: Low-Range Private Schools 11.7% 34.0% 13.0%
Group 6: Historically Minority Schools 8.2% 21.8% 15.5%
Total for All Law Schools 8.2% 19.3% 9.3%
n of Students Matriculating in 1991: 27,300
Source: LSAC-BPS Data, supra note 133. n188 Figures above are based on all
reported cases in the LSAC-BPS study. </WPTABLE>
But as we have seen, the more prestigious addresses provided blacks
through racial preferences come at a cost - lower performance in law
school. [*438] The question, then, is which is more important in
preventing attrition from school: getting respectable grades or going to
an elite school?
Table 5.6 examines this question with another regression analysis.
Unlike the regression reported in Table 5.2, where the dependent variable
(first-year grades) could take on many values, the dependent variable we
are now considering can take on only two values: a one if the study
participant graduated from law school, and a zero if she did not. With
such dichotomous (i.e., two-value) variables, the proper tool is logistic
regression rather than ordinary linear regression. The standardized
coefficients in a logistic regression measure the relative strength of the
independent variables in predicting the outcome of interest for each
individual - in this case, whether they will graduate. The Wald Chi-Square
values measure the reliability of each estimate, n189 and the p-statistics
put an intuitive gloss on the Wald Chi-Square value, demarcating
independent variables into those that have a "significant" or a
"nonsignificant" association with the graduation variable. n190 The
"Somers's D" is a measure of the model's effectiveness in predicting
outcomes. A model has a Somers's D of zero if it does not improve our
ability to predict a typical individual's outcome; it has a value of one
if it perfectly predicts every individual's outcome. n191
[*439]
Table 5.6: Relative Power of Alternate Predictors of Law School Graduation,
1991-1996
<WPTABLE>
Factor Standardized Coefficient Wald Chi-Square Chi-Square p-Value n192
Law School GPA (First Year) 0.764 1452.36 < .0001
Law School Eliteness 0.218 156.40 < .0001
Part-time -0.128 96.95 < .0001
Family Income 0.037 5.39 .02
Male -0.027 2.71 .10
Black 0.019 2.29 .13
Asian 0.004 0.08 .77
Other Nonwhite -0.007 0.18 .67
Hispanic 0.009 0.36 .55
n of Students in Model: 24,809
Somers's D: .645
Source: LSAC-BPS Data, supra note 133. n193 The dependent variable is
whether a matriculating first-year secures a law degree during the five
years of the study. Law school eliteness is measured on a scale of 1 to 6,
corresponding to the six groupings of schools in the LSAC-BPS data (but I
have assigned 6 to the most elite group, 5 to the next most elite group,
and so on, so that the coefficient is easier to interpret). For racial
variables, whites are the implicit control group. For men, women are the
implicit control group. A Wald Chi-Square value over 3.9 is generally
considered indicative of "statistical significance," and corresponds to a
p-value (reported in the right-hand column) of .05 or less. </WPTABLE>
This table tells us several things. Law school GPA is by far the
principal determinant of whether a student in the LSAC-BPS study failed to
graduate. School eliteness is a relevant factor, but it is overshadowed by
the importance of academic performance. n194 Part-time status is important
but affects a relatively small proportion of students; n195 higher family
income appears to play [*440] a marginal but measurable role. n196 Race is
irrelevant, or nearly so; blacks are no more or less likely to drop out
(or to be flunked out) of law school than other students with similar
grades in a school of similar prestige. n197 And if race is not a
significant predictor of attrition, this implies that there is no
correlate of race (e.g., discrimination) that causes blacks to drop out at
disproportionate rates. n198
This conclusion is borne out by looking at the individual records of
students who failed to get a degree. Nearly 90% of black students in the
LSAC-BPS data who only completed their first year (and thus presumably
failed to graduate) placed in the bottom 10% of their classes. The median
class rank of black students leaving law school between the first and
third year was between the second and third percentile.
All of this implies that racial preferences - boosting black applicants
into higher-tier schools - ends up hurting the chances that these students
will actually get law degrees. Those who receive preferences derive some
benefit (in terms of graduation rates) from going to a more elite school,
but they get much lower grades because of the preferences, and, on
balance, that significantly hurts their chances of graduating.
To test this idea directly, we can compare attrition rates for black
and white students who have similar pre-law school credentials. Table 5.7
makes this comparison. Each row examines the attrition rates of a narrow
band of black and white students - students who would, in the absence of
affirmative action, attend similar law schools. Black attrition rates are
substantially higher than [*441] white attrition rates at all but the very
highest academic levels. With this data, we can flesh out a pretty
complete picture of what is going on. At the most elite schools (the
schools attended by the one-eighth of black students with index scores
above 700), the advantages of low institutional attrition entirely offset
lower grades. But across most of the range of index scores, black
attrition rates are substantially higher than white rates, simply because
racial preferences advance students into schools where they will get low
grades. Attrition for both races, of course, goes up as index level goes
down. Racial preferences appear to have an effect on black attrition
roughly equivalent to lowering the index of the typical black student by
sixty to eighty points. Put more simply, affirmative action has a
moderately negative net effect on the rate at which blacks complete law
school.
Table 5.7: Proportion of White and Black 1991 Matriculants Not
Graduating, by Academic Index Level
<WPTABLE>
Index Range Proportion of Matriculants Not Graduating Within Five Years
Number of Blacks in LSAC Sample
Whites Blacks
Under 400 N/A* 39.6% 96
400-460 22.2% 33.1% 139
460-520 19.7% 25.6% 320
520-580 16.4% 21.1% 417
580-640 12.1% 15.4% 370
640-700 9.6% 10.7% 280
Over 700 7.1% 7.5% 239
Source: LSAC-BPS Data, supra note 133. n199
*There are too few whites at this level to make a meaningful comparison.
</WPTABLE>
To be more specific, affirmative action has two separate negative effects
on black graduation rates. The first result - our main focus in this
discussion - is the boosting of blacks from schools where they would have
had average grades (and graduated) to schools where they often have very
poor grades. For blacks as a whole, this phenomenon adds four to five
points to the black attrition rate. The second result follows from the
cascade effect. Lower-tier schools admit blacks who would not be admitted
to any school in the absence of preferences. These are the students with
very low index scores (low 400s and below), who have very high attrition
rates (33% to 40% in Table 5.7). n200 This second phenomenon adds another
six or seven points to the overall black attrition rate. [*442] Together,
these results account for the eleven-point gap between white and black
attrition rates we have seen in the LSAC-BPS data. n201
These attrition effects are disturbing, but by themselves they may
strike many readers as not all that important. The two effects impact only
one black law student in nine. It turns out, however, that these
mechanisms merely foreshadow a much larger effect: the consequences of
racial preferences for black performance on bar exams.
VI. Effects of Affirmative Action on Passing the Bar
The formal power to license professionals in America resides with the
state. In some fields, parts of the licensing process effectively have
been turned over to national professional boards, which establish
standards and administer examinations. This has gradually happened to a
degree in the law. Nearly all states require prospective lawyers to secure
a law degree from a law school accredited by the ABA and to take an
examination created by the National Commission of Bar Examiners. But to
this "multistate" test (which is a multiple-choice exam on general
knowledge of legal doctrine), each individual state adds its own exam,
usually a series of essay questions and sometimes a simulation of
real-life practitioner problems, and each state sets its own threshold for
passage and subsequent admission to the bar.
In most states and for most students during the 1980s and 1990s,
passing the bar was regarded as a relatively modest hurdle. In the
LSAC-BPS data (covering 1994-1996), about 88% of accredited law school
graduates taking the bar for the first time passed it. n202 The eventual
passage rate for this cohort was approximately 95%. n203 Since each state
has its own threshold, however, these rates vary significantly. n204
[*443] For blacks, the bar exam poses a substantially higher hurdle.
Only 61.4% of black takers in the national LSAC-BPS study passed the bar
on their first attempt - blacks in this cohort were four times as likely
to fail on their first attempt as whites. n205 The pass rate for blacks
through five attempts was 77.6%; the black failure rate through five
attempts was more than six times the white rate. n206
The fact that there are large racial disparities in bar passage rates
will not come as news to most observers in legal academia (though the
magnitude of the gap may surprise some). Most deans and law professors
seem to have rather wearily accepted the idea that blacks "have trouble"
on the bar. n207 The evidence in this Part suggests that blacks have
trouble with the bar for reasons that have nothing to do with race, and
everything to do with preferential policies.
* * *
If we want to predict in advance who will pass a bar examination in a
particular state, and who will fail, the overwhelming determinant of
success is one's law school GPA. For example, at my own law school (UCLA),
students who are in the top 40% of the class upon graduation have a 98%
bar passage rate, while those in the bottom 10% of the class have a 40%
pass rate. n208 Among students at a single school, law school grades have
a higher correlation with bar scores than any combination of the LSAT and
undergraduate grades has with law school grades. If we use logistic
regression to predict bar passage (using the LSAC-BPS data), we can
directly measure the relative effectiveness of a variety of predictors.
[*444]
Table 6.1: Relative Power of Alternate Predictors of Bar Passage, 1991-1996
<WPTABLE>
Factor Standardized Coefficient Chi-Square Test Statistic Chi-Square
p-Value n209
Law School GPA 0.76 808.16 < .0001
LSAT 0.28 158.28 < .0001
Law School Tier 0.17 56.74 < .0001
Undergraduate GPA 0.11 31.00 < .0001
Male 0.05 7.31 .007
Asian -0.02 1.13 .29
Black -0.01 0.54 .46
Other Nonwhite -0.01 0.48 .49
Hispanics -0.004 0.08 .78
n of Bar-Takers in Model: 21,425
Somers's D: .763
Source: LSAC-BPS Data, supra note 133. n210 The dependent variable is
whether a person passes the bar on one of her first two attempts. For
racial variables, whites are the implicit control group. For men, women
are the implicit control group. A Wald Chi-Square value over 3.9 is
generally considered indicative of some "statistical significance." n211
</WPTABLE>
If we know someone's law school grades, we can make a very good guess
about how easily she will pass the bar. If we also know her LSAT score,
her undergraduate GPA, and the eliteness of her law school, we can do even
better (we could do still better if we knew in which state she took the
bar, but this information is not in the LSAC-BPS data). When we control
for these other [*445] factors, men have a very slight advantage over
women (their pass rate is about one-half of one percentage point higher).
But knowing someone's race seems irrelevant - if we know the other
information in this table. Blacks qua blacks, and Hispanics qua Hispanics,
do no worse on the bar than anyone else. n212
The implications of this regression - which hold up consistently under
many different formulations n213 - are profound, though they take a while
to digest. For most blacks benefiting from affirmative action by law
schools, the issue is not whether they will get into a law school but,
rather, how good of a law school. Going to a better school, we have seen,
carries with it a higher risk of getting poor grades; going to a much
better school creates a very high risk of ending up close to the bottom of
the class. Prospective law students tend to assume automatically that
going to the most prestigious school possible is always the smart thing to
do, but we can now see that there is, in fact, a trade-off between "more
eliteness" and "higher performance." And the regression results in Table
6.1 mean that, if one's primary goal is to pass the bar, higher
performance is more important. If one is at risk of not doing well
academically at a particular school, one is better off attending a less
elite school and getting decent grades.
If I am drawing the correct inferences from Table 6.1, then we should
observe blacks doing worse on the bar than whites with similar pre-law
school credentials. Blacks with an LSAT-UGPA index score of, say, 600 will
tend to end up at much more elite schools than will whites with index
scores of 600, but as a result the blacks will end up with lower law
school grades. When they take the bar, they will get a small lift from
going to a more elite school, but a big push down from getting lower
grades. The net effect will be a markedly lower bar passage rate. Table
6.2 summarizes the actual bar results for those in the LSAC-BPS.
[*446]
Table 6.2: Bar Passage Rates in the United States for Whites and Blacks,
1991-1996
<WPTABLE>
Index Range Proportion of Bar-Takers Failing on the First Attempt (for the
Entire United States)
Whites Blacks
400-460 52% 71%
460-520 34% 55%
520-580 26% 47%
580-640 19% 34%
640-700 13% 26%
700-760 9% 12%
760-820 5% 12%
Bar-Takers in Sample 19,112 1346
Source: LSAC-BPS Data, supra note 133. </WPTABLE>
The actual bar results closely follow the empirical "prediction" from the
regression model. At a given index level, blacks have a much higher chance
of failing the bar than do whites - apparently, entirely as a result of
attending higher-ranked schools and performing poorly at those schools.
Indeed, the consequences of affirmative action - in terms of passing the
bar - seem to be roughly equivalent to subtracting 120 points from the
academic index of the typical black student: blacks in the index range of
580 to 640 have the same bar passage rate as whites in the index range of
460 to 520; blacks in the range of 760 to 820 pass at the same rate as
whites in the range of 640 to 700. n214
One problem with this analysis is that I am aggregating bar results
from fifty different jurisdictions - which, as noted earlier, all have
particular idiosyncrasies in exam formats and passage rates. If blacks
were concentrated in a few jurisdictions with unusually difficult bars,
then the data in Table 6.2 would be misleading. The LSAC-BPS database does
not, unfortunately, identify individual states, but it does identify in
which of twelve regions each participant sat for the bar. I computed how
many blacks would have passed the bar on the first attempt had they been
distributed across regions in the same way as whites; the number was
essentially identical to the actual reported total. n215 I also examined
in detail the data from the "Far West" region, which in [*447] this
database is almost synonymous with California. n216 The sample size of
blacks in this region is modest (121 bar-takers), so comparisons with
whites are less statistically reliable, but the pattern is borne out. The
weighted average black-white gap in passage rates for first-time
bar-takers with comparable academic indices is 23.7 percentage points in
the Far West region, compared to 16.7 percentage points in the nation as a
whole, partly because failure rates are generally higher in California and
partly because the gap is likely to be more stark when one is making
comparisons within a single jurisdiction.
This data tells a powerful story: racial preferences in law school
admissions significantly worsen blacks' individual chances of passing the
bar by moving them up to schools at which they will frequently perform
badly. I cannot think of an alternative, plausible explanation. If there
were any other factor that somehow disadvantaged blacks - e.g., if blacks
had more trouble affording bar-preparation classes and were therefore more
likely to go it alone - then this would make being black an independently
significant causal factor in bar passage rates. But it is not.
* * *
As with attrition rates, the black-white gap in bar passage rates largely
seems driven by two by-products of affirmative action. The first is the
pattern I just discussed: blacks having lower passage rates because of low
GPAs, which in turn are a function of racial preferences. The second is a
by-product of the cascade effect: with blacks consistently pulled up the
prestige ladder by preferences, low-tier schools must choose between
having no blacks at all or admitting blacks with very low numbers. Most of
these schools follow the latter course, with the result being that a large
number of blacks enter law school with very low academic credentials. In
the national LSAC-BPS study, 22% of black students matriculating in 1991
had an academic index of 500 or less; only 0.2% of whites had scores in
this range. And among students of all races with scores in this range,
over 60% fail the bar on their first attempt (and 42% do not pass after
multiple attempts). Since the black students admitted in this range are
also usually competing against higher-index peers, they also suffer the
disadvantages of low GPAs. In other words, these students face very long
academic odds indeed. In the LSAC-BPS study, only 22% of the blacks who
started law school with academic indices below 500 ended up getting a law
degree and passing the bar on their first attempt.
[*448] We can disaggregate the black-white gap in bar passage rates by
standardizing the black bar passage rate to the white rate at each index
level. Out of the 1346 blacks in the LSAC-BPS sample who took the bar, 516
(nearly 40%) failed at least once - nearly five times the white failure
rate. These 516 cases break down as follows: n217
. About 99 blacks in the sample, nearly one-fifth of those who failed,
were graduates with very low academic indices (470 or lower), who probably
would not have been admitted to a law school in the absence of racial
preferences.
. Another 235 blacks in the sample failed through the mechanism
described in this portion of the paper: racial preferences elevated them
to a school where they were at an academic disadvantage and performed
poorly, lowering their chances of passing the bar.
. Approximately 107 blacks would have failed the bar one or more times
had blacks as a group had the same failure rate as whites as a whole.
. The remaining 128 black failures on the bar can be attributed
primarily to the lower average credentials blacks had in the 1991 cohort,
even among those who would have been admitted to some law school in the
absence of racial preferences. This group reminds us that the black-white
gap on bar passage would not completely disappear in the absence of racial
preferences. The gap would narrow dramatically, however.
* * *
Many of the causal mechanisms underlying the findings in Parts V and VI
have not been very mysterious. If one believes the regression results and
accepts that academic credentials have a lot to do with ultimate
performance, it is not hard to understand why admitting students with very
poor credentials would lead to lower graduation rates and lower
performance on the bar. And it makes sense that if racial preferences lead
to lower law school grades for blacks, then they will experience higher
attrition in law school. But it may not be obvious to many readers why it
should be that black students with good credentials should lower their
chances of passing the bar simply by attending a better school. Let us
ponder this a little.
The basic idea is that a black student who, because of racial
preferences, gets into a relatively high-ranked school (say Vanderbilt,
ranked between fifteenth and twentieth in most surveys) will have a
significantly lower chance of passing the bar than the same student would
have had if she had attended a school that admitted her on the basis of
academic credentials alone (say, [*449] University of Tennessee, ranked
between fortieth and sixtieth in most surveys). As we have seen, the
evidence shows that a student's race has nothing to do with her chances on
the bar; n218 her law school grades have everything to do with it. This
seems logical enough within an individual school. But why exactly should
the same student have a lower chance of passing the bar if she gets Cs at
Vanderbilt than if she gets Bs at the University of Tennessee?
One theory I have heard a number of times in casual conversation is
that less elite law schools take more seriously the task of preparing
their students for the bar. The argument goes that since students at these
schools have a greater risk of failing the bar, their faculties
deliberately focus more on black-letter law and less on theory, providing
a better foundation that, other things being equal, helps their graduates
on the bar. If this theory is true, it might explain why a student
attending the University of Tennessee would have a higher chance of
passing the bar than a similar student at Vanderbilt. n219 But the data in
Table 6.1 cuts against this theory. When we control as best we can for the
incoming credentials of student bodies, students at more elite schools
have higher, not lower, success rates on the bar. n220 Something else is
going on.
The hypothesis in the back of my mind when I started this research was
that students simply learn less when they are academically mismatched with
their peers. I drew on a painful personal experience to flesh out this
idea. Foreign languages are my academic Achilles's heel. In my public high
school, French was always my poorest subject, but I was a strong enough
student generally that I did not labor under any special handicap in
French and kept pace with my friends. A few years later, while an
undergraduate at Harvard, a misplaced interest led me to sign up for
elementary German. Although it was a beginning class, my basic aptitude
was weak enough that I had great difficulty keeping up. Most of the class
caught on with what seemed to me a nearly supernatural speed, and the
teacher was soon racing along. As I fell behind, I felt more and more
lost; soon I was attending class only to keep up appearances. My confusion
fed upon itself all semester, and I came within a whisker of flunking out
- not an easy thing to do in any Harvard course. There [*450] seemed
little doubt to me that despite my weak linguistic skills, I would have
learned far more German in a class with less talented peers. n221
I observe a similar pattern as a law teacher. Students who stumble at
the beginning of a course often become progressively more confused as the
semester wears on. What is initially just a shaky handle on the course
vocabulary becomes a serious handicap in remaining engaged with classroom
discussion, and problems feed upon themselves. By the end of the semester,
the gap I observe between the C finals and the B finals is more than just
a matter of degree - many C students seem to have missed fundamentals. In
a less competitive school, the same student might well thrive because the
pace would be slower, the theoretical nuances would be a little less
involved, and the student would stay on top of the material. The student
would thus perform better in an absolute as well as a relative sense.
This "academic mismatch" hypothesis has struck a number of legal
educators as a likely problem for students whose academic credentials are
significantly weaker than those of their classmates. Many of these
observers have articulated a causal mechanism much like the one I just
described: an initial academic disadvantage can produce cumulative effects
of substantially less learning. n222 Others have suggested that similar
effects might come from slightly different causes. The "stress theory"
suggests that students who are at a relative disadvantage in class will
experience higher stress, and the stress will get in the way of learning.
n223 The "disengagement theory" suggests that students who do poorly in a
relative sense will initially be disappointed in themselves, but as they
continue to struggle they will tend to blame the system - the professor,
the school, or legal education generally - and will [*451] reduce effort.
n224 Both the stress and disengagement theories suggest plausible ways
that doing worse in a relative sense leads to doing worse in an absolute
sense.
Much of the evidence behind these theories is more anecdotal than
systematic, but there are a few helpful studies. Linda Loury and David
Garman found that the lower a black student's credentials are relative to
the median student at his undergraduate college or university, the lower
his grades are likely to be and the less likely he is to graduate. n225
Audrey Light and Wayne Strayer, in a separate analysis, found the same
pattern. n226
Rogers Elliott's study of minority student enrollment and persistence
in science majors provides one of the clearest examples of the mismatch
effect. n227 Elliott examined the standardized test scores and academic
records of the white, Asian, black, and Hispanic students who enrolled at
four Ivy League schools in 1988. His principal finding was that despite an
expressed interest in science rivaling that of white and Asian students,
non-Asian minority students were less likely to enroll and persist in
science majors. n228 This increased attrition among non-Asian minorities,
Elliott concluded, was not correlated with ethnicity per se, but rather
"it was the preadmission variables describing developed ability - test
scores and science grades - that accounted chiefly both for initial
interest and for persistence in science." n229
However, it was not absolute test scores that mattered, but rather the
location of a test score in the distribution of all test scores at a
specific institution. To demonstrate this point, Elliott used data from
eleven private colleges, some very selective, others less so, to examine
the distribution of natural science degrees as a function of graduates'
SAT Math scores (SATM). n230 After dividing the SATM distribution into
terciles, Elliott found that at the most selective institution in this
database, 53.4% of the science [*452] degrees were earned by the top third
of the SATM distribution, with an average SATM of 753, while the bottom
tercile, with an average SATM of 581, earned 15.4% of the science degrees.
n231 The least selective of the eleven, a school with a top-tercile SATM
mean of 569, exhibited an almost identical distribution, with the top
third earning 55% of the natural science degrees and the bottom third
(with a mean SATM of 407) earning 17.8%. n232 In other words, it was not
the absolute ability of a student that determined staying power in the
traditionally more difficult natural science majors, but rather the
student's ability relative to his or her peers.
Where a student's numbers fall relative to his classmates depends, of
course, upon the criteria used by the college admissions office to admit
that student, a point Elliott does not hesitate to make:
The gap in developed ability between the white-Asian majority and
non-Asian minorities, especially blacks, especially in science, results
from institutional policies of preferential admission from pools differing
in measures of developed ability and achievement at the point of entry
into higher education ... . That being the case, non-Asian minority
students initially aspiring to science will continue for some time to bear
a cost in lower grades and in altered academic and vocational goals. n233
Since blacks receive the biggest bump up with respect to admissions, we
would expect fewer blacks with an interest in science to persist in
studying science beyond a certain amount of time. The breakdown by race
for the Ivy League subjects in Elliott's study supports this hypothesis:
"the combined effects of persistence, recruiting, and termination left
45.2% of the entire incoming group of Asians, 30.1% of whites, 27.8% of
Hispanics, and 16.6% of blacks still majoring in science after 4 years."
n234 In other words, being academically mismatched with one's peers has a
powerful impact on one's ability to learn and to achieve one's academic
goals.
Stephen Cole and the late Elinor Barber have found a very similar
pattern in the academic aspirations of black undergraduates. n235 Their
book, Increasing Faculty Diversity, aims to develop strategies to increase
the presence of minorities in academia. They find that the use of large
racial preferences by liberal arts colleges tends to place black students
in schools where they will perform poorly. n236 Low grades, in turn, sap
student self-confidence and may produce still lower grades by feeding
"stereotype threat." n237 The net result is that "African American
students at elite schools are significantly less likely to [*453] persist
with an interest in academia than are their counterparts at nonelite
schools" n238 - especially when one controls for credentials.
The 1995 National Survey of Law Student Performance provides some
corroboration of the mismatch hypothesis from students' self-reported
experiences. n239 In the survey, first-semester black law students
reported spending as much time studying as did white students, n240 but
found themselves substantially less prepared for class. Seventy-one
percent of white students said that they completed the assigned reading
before "all or nearly all" of their classes, compared to 52% of black
students. n241 In other words, even though black students gave the same
effort as their white peers, competing against students with much higher
credentials meant that this effort translated into a lower level of class
preparation; this in turn plausibly led to greater difficulty following
class discussions, and less overall learning. It is not hard to imagine
the snowball effect.
Research on the "academic mismatch" phenomenon has not settled on an
exact causal mechanism, but there is a growing consensus that the mismatch
problem is real and that it is exacerbated by large racial preferences in
admissions. The most conclusive way to demonstrate that law school racial
preferences cause blacks to learn less and to perform worse would be an
experiment comparing matched pairs of blacks admitted to multiple schools,
with the "experimental" black student attending the most elite school
admitting them and the "control" black student attending a significantly
less elite school. n242 The problem with conducting such research is that
just like students of other races, few blacks pass up the opportunity to
go to more elite schools. The analysis I report here takes advantage of
the fact that affirmative action policies place similar blacks and whites
at very different institutions. These policies create an opportunity for a
natural experiment on the effects of academic mismatch - an experiment
that shows that it has large and devastating effects on blacks' chances of
passing the bar. It is clear enough that going to a school where one 's
academic credentials are well below average has powerful [*454] effects on
performance in law school and on the bar. This seems necessarily to imply
that such a student is learning less than she would have learned at a
school where her credentials were closer to average.
* * *
We saw in Part V that blacks fail to complete law school at a
disproportionate rate, for mostly academic reasons. We have seen in this
Part that blacks fail the bar at a disproportionate rate. If we put these
two patterns together, the emerging picture is discouraging. Of all the
black students in the LSAC-BPS study who began law school in 1991, only
45% graduated from law school, took the bar, and passed on their first
attempt. The rate for whites was over 78%. After multiple attempts, 57% of
the original black cohort become lawyers. But this still means that 43% of
the black students starting out never became lawyers, and over a fifth of
those who did become lawyers failed the bar at least once.
If the systemic goal of affirmative action is to produce as many
well-trained minority lawyers as we can, we have now seen several reasons
to doubt that the system is working. Taken as a whole, racial preferences
in law schools lower black academic performance and place individual
blacks at a substantially higher risk of not graduating from law school
and of not passing the bar. In the next two Parts, we will consider
whether racial preferences in legal education help blacks in the job
market or increase the overall number of black lawyers. Suppose, for the
sake of argument, that we find that the system does work to achieve those
goals for blacks in the aggregate; one must in any case pause here and
ask, Are racial preferences fair to blacks as individuals? Do the blacks
with good credentials understand that affirmative action places them at
substantially higher risk? Do the blacks with low credentials understand
the long odds against their ever becoming lawyers? Do we at least owe
prospective participants in the system fuller disclosure about the bargain
they are undertaking?
VII. The Job Market
The most widely presumed benefit accruing to black students from
affirmative action is the entree they are given to more (and more elite)
employers by virtue of going to higher-tier schools. Students attending
Yale instead of Fordham, or Fordham instead of Brooklyn, will have many
advantages. They will develop contacts with more fellow students who are
going places; they may be befriended by better-known faculty members; more
employers will come to interview at their law school. The name-brand
status of their school is valuable to their employer and admired by future
clients.
Again, the implicit question posed by a system of large racial
preferences is whether the advantages of going to a more elite school
offset the [*455] disadvantage of probably not doing well there. Most
observers think that the answer to this question is so obvious that it
hardly bears asking. Undergraduates expend much sweat and energy to get
into the "best" law school they can. Students who ace their first year of
law school often try to transfer to a higher-ranked school; seldom, if
ever, do they try to transfer to a lower-ranked one. The danger of not
doing well once in a strong law school does not seem to trouble many
minds.
Indeed, in a famous paper that probably figured in the Grutter
decision, three distinguished academics argued that minorities n243 reap
substantial benefits from attending a more elite school like the
University of Michigan Law School without paying any obvious price. In The
River Runs Through Law School, Richard Lempert, David Chambers, and Terry
Adams studied surveys that they and the University of Michigan Law School
gathered from decades of school alumni. They looked at three job outcomes
- income, satisfaction, and public service - and concluded as follows:
Perhaps the core finding of our study is that Michigan's minority
alumni, who enter law school with lower LSAT scores and UGPAs than its
white alumni and receive, on average, lower grades in law school than
their white counterparts, appear highly successful - fully as successful
as Michigan's white alumni - when success is measured by self-reported
career satisfaction or contributions to the community. Controlling for
gender and career length, they are also as successful when success is
measured by income. n244
Since Lempert et al. also believe that law school prestige matters a lot,
n245 the implication of their findings is that brand name means
everything. The logical corollary for affirmative action is that it is
intrinsically wrong to deny blacks something like a proportionate share of
the best name brands, since they will obviously benefit from them as much
as whites will.
The River Runs Through Law School, like its eponymous forebear, The
Shape of the River, has had enormous impact because, in dealing with
careers rather than test scores and exams, it seems much more grounded in
the real world. After all, the supposed purpose of all the tests and all
the sorting is to determine the potential contributions and abilities of
people in jobs and in the [*456] profession. If career outcomes bear
little relation to predictors, then what is the predictors' legitimate
value? And what is the justification for using scores and other seemingly
worthless indicia to allocate scarce seats in elite schools?
Of course, we sense in our day-to-day dealings with professionals that
cognitive skill and subject mastery do matter. We value doctors, lawyers,
and engineers who are smart, who can easily explain competing theories,
who can remember minutiae about their fields, who are good
problem-solvers. But perhaps it is the case that above some basic
threshold, variations in these skills are less important to job
performance and success than many other things, such as how conscientious,
well-spoken, diligent, likable, or ethical someone is - things which
possibly are only weakly correlated with cognitive skills and which are
almost never measured along the path to becoming a lawyer.
The task in this Part is to explore what shapes job outcomes for
lawyers. How much does school prestige matter? How much do grades matter?
Can any of the "softer" qualities that are poorly captured by conventional
credentials be linked to success on the job market? Until very recently,
it would have been impossible to say much about any of these questions.
But as it happens, we can now say a lot.
* * *
For the past five years, I have been part of a team of researchers and
institutions attempting to develop, for the first time, a systematic
longitudinal portrait of the legal profession. Our project, known as
"After the JD" (AJD), is attempting to track roughly ten percent of those
who became lawyers in the year 2000 through the first ten years of their
careers. n246 We finished the first wave of data collection in 2002 and
early 2003, so the first real fruits of this project are detailed survey
data on over four thousand attorneys in their second or third year of
practice after law school. As with any large project serving many
purposes, the data set has both strengths and limitations for studying a
specific topic like affirmative action. People are only in our sample if
they actually became lawyers, so law students who did not graduate, and
graduates who did not pass the bar, are not visible. The LSAC provided us
with approximate data n247 on the undergraduate grades and LSAT scores of
[*457] participants, but for law school grades we relied on the
participants themselves. Our law school GPA data is, accordingly,
self-reported and incomplete, n248 and covers only cumulative grades, not
the more standardized and reliable first-year grades. On the other hand,
our data set includes the actual law school participants attended (not a
general "cluster"), the actual college they attended, and a wealth of
concrete data about participants' backgrounds, law school experiences, job
histories, hiring processes, work environment, and employers. Most
importantly, the AJD project tracks a broadly representative sample of the
entire national population of young lawyers, thus fitting with the key
goal of this study - to examine affirmative action systemically, and not
simply through the lens of elite schools. n249
The AJD data is so rich that there are an almost unlimited number of
ways to explore the workings of the job market for young lawyers. I will
add a number of refinements to the discussion as I proceed, but let me
start by examining a very simple question: is there any evidence that
higher law school grades help students secure higher-paying jobs? n250 To
make it particularly straightforward, let us initially consider only the
sixty-five percent of lawyers in the AJD sample that were working in
private firms. These firms range from small, two-lawyer offices where new
associate salaries are often under $ 50,000, [*458] to megafirms and elite
boutiques with starting salaries above $ 120,000. Since the focus is on
young lawyers with salaries, I exclude solo practitioners, partners, and
others who appear to be nonsalaried employees.
Table 7.1 shows the results of this basic regression model. The
dependent variable is the log of the lawyers' annual earnings. By
"logging" earnings, we focus on proportionate rather than absolute
differences (so the difference between $ 40,000 and $ 60,000 is equivalent
to the difference between $ 100,000 and $ 150,000). n251 Using a logged
dependent variable also means that the coefficients for each independent
variable represent, in essence, the percentage increase in the dependent
variable (in this case, lawyer income) that is associated with a
one-increment change in the independent variable.
Table 7.1: Simple Regression of Earnings of Second-Year Associate Lawyers in
Private Firms n252
<WPTABLE>
Independent Variable Raw Coefficient Standardized
Coefficient t-Statistic
Market Area 0.134 0.408 21.8
School Prestige (2003 U.S. News & World Report Rank Categories) 0.099 0.237
12.8
Law School GPA
(4.0 scale) 0.471 0.347 19.1
Asian 0.012 0.007 0.41
Black 0.103 0.056 3.2
Hispanic 0.008 0.005 0.3
Other Nonwhite -0.030 -0.012 -0.7
Male 0.102 0.11 6.4
n of Second-Year Associate Lawyers in Private Firms: 1778
Adjusted R[su'2'] of Model: .477
Median Income of Respondents: $ 90,000
Source: AJD Data, supra note 249 (national sample and minority oversample,
unweighted). </WPTABLE>
The model has an R[su'2'] of over .47 - relatively high for an earnings
model. The most statistically reliable predictor of earnings variation is
the "region" variable. The 0.137 coefficient on this variable means that,
other things being equal, young lawyers working in New York earn about 14%
more than those working in the next tier of legal markets (i.e.,
Washington, Los Angeles, [*459] Chicago, and San Francisco); those in the
second tier earn about 14% more than those working in the third tier
(e.g., Atlanta, Houston, Minneapolis), and so on. n253 We can say it is
the single most powerful predictor of earnings both because it has the
highest t-statistic (a measure of how reliably the dependent variable
fluctuates with that particular independent variable, controlling for
other factors) and because it has the highest standardized coefficient. A
standardized coefficient of 0.41 means that a single standard deviation
change in market prestige corresponds to 41% of a standard deviation
change in a respondent's earnings.
The second-most-powerful predictor of earnings is not school prestige
(a distant third), but law school grades. Law school grades are here
measured by the box a respondent checked on the survey form (asking about
law school GPA, and providing boxes ranging from "below 2.25" to "3.75 to
4.0"). n254 The prestige of a law school in this regression is measured by
which of five tiers a school fell into in the U.S. News & World Report
rankings of law schools in 2003. The t-statistic and the standardized
coefficient of GPA, in this model, are nearly half again as large as the
corresponding values for school prestige. Grades seem to be important
indeed.
The model also shows interesting gender and race effects. The men in
our law firm sample earn about 10% more than women, when controlling for
the other factors in the model. This would not surprise most observers,
but should not be taken as conclusive evidence of systemic discrimination
without taking into account a number of other factors that might obviously
vary by gender, like work sector, child-care leaves from work, average
hours, and so on. With the controls in this model, blacks generally also
earn about 10% more than whites; n255 the coefficients for Asians and
Hispanics are not significant. This suggests that blacks experience
significant preferences in the private firm job market, but that other
racial groups do not - although again, not too much should be inferred
from such a simple analysis. n256
[*460] One can get a more intuitive and accessible sense of the
relative job market value of law school prestige and law school GPA
through a simple cross-tabulation. Table 7.2 shows the median salary of
all lawyers in the AJD who had a given combination of school prestige and
GPA. The data show an unsurprising association between school prestige and
income, though across the great middle range of schools (rank 21-100 and
Tier 3, which extends to rank 149) the differences are modest. The
relationship of grades and income is also very clear; in all schools
outside the top ten, there is a large market penalty for being in or near
the bottom of the class.
Table 7.2: Grades, Selectivity, and Median Salary
<WPTABLE>
Law School GPA Law School Tier
Top 10 Top 11-20 Top 21-100 Tier 3 Tier 4
3.75 - 4.00 $ 130,000 $ 135,000 $ 100,000 $ 93,000 $ 79,000
3.50 - 3.74 $ 140,000 $ 127,460 $ 90,000 $ 90,000 $ 79,000
3.25 - 3.49 $ 135,000 $ 105,000 $ 80,000 $ 65,000 $ 57,000
3.00 - 3.24 $ 125,000 $ 100,000 $ 63,000 $ 55,820 $ 60,000
2.75 - 2.99 $ 56,000 $ 51,025 $ 55,000 $ 50,000
2.50 - 2.74 $ 49,000 $ 51,500 $ 51,000 $ 50,000
Source: Dinovitzer et al., supra note 249, at 44 tbl.5.3 (2004). Tiers are
from the 2003 U.S. News & World Report rankings. </WPTABLE>
It is clear enough that law school grades are quite important, perhaps
more important than law school prestige in determining who gets what jobs.
If true, this suggests that affirmative action may pose a bad trade-off
for blacks: the better brand names they secure through preferential
admissions may not offset the lower grades they get (on average) as a
consequence. n257
Still, one should not be hasty. On reflection, one can see reasons why
this analysis might be deceptively simple. For one thing, law school
grades here are measured on an absolute scale - a 3.0 at Stanford is
treated the same way as a 3.0 at Southwestern - even though more elite
schools give proportionately more As and fewer Cs to their students than
do less elite schools. n258 This measure of GPAs is thus subtly conflated
with school prestige, and may be [*461] indirectly measuring benefits that
are properly attributed to prestige. My measure of prestige is also rather
crude - a single, numbered index based on a disputed methodology n259 -
that may not be picking up actual patterns of employer preference.
To deal with the grading problem, I standardized law school GPA among
the students at each school - that is, I measured each respondent's GPA by
her distance, in standard deviations, above or below the mean reported GPA
at her school if the data set contained at least ten valid grades from
that school. n260 Since this method tosses out schools with fewer than ten
valid observations, and since the procedure significantly modifies the raw
data, I include in the next set of regressions one analysis with "raw" GPA
and one with "standardized" GPA.
To better capture the effects of prestige, I used a standard
statistical procedure for capturing the differing influences of a variable
whose effects may change from one category to another: I used a series of
"categorical" prestige variables. I split schools into eight categories,
based on their median student LSATs and their academic rankings. n261 The
lowest prestige category is omitted as the "control" category; the other
categorical variables essentially measure the earnings benefit of being in
that category of schools as compared to being in the lowest category. n262
[*462] Finally, I added a number of other variables to try to capture
other aspects of the job market: whether a lawyer worked full-time or
part-time, whether she had an engineering or "hard science" background,
whether she reported that "high earnings" were a very important factor in
selecting a job, whether she had served as a federal judicial clerk, and
so on. I added a "dummy" variable denoting public sector employment, so
that the eighteen percent of new attorneys working at various levels of
government would be included as well. Income is again logged in both of
the regressions reported in Tables 7.3 and 7.4. The first regression
(Table 7.3) uses raw GPA, and the second (Table 7.4) uses my
"standardized" GPA.
[*463]
Table 7.3: Regression of Earnings of Attorneys Completing Second Year of
Practice, Using Raw GPAs
<WPTABLE>
Independent Variable Standardized Coefficient Parameter Estimate
t-statistic p-value
Tier of Metro Market 0.340 0.115 21.1 < .0001
Private Sector 0.294 0.365 18.3 < .0001
Raw Law School GPA 0.261 0.361 16.6 < .0001
School Prestige Tier 1 0.179 0.296 6.2 < .0001
School Prestige Tier 2 0.113 0.161 3.5 .0004
School Prestige Tier 3 0.082 0.108 2.4 .02
School Prestige Tier 4 0.018 0.022 0.50 .61
School Prestige Tier 5 -0.043 -0.054 -1.2 .21
School Prestige Tier 6 -0.014 -0.023 -0.51 .61
School Prestige Tier 7 -0.058 -0.080 -1.8 .07
Asian 0.020 0.034 1.3 .19
Black 0.039 0.070 2.6 .01
Hispanic 0.004 0.008 0.29 .77
Other 0.002 0.006 0.17 .87
Male 0.048 0.046 3.2 .001
Has Children 0.021 0.023 1.2 .23
Bar Year of Admission 0.005 0.007 0.32 .75
Moot Court Participation -0.007 -0.005 -0.45 .65
School Govt. Participant/Leader 0.025 0.021 1.7 .08
Earnings Important as a Goal 0.084 0.051 5.7 < .0001
Working Full-Time 0.095 0.356 6.4 < .0001
Has Other Job -0.007 -0.020 -0.49 .63
Associate or Staff Attorney -0.170 -0.163 -7.8 < .0001
General Clerkship -0.007 -0.032 -0.46 .64
Hours Billed 0.149 0.146 6.8 < .0001
Hours Worked 0.050 0.002 3.4 .0007
Engineering, Physical Science, or Math Undergraduate
Major 0.108 0.197 7.4
< .0001
Has MBA 0.011 0.039 0.74 .46
Roman Catholic 0.009 0.011 0.56 .57
Jewish 0.025 0.061 1.6 .10
Married Currently 0.024 0.023 1.5 .15
Law in Family 0.025 0.017 1.7 .09
Age -0.044 -0.028 -2.8 .006
n of Attorneys Completing Second Year of Practice: 2013
Adjusted R[su'2'] of Model: .595
Source: AJD Data, supra note 249 (national sample and racial oversample,
unweighted). For definitions of key variables, see text. The median annual
income of the respondents is $ 80,000. </WPTABLE>
[*464]
Table 7.4: Regression of Earnings of Attorneys Completing Second Year of
Practice, Using Standardized GPAs
<WPTABLE>
Independent Variable Standardized
Coefficient Parameter
Estimate t-statistic p-value
Tier of Metro Market 0.361 0.122 21.2 < .0001
Private Sector 0.306 0.382 18.2 < .0001
Standardized Law School GPA 0.252 0.123 15.9 < .0001
School Prestige Tier 1 0.258 0.404 5.5 < .0001
School Prestige Tier 2 0.198 0.266 3.7 .0002
School Prestige Tier 3 0.148 0.194 2.7 .006
School Prestige Tier 4 0.067 0.082 1.2 .24
School Prestige Tier 5 0.008 0.009 0.14 .89
School Prestige Tier 6 0.013 0.023 0.32 .75
School Prestige Tier 7 -0.037 -0.053 -0.76 .45
Asian 0.023 0.041 1.5 .14
Black 0.053 0.094 3.3 .0011
Hispanic 0.004 0.008 0.29 .77
Other 0.016 0.040 1.1 .30
Male 0.038 0.037 2.4 .015
Has Children 0.020 0.022 1.1 .27
Bar Year of Admission 0.001 0.002 0.09 .93
Moot Court Participation -0.006 -0.005 -0.40 .69
School Govt. Participant/Leader 0.032 0.028 2.1 .03
Earnings Important as a Goal 0.086 0.052 5.6 < .0001
Working Full-Time 0.108 0.397 7.0 < .0001
Has Other Job -0.007 -0.021 -0.48 .63
Associate or Staff Attorney -0.163 -0.157 -7.1 < .0001
General Clerkship -0.004 -0.017 -0.2 .81
Hours Billed 0.147 0.144 6.4 < .0001
Hours Worked 0.046 0.002 3.0 .003
Engineering, Physical Science, or Math Undergraduate
Major 0.108 0.198 7.1
< .0001
Has MBA 0.012 0.046 0.80 .42
Roman Catholic 0.017 0.021 1.0 .32
Jewish 0.026 0.063 1.7 .10
Married Currently 0.022 0.021 1.3 .20
Law in Family 0.008 0.006 0.54 .59
Age -0.046 -0.030 -2.8 .005
n of Attorneys Completing Second Year of Practice: 1742
Adjusted R[su'2'] of Model: .616
Source: AJD Data, supra note 249 (national sample and racial
oversample, unweighted). For definitions of key variables, see text. The
median annual income of the respondents is $ 80,000. </WPTABLE>
Both of these regressions provide a remarkably powerful account of
earnings variations among new lawyers. The R[su'2'] values for the two
models are [*465] .595 (Table 7.3) and .616 (Table 7.4) - astonishingly
high values for models of this kind. The effects of the various
independent variables are fascinating and worth discussion in a separate
paper. n263 The models are quite helpful in showing the effects of school
prestige on market outcomes. Recall that the lowest-prestige schools (Tier
8) are the "omitted" variable; the parameters for prestige are all
measured relative to this group. The parameter estimates in the two tables
measure the earnings effect of each variable in percentage terms. Thus,
alumni of Tier 1 schools, when one controls for the other factors in the
table, have earnings that are 29.6% (Table 7.3) to 40.4% (Table 7.4)
higher than alumni of the lowest-status schools. Alumni of Tier 2 schools
have an earnings gain of 16.1% to 26.6% relative to the lowest-status
schools, and so on. Strikingly, the prestige premium essentially
disappears by the time one reaches Tier 4 (in Table 7.3) or Tier 5 (in
Table 7.4). In other words, there is no measurable earnings dividend from
attending a more prestigious school in the bottom half of the law school
distribution.
The key question of interest is whether higher prestige offsets lower
grades. It is obvious in both models that law school GPA retains great
explanatory power - it has very high standardized coefficients and
t-statistics in both models. But what we would like to measure is the
actual grade-prestige trade-off. The parameter estimates in Table 7.4
provide a way of doing this. Standardized grades have a parameter value of
0.123; this means that a one-standard-deviation improvement in grades at a
school produces, on average, a 12.3% rise in earnings. Currently, black
students at a typical law school have a GPA that is about two standard
deviations lower than that of their white peers (see Figure 5.2). If
race-neutral admissions eliminated that gap, then typical black GPAs
should rise two standard deviations, translating to an earnings increase
of about 25%.
A black beneficiary of preferences at a Tier 1 school would be, at
worst, in a Tier 3 school without preferences (the average difference in
credentials between Tier 1 and Tier 3 schools is somewhat greater than the
black-white credentials gap). The earnings premium for Tier 1 students
compared with Tier 3 students is 21%. n264 This is not quite as large as
the 25% earnings penalty for lower grades. A typical beneficiary of
preferences at a Tier 2 school would probably attend a Tier 3 or 4 school
without preferences; the difference in Tier 2 and 4 earnings is 18.4% -
substantially less than the grade penalty. For the majority of black
students who are attending schools, under the current regime, in Tiers 4
and below, the prestige benefit is dwarfed by the grade penalty.
[*466] There are other ways to explore empirically the trade-off of
grades and prestige, and I have experimented with a number of them. My
consistent finding is that the effect of racial preferences in law school
admissions for black students upon their job market outcomes is
overwhelmingly negative for blacks in middle-and lower-ranked schools. It
is a smaller penalty for students at schools near the top of the status
hierarchy, and it is nearly a wash - perhaps even a small plus - for
students at top-ten schools. But nowhere do I find that the prestige
benefits of affirmative action dominate the costs stemming from lower GPA.
Moreover, the estimates reported here almost surely understate the
importance of GPA. This is because my "standardized GPA" variable has
three measurement weaknesses: it is based on self-reported data, the data
is grouped into eight broad "grade categories," and my efforts to
standardize GPA by school are based on only partial samples - sometimes as
few as ten students. Measurement error always has the effect of weakening
the explanatory power of a variable, since there is more "noise" in the
measure. Exact reports by schools of the final class rank of respondents
would probably add substantially to GPA's power in the regressions
reported here.
The AJD sample includes nearly four hundred blacks, and about two
hundred have sufficiently complete data to include in these analyses. The
grade-prestige patterns we see in the overall sample hold for the black
subsample as well. Indeed, we can see in particularly compelling form the
effects of higher GPA on blacks by examining actual outcomes (see Table
7.5). In the AJD sample, twenty-four black respondents reported law school
GPAs of 3.5 or higher. Of these, two worked in public interest law, three
worked in government, and nineteen worked in private firms. Of those in
private practice, most worked in large firms; the median salary of these
nineteen was $ 130,000. Among all twenty-four, there is no observable
difference in outcomes based on whether the lawyer graduated from NYU or
Northwestern, at the elite end, or such schools as Howard, Texas Southern,
or Santa Clara University, on the low-prestige end.
Sixty-one black respondents reported law school GPAs of 2.75 or lower.
Of these, seventeen worked in government, seven were in solo practice,
four were unemployed. Of the twenty-two working in private firms, nearly
all were in firms with under twenty lawyers; the median income of this
group was $ 55,000. There is an observable difference within this group
based on school prestige: the three highest-paid attorneys in this group
were all from top-twenty schools. However, the median for these elite
graduates in this grade range, working at private firms, was only $
67,000.
[*467]
Table 7.5: Summary of Statistics on Young Black Attorneys, 2002-2003
<WPTABLE>
Issue Low-GPA Students (< 2.75) High-GPA Students (> 3.5)
% Total in Private Firm 39% 75%
% in Firm with < 20 Attorneys 79% 17%
% in Firm with > 100 Attorneys 4% 61%
% Total Earning > $ 100,000 9% 67%
% Total Earning < $ 60,000 66% 17%
% Graduated from Tier 1-3 School* 33%** 35%***
Size of Group 61 24
Source: AJD Data, supra note 249 (national sample and racial oversample,
unweighted).
*Tiers 1-3 account for approximately the top fifty ABA-accredited law
schools.
**The n for low-GPA students on the tier question is forty-four, as those
reporting employment information without law school information were excluded.
***The n for high-GPA students on the tier question is twenty-three, for the
same reason as above. </WPTABLE>
Of course, when we discuss actual cases, we toss aside the elaborate
controls of the regressions. The comparisons are cruder. But they probably
do make the general point more forcefully: for most students, GPA is more
important than law school prestige. And affirmative action by law schools,
as we have seen, tends to lower the GPAs of black students systematically
and substantially.
* * *
One of the basic premises of affirmative action in law schools is that
for blacks to have reasonable prospects in the job market, they need the
extra "prestige" boost that preferential admissions provide. The
visibility of attending and graduating from a more upscale school, a
better brand name, will help overcome the intrinsic reluctance of
employers to give good jobs to black candidates.
Our analysis shows that the assumptions underlying this premise are
fundamentally flawed. n265 Even "prestige" employers apparently scan a
much [*468] broader range of law schools for strong students than has
commonly been thought. And the strong positive coefficient associated with
black lawyers in our regression shows that the legal market as a whole is
more willing, not less willing, to hire blacks into good jobs. Since
employers are already looking closely at lower-tier schools to find and
hire blacks with good grades, it seems obvious that they would do this
even more without preferential law school admissions. And the absence of
preferences would greatly increase the supply of blacks with high grades -
the students both elite and ordinary employers are obviously seeking out
most vigorously.
VIII. The Effects of Dropping or Modifying Racial Preferences
A reader persuaded by the evidence in prior Parts might concede that
affirmative action hurts the intended beneficiaries more as a class than
it helps them, but might insist that racial preferences are nonetheless
vital. "Without some consideration of race in law school admissions," the
argument goes, "the number of minority lawyers would drop precipitously,
and the number of black lawyers would fall back to levels unseen since the
Civil Rights Act of 1964." This is one of those arguments that is repeated
so often that it is taken as an indisputable article of faith throughout
most of legal academia. n266 In this Part, we will examine this claim, and
attempt to answer a central question: what effect would the elimination or
substantial modification of racial-preference policies have upon the
number of practicing black lawyers? As we shall see, the paradoxical but
straightforward answer is that the annual production of new black lawyers
would probably increase if racial preferences were abolished tomorrow.
[*469]
* * *
In its 2002 Supreme Court brief for Grutter, n267 the LSAC laid out the
familiar case for racial preferences:
For the 1990-91 applicant pool, as many as 90 percent of black
applicants would not have been admitted to any nationally-accredited law
school in the United States if grades and test scores were the sole
admissions criteria ... .
The real-world consequences of these statistics were illustrated by the
experience of law schools in Texas and California in the years immediately
after affirmative action was prohibited in those states. In 1997, the
first year Boalt Hall was legally barred from considering race, it
enrolled no African-Americans - not one - and only seven Latino
applicants. n268
Although arguments like this are often taken seriously, and probably
influenced Justice O'Connor's opinion in Grutter, they lose almost all
meaning when examined closely. The main difficulty is that these arguments
ignore the cascade effect discussed in Part III. Current racial
preferences in law school admissions essentially boost black applicants up
one or two tiers of prestige. A black applicant who would be admitted to a
fortieth-ranked school in a race-blind process is admitted to a
fifteenth-ranked school when race is considered. Black applicants
understand this and take it into account when they apply to schools - one
might apply to a few schools in the tenth-to-twentieth range of schools,
with perhaps a thirtieth-ranked school as a backup. If racial preferences
suddenly disappeared and black applicants continued to apply to the same
schools as they do now, then of course they would be rejected at a very
high rate. But the idea that the applicant in our example could not get
into any ABA-approved law school is, of course, ridiculous.
The case of Boalt's drop from twenty black matriculants in 1996 to
essentially zero in 1997, after the passage of Proposition 209, also tells
us very little about what would actually happen in the case of a national
ban on the use of racial preferences. Proposition 209 only applied to
public institutions in California. In observing the ban, Boalt's minimum
index threshold for blacks (expressed in the terms used in Parts II-VI of
this Article) would have risen from, say, 630 to 800, the level used for
whites and Asians. Boalt did in fact admit a number of blacks with high
index scores, but all of these candidates would have also had offers from
any top-five law school to which they applied, since none of those schools
was enjoined from considering race. Admitted blacks would have only
attended Boalt if it held some special attraction that outweighed
prestige. But in the first year of Proposition 209's implementation, that
was not likely - on the contrary, many blacks avoided the UC law schools
[*470] because of a perception that Proposition 209 would create an
atmosphere isolating and hostile to blacks. n269
To accurately assess the impact of eliminating racial preferences upon
blacks, we must take into account that the cascade effect forces
lower-tier schools to give racial preferences, not because there is any
shortage of qualified blacks eligible under the schools' general
standards, but because those blacks have been absorbed by higher-tier
institutions. As before, we can only see system-wide effects by
considering the system as a whole.
* * *
A logical method of looking at the systemic effect on black applicants of
eliminating racial preferences was outlined by Franklin Evans in a report
to the LSAC in 1977. n270 Evans divided whites who applied for admission
to at least one law school in 1976 into ninety-nine categories based on
their LSAT score and undergraduate GPA. He then determined what proportion
of the applicants in each category received at least one offer of
admission. The resulting grid of admission probabilities is, in effect,
rather similar to the admissions curve I used in Part II (Table 2.1) to
illustrate the relation between applicants' academic credentials and their
probability of admission - except that the Evans analysis created a "grand
curve" for all law schools in the aggregate. For example, his grid showed
that 98.5% of white applicants with an LSAT score between 700 and 749 and
an undergraduate GPA of 3.75 or higher received at least one offer of
admission, as did 89% of applicants with an LSAT score between 600 and 649
and an undergraduate GPA of 3.25 to 3.49, and 31.2% of those with an LSAT
score between 500 and 549 and an undergraduate GPA of 2.5 to 2.74. n271
Blacks with the same credentials had higher chances of admission in nearly
every cell of Evans's grid - but the point was that by applying the white
percentages to the black applicant pool, one could come up with an
estimate of how many blacks would be admitted to at least one law school
if blacks applied to schools in the same manner as whites and if law
schools evaluated them in the same way they evaluated whites. n272
[*471] Evans's results were sobering. In his simulation, the number of
admitted blacks fell 58%, from 1697 to 710, nearly as low as the levels
that prevailed in the mid-1960s. n273 This finding, and similar analyses
conducted in other fields, was prominently cited in the Bakke briefs.
The Evans method was replicated, using applicants to the class entering
law school in 1991, by Linda Wightman in her well-known 1997 article, The
Threat to Diversity in Legal Education. n274 In her grid simulation, n275
she found that race-blind admissions would produce a 52.5% drop in black
admissions - a result that seemed only slightly less dramatic than that
found by Evans. n276 However, the full picture had improved substantially
in some important ways. Between the 1976 and 1991 classes, the number of
blacks as a proportion of the total applicant pool had increased
substantially, from one black per fifteen white applicants in 1976 to one
black per ten white applicants in 1991. n277 The black-white credentials
gap had also narrowed somewhat, and the proportion of blacks admitted (in
the real world, not the simulation) had increased from 39% to 48% of all
applicants. Together, these changes meant that in Wightman's race-blind
simulation, the number of blacks receiving at least one offer of admission
in 1991 was 1631 - nearly the same number as actually received offers of
admission in 1976.
In an article published in September 2003, a few months after the
Supreme Court's decision in Grutter, Wightman repeated the grid simulation
once more, this time studying applicants to the class entering law school
in 2001. n278 The new grid analysis showed a remarkably improved result:
under a race-blind regime, as Table 8.1 shows, the number of blacks
receiving at least one offer of admission declined by only 14%.
What had produced such a dramatic change? It was due in part to a
further increase in the ratio of black applicants to white applicants: by
2001, there was [*472] 1 black applicant for every 6.5 white applicants.
n279 The credentials of blacks continued to improve slightly relative to
those of whites. Together, these effects meant that the number of blacks
with good credentials had increased sharply as a proportion of the pool.
From 1976 to 2001, the number of blacks in the applicant pool with
better-than-average LSAT scores and undergraduate GPAs greater than 3.0
increased from 317 to 1019. n280
Table 8.1: Changes in the Black Applicant Pool for Law School
Admissions, 1966-2001 (ABA-Accredited Schools Only)
<WPTABLE>
Year Total Black Applicants Blacks Actually Admitted Blacks Admitted
Under
Race-Blind Simulations Blacks Admitted Under Race-Blind Simulations, as
Percent of White Admissions* Black-White Gap in Mean LSAT**
1966 N/A 400 (est.) 400 (est.) 1.2% N/A
1976 4299 1697 710 1.8% 1.61
1991 7083 3435 1631 3.9% 1.34
2001 7404 3706 3182 8.5% 1.18
Sources: Evans, supra note 46, at 599 tbl.12, 602 tbl.15 (1976 data);
Wightman, Threat to Diversity, supra note 274, at 22 tbl.5 (1991 data);
Wightman, Race-Blindness, supra note 278, at 234 tbl.1, 240 tbl.5 (2001
data); Linda F. Wightman, Analysis of LSAT Performance and Patterns of
Application (LSAC Research Report 94-02, 1994) (1991 LSAT data); author's
own calculations from Law Sch. Admission Council, LSAC National
Statistical Report, 1997-98 Through 2001-2002, at E13, F13. (2003)
(presenting 2001 mean LSAT data). *The small improvement between 1966
and 1976 in the column concerning black admissions, under race-blind
simulations, as a percentage of white admissions is due to the dramatic
increase in white applicants (and the quality of applicants) during that
decade. Black-white gap is the number of standard deviations separating
black and white median LSAT scores. </WPTABLE>
Because of the cascade effect and improvements in both the relative size
and relative strength of the black applicant pool, the consequences of
race blindness on black admissions to law school have changed dramatically
over the past generation. But it is just as important to consider how race
blindness would shape the fortunes of blacks once they enter law school.
If it is true, as I have argued in Parts V and VI, that large racial
preferences place blacks in [*473] schools where they will generally
perform badly, and that this leads to both lower graduation rates and
lower bar passage rates for blacks than for academically similar whites,
then race-blind policies will moderately increase black graduation rates
and will dramatically improve their performance on the bar.
How can we actually estimate these effects? First, we estimate the
academic index distribution of blacks who would have been qualified for
law school under race-blind policies. Second, we use the analyses
summarized in Parts V and VI to measure the difference between white and
black rates in attrition and bar passage at each academic index level
(recall that differences in school placement appeared to be the only
factor that could explain the differences in black and white performance,
graduation, and bar passage rates for applicants with otherwise identical
academic credentials). Combining these two sets of data, we can estimate a
weighted aggregate effect on black matriculants of race-blind policies.
The results are summarized in Table 8.2.
Table 8.2: Estimating the Effects of Eliminating Racial Preferences on
Black Admissions to Law School - 2001 Matriculants
<WPTABLE>
Stage of the System Number of Blacks in the System Under Current Policies
Number of Blacks in the System with No Racial Preferences % Change Caused by
Moving to No Preferences
Applicants 7404 7404
Admittees 3706 3182 -14.1%
Matriculants 3474 2983 -14.1%
Graduates (2004 or Later) 2802 2580 -8.1%
Graduates Taking the Bar 2552 2384 -6.8%
Passing the Bar, First Time 1567 1896 +20.1%
Passing the Bar, Eventual 1981 2150 +7.9%
Sources: Wightman, Race-Blindness, supra note 278, at 243 tbl.7 (first two
rows in above table); statistics compiled by the author from the LSAC-BPS data
(last four rows in above table). n281 </WPTABLE>
[*474] The analysis produces a result that will strike many people as
intuitively implausible: the number of black lawyers produced by American
law schools each year and subsequently passing the bar would probably
increase if those schools collectively stopped using racial preferences.
Indeed, the absolute number of black law graduates passing the bar on
their first attempt - an achievement important both for a lawyer's
self-esteem and for success in the legal market - would be much larger
under a race-blind regime than under the current system of preferences.
There are two simple reasons for this surprising result. First, the main
effect of contemporary racial preferences by law schools is to reshuffle
blacks along the distribution of schools; six out of every seven blacks
currently in law school would have qualified for admission at an
ABA-accredited school under a race-blind system. Second, the elimination
of racial preferences would put blacks into schools where they were
perfectly competitive with all other students - and that would lead to
dramatically higher performance in law school and on the bar. Black
students' grades, graduation rates, and bar passage rates would all
converge toward white students' rates. The overall rate of blacks
graduating from law school and passing the bar on their first attempt
would rise from the 45% measured by the LSAC-BPS to somewhere between 64%
and 70%. n282
Conversely, the black students excluded by a switch to a race-blind
system have such weak academic credentials that they add only a
comparative handful of attorneys to total national production. Blacks with
academic indices of 480 or lower would make up the bulk of those excluded
under a race-blind system. In the LSAC-BPS study, only 65% of black
students with these scores graduated from law school, and only 19% passed
the bar on their first attempt. n283 For the same reasons, this group is,
on the whole, most injured by the system of racial preferences. Admitted
to the lowest-ranking law schools as part of law schools' effort to
compensate for the cascade effect, these students invest years of their
lives in an enterprise that usually does not allow them to enter the legal
profession - or, if it does, only with the weakest possible
qualifications.
The real world is a very different and more promising place than the
world most legal educators have created in their minds to justify
affirmative action. It is true, as defenders of preferences have long
maintained, that a large majority of the black students at any given law
school today depend on racial preferences to be there. But this has led to
the unjustified delusion that blacks, system-wide, are equally dependent
on racial preferences. In the law school system as a whole, racial
preferences no longer operate as a lifeline vital to [*475] preserve the
tenuous foothold of blacks in the legal profession. Quite the contrary:
racial preferences have the systematic effect of corroding black
achievement and reducing the number of black lawyers.
* * *
Still, if the reader suspects that the story I just told sounds too good
to be true, she is at least partly right. There are a few assumptions in
my argument that should be considered more closely.
Most seriously, my simulation uses two different sources of data. The
top two lines of Table 8.2 come from Wightman's analysis of law students
matriculating in the fall of 2001. But the other analyses in that table
are based on the LSAC-BPS data, which studied and followed the cohort
beginning law school in 1991. This is not ideal, and could lead to an
overstatement of black-white differences. After all, as Table 8.1
suggests, one of the reasons more blacks would be admitted under
Wightman's 2001 simulation was some narrowing of the black-white gap. If
this gap is narrowing, one would expect the much higher attrition rates of
blacks in law school and on the bar should moderate as well.
One could only fully answer this question by replicating the LSAC-BPS
study with current students - something that is not likely to happen soon.
Instead, I can think of a few types of indirect evidence that bear on this
question. First, the 2002 and 2003 admissions data that I have secured
from seven public law schools n284 suggests that the black-white
credentials gap has indeed narrowed, from about 170 points in the early
1990s to perhaps 130 or 140 points now. This is consistent with the
narrowing of the black-white LSAT gap and should have a moderating effect
on black attrition. And, indeed, ABA data on minority attrition rates
shows a slight decrease in black attrition between the first and third
years of law school, from 18.9% in 1991-1993 to 18.4% in 1999-2001. n285
This is a small change, but in the right direction. However, during the
same period, average bar passage rates across American jurisdictions
dropped as many states raised the passing threshold; nationally, the
proportion of first-time takers who passed the bar fell from 82.3% in
1994-1995 to 74.7% in 2002-2003. n286 Increases in bar difficulty
disparately affect blacks, because the high black failure rate on the bar
implies that there are a disproportionately large number of blacks who
barely pass. It is hard to document how seriously this change has affected
blacks because very few [*476] states publish racial statistics on bar
passage rates, but we can get some idea from a couple of sources. In
California (one of the few states that provides bar exam results by race),
the first-time bar passage rate for whites fell from 79.3% on the July
1997 bar exam to 70.0% on the July 2003 exam. The first-time pass rate for
blacks fell from 47.5% to 32.8% over the same two exams - a much larger
absolute and proportionate decline. n287 A corroborating piece of evidence
comes from the AJD study, which asked its sample of certified lawyers
whether they had failed the bar at least once before passing in the year
2000. Twenty-two percent of the blacks in this national sample said they
had failed the bar at least once. n288 In the LSAC-BPS study, only 20% of
those blacks who ultimately became lawyers had an experience of failing
the bar. n289 This suggests that the bar posed a slightly higher hurdle
for a national sample of black law graduates in 2000 than it did in 1994.
In short, the data suggests that over the past decade blacks have
gained on whites in law school credentials; probably the gap in law school
performance and law school attrition has narrowed. But the growing
difficulty of the bar in many states has probably more than wiped out
those gains, so that the overall penalties of affirmative action are still
as great for blacks, and quite possibly greater, than they were at the
time of the LSAC-BPS study. Considering all of this (admittedly imperfect)
data in light of Table 8.2, I can see no reason for revising downward the
table's estimate that the production of black lawyers would rise
significantly in a world without racial preferences.
Table 8.2 is premised on two other significant assumptions. First, I
assume that blacks will apply to law school in the same numbers without
the benefit of affirmative action, and that they will accept admission to
lower-ranked law schools than they currently enter instead of simply
switching to other fields. This is, of course, debatable. A college
graduate attracted to the law but not desperate to have a legal career
might have second thoughts if she faced the prospect of attending a
fortieth-ranked school instead of one ranked fourteenth. Other careers and
other types of graduate study might loom more attractively, particularly
if affirmative action still operated in some of those competing spheres.
On the other hand, there are reasons to think the number of blacks
applying to law school in a race-blind regime would increase rather than
decline. Surely there is some awareness among prospective black students
of the daunting challenge bar exams pose for blacks; surely this
discourages some people from applying. In a world where 74% - rather than
45% - of black law students [*477] graduate and pass the bar on their
first attempt, law school might be a far more appealing prospect.
Moreover, the findings of this Article and a growing body of other
research are chipping away at the conventional wisdom that elite schools
are the only path to coveted jobs. As those prejudices weaken, blacks may
be less perturbed by the prospect of attending a less elite school. Blacks
might also be highly attracted to a university environment in which they
are not individually or collectively assumed to have weak credentials.
A second unknown in a race-blind system is the operation and effect of
financial aid awards. Anecdotal evidence suggests that many law schools
try to minimize the size of their internal black-white gap by competing
vigorously for black candidates, both by "wining and dining" strong
prospects and by offering those prospects generous financial aid. More
systematic data from the AJD study shows that blacks in the 2000 cohort of
graduates received about three times as much in grants and aid from their
law schools as did students of other races. n290 It is reasonable to
suppose that in a race-blind system, race-based financial aid would
decline (though I would argue that recruiting more blacks into the system
as a whole remains a valid and important goal). It is certainly possible
that a decline in aid for blacks, if it occurs, could discourage some
black applicants. On the other hand, Hispanic law students currently
receive far less scholarship aid than blacks (even though Hispanic law
students tend to come from less affluent backgrounds) but apply to law
school in very similar proportions to their numbers among college
graduates. n291
There are, in short, many uncertainties built into any prediction about
how a change to race-blind admissions would change the production of black
lawyers. There are a couple of conclusions that do seem to me very
defensible (and which are the real point of my simulations and attendant
discussion). First, the oft-repeated claim that the number of black
lawyers would be decimated by the elimination of racial preferences is
simply untrue. One can make an argument that the number might decline, but
the balance of evidence suggests an increase is more likely. Second, what
will change dramatically is the academic preparation of those blacks who
become attorneys. Under current conditions, over a fifth of practicing
black lawyers have failed the bar at least once, and, given the high
failure rate generally, it is a statistical certainty that many blacks who
pass the bar pass by very small margins. Sharply raising the first-time
pass rate for blacks would be accompanied by a similar rise in the [*478]
scores of those who do pass. If we believe that bar exams measure anything
relevant to good lawyering, this change would be a very good thing.
Conclusion
I began this Article with a simple question: does affirmative action, as
practiced by American law schools, clearly help blacks more than it hurts
them? Although I started this project with serious doubts about some
things law schools were doing, the answer to the big question turned out
to be far less ambiguous than I would have imagined possible. Law school
admissions preferences impose enormous costs on blacks and create
relatively minor benefits. By looking at law schools systemically, we can
see patterns and larger consequences that would be invisible or
speculative if we looked at any one school or group of schools in
isolation. As it is, the key features of the current system seem very
clear.
For blacks, there are two primary benefits of affirmative action.
First, black students widely have the opportunity to attend significantly
more elite schools than do white peers with similar credentials.
Preferences boost students up the hierarchy of 184 schools by 20 to 50
steps, sometimes more; a very large majority of black students accept
these opportunities and attend schools that used preferences to admit
them. Second, the system as a whole leads to the admission of an
additional five or six hundred black students - about one-seventh of the
annual total - who would not otherwise be admitted to any accredited
school. Cutting against these benefits are six major costs of the current
system of racial preferences.
1. Black students as a whole are at a substantial academic disadvantage
when they attend schools that used preferences to admit them. n292 As a
consequence, they perform poorly as a group throughout law school. The
median GPA of all black students at the end of the first year of law
school lies roughly at the sixth percentile of the white grade
distribution. Put differently, close to half of black students end up in
the bottom tenth of their classes. This performance gap is entirely
attributable to preferences; none of it seems to be attributable to race
per se.
2. The clustering of black students near the bottom of the grade
distribution produces substantially higher attrition rates. Entering black
law students are 135% more likely than white students to not get a law
degree. Part of this is the effect of low grades on academically strong
black students who [*479] would have easily graduated from less
competitive schools; part of this is the effect of high attrition among
the five or six hundred academically weak black students admitted to the
low-prestige law schools. But again, virtually all of the black-white gap
seems attributable to preferences; virtually none of it seems attributable
to race or to any correlate of race (such as income).
3. Generally low grades among blacks have even larger effects on bar
performance. Blacks are nearly six times as likely as whites to not pass
state bar exams after multiple attempts. The difference, again, is mostly
attributable to preferences. Half of the black-white bar passage gap is
traceable to the effects of blacks with good credentials getting low
grades at higher-prestige schools; nearly a quarter is due to low-prestige
schools admitting blacks with lower credentials than almost any of the
other students in the system.
4. When blacks pass the bar and enter the job market, they encounter a
generally positive climate. Blacks earn 6% to 9% more early in their
careers than do whites seeking similar jobs with similar credentials,
presumably because many employers (including government employers) pursue
moderate racial preferences in hiring. Nonetheless, affirmative action by
schools hurts blacks in the job market more than it helps. The data in
Part VII suggests that employers weigh law school grades far more heavily
in evaluating job candidates than most legal academics have assumed. Law
school racial preferences give blacks fancier degrees, but also
systematically lower their GPAs. For at least two-thirds of black law
graduates, the harm preferences do to a student's grades greatly outweighs
the benefit derived from the more prestigious degree. Only black students
graduating from the top ten law schools even arguably derive net benefits
from this trade-off. Racial preferences therefore have not been an
indispensable part of credentialing blacks for the job market; overall,
they clearly end up shutting more doors than they open.
5. In 2001, about 86% of all black students who attended accredited
American law schools would have been eligible for admission at one or more
law schools in the total absence of racial preferences. System-wide,
racial preferences expand the pool of blacks in law school by only 14%.
These 14% - about five to six hundred students admitted to low-prestige
schools - have very low academic credentials and face long odds against
becoming lawyers. Only a fifth of this group finishes law school and
passes the bar on their first attempt; fewer than a third become lawyers
after multiple attempts at taking the bar.
6. When one takes into account the corrosive effects of racial
preferences on the chances of all black law students to graduate and pass
the bar, these preferences probably tend, system-wide, to shrink rather
than expand the total number of new black lawyers each year. If all
preferences were abolished, the data in Part VIII suggests that the number
of black attorneys emerging from the class of 2004 would be 7% larger than
it is. The number of black attorneys passing the bar on their first
attempt would be 20% larger. These numbers are simply estimates, resting
on the assumptions I have detailed; but even if the [*480] attrition
effects of the current system were much smaller than I have estimated, we
would still be producing approximately the same number - and much better
trained - black attorneys under a race-blind system.
These are simply the direct, easily quantifiable effects of law school
racial preferences. I have said nothing about the stigma of preferences,
about the effect of low grades on student esteem, about the life
consequences for hundreds of young blacks each year who invest years of
effort and thousands in expense but never become lawyers, or about the
loss to communities that could be served by black lawyers but are not
because racial preferences have had the effect in recent years of reducing
our annual output of qualified black attorneys.
There are many ironies in this state of affairs, but perhaps the
central irony is this: Law schools adopted racial preferences because,
soon after they began to seek actively in the 1960s to increase black
enrollment, they confronted the black-white credentials gap. The schools
conceived of preferential policies to overcome the gap, hoping that by
ignoring the differences in credentials they could perhaps make the gap go
away. But these very policies have the effect of widening the credentials
disadvantage facing individual black students rather than narrowing it.
The effect of preferences on black graduation rates is similar to the
effect of subtracting 60-odd points from the academic index of every black
matriculant. The effect of preferences on black bar passage rates is
similar to the effect of subtracting 120 points. Large-scale preferences
exacerbate the problems they try, cosmetically, to cover up.
What can be said about the conduct of law schools in this system?
Looking back over the years of the rise and development of the modern
system of racial preferences, I think it is fair to say that there was a
good deal of honor in what law schools did during the first ten years of
this era. From the late 1960s through the time of Bakke, law schools shook
off their complacency as overwhelmingly white bastions of prestige. They
critically examined old procedures, experimented with new admissions
methods, and sponsored summer programs like CLEO that worked hard to
broaden and deepen the field of potential minority students. Reports from
that period are infused with a degree of honesty and openness. And these
policies did transform the image of law school and increased the interest
of young minority college students in making law school a goal.
The era since Bakke has been quite different. Schools have felt hemmed
in. The cascade effect of preferences exercised by law schools as a whole
meant that any individual school had to choose between either having only
a handful of black students or preserving racially segregated admissions
procedures. Pressures from students and faculty, and fears of appearing
racist, made this seem to be no choice at all. Bakke provided a convenient
veil of diversity that could be draped over policies that were
substantively hard to distinguish from those the Supreme Court had struck
down. Viewing Powell's holding as hypocritical, law school deans joined in
the hypocrisy. For most, this probably seemed a small price to pay in the
cause of an apparently greater good.
[*481] Unfortunately, once law schools had adopted the pretense that
students of all races at any institution had essentially the same
qualifications, it was difficult for anyone to pursue serious research
into the effects of affirmative action, or even for faculties to engage in
honest discussion. The entire topic has been largely given over to
myth-making and anecdote for an entire generation. It should perhaps not
be so surprising, then, that a close look at the emperor today shows such
an unflattering nakedness.
* * *
What are the implications of this analysis for the law of affirmative
action? There are three. First, the distinction drawn by Justice O'Connor
between the admissions systems of the University of Michigan's law school
and its undergraduate college is a false one. It is impossible to explain
the admissions outcomes at the law school, or at any other law school we
have examined, unless the schools are either adding points to the academic
indices of blacks or separating admissions decisions into racially
segregated pools.
Second, Justice O'Connor's decision in Grutter is wrong in a broader
sense. Her opinion draws heavily on amicus briefs that paint a glowing
picture of the benefits of affirmative action and its indispensability as
a vehicle of mobility by blacks into the legal profession. The premise
accepted by O'Connor is that racial preferences are indispensable to keep
a reasonable number of blacks entering the law and reaching its highest
ranks - a goal which is in turn indispensable to a legitimate and moral
social system. The analysis in this Article demonstrates that this premise
is wrong. Racial preferences in law schools, at least as applied to
blacks, work against all of the goals that O 'Connor held to be important.
The conventional wisdom about these preferences is invalid.
But a third legal implication of this work is the most important of
all. All of the Supreme Court's decisions about affirmative action in
higher education presume that the discrimination involved is fundamentally
benign. It is tolerable only because it operates on behalf of a
politically vulnerable minority - that is, blacks. A preferences program
that operated on behalf of whites would be unconstitutional beyond
question.
Yet if the findings in this Article are correct, blacks are the victims
of law school programs of affirmative action, not the beneficiaries. The
programs set blacks up for failure in school, aggravate attrition rates,
turn the bar exam into a major hurdle, disadvantage most blacks in the job
market, and depress the overall production of black lawyers. Whites, in
contrast, arguably benefit from preferences in a number of ways. Whites
have higher grades because blacks and other affirmative action
beneficiaries fill most of the lower ranks; whites are the most obvious
beneficiaries of the diversity produced by affirmative action programs; it
is even plausible to argue that bar passage rates are kept high to avoid
embarrassingly high failure rates by minority exam-takers. The [*482] next
legal challenge to affirmative action practices by law schools could very
plausibly be led by black plaintiffs who were admitted, spent years and
thousands of dollars on their educations, and then never passed the bar
and never became lawyers - all because of the misleading double standards
used by law schools to admit them, and the schools' failure to disclose to
them the uniquely long odds against their becoming lawyers. And these
plaintiffs, unlike the plaintiffs in Hopwood and Gratz, could be entitled
to more than nominal damages.
* * *
What can law schools do to escape this imbroglio? It might seem that
there is very little that individual law professors or even law school
deans can do, by themselves. As I have suggested, the cascade effect seems
to give individual schools little control over their own destinies. This
is true so far as it goes, but I believe there are important steps that
individual professors and individual schools can take.
First and foremost, we should begin to be honest about what we are
doing. We can disclose how admissions works at our individual schools. We
can admit that our schools rely heavily on numerical indices of student
credentials, that most of the white matriculants are chosen from a fairly
narrow band of credentials, and that there is a big gap between white and
black index scores. We can admit that black applicants are treated
differently as a group, and that our schools' practices look more like the
system described by Justice O'Connor in Gratz than the "individualized
assessment" of Grutter. We can disclose to black admittees that, while our
schools value them enormously and will work to make them succeed, there is
some reason to believe that attending a school where a student 's
credentials are weaker than those of most classmates puts the student at
greater risk of academic failure.
More specifically, each law school that takes race into account in its
admissions should provide to all applicants a document that lists: (1) the
median academic index (or test scores and undergraduate grades, if no
index is used) of admitted and enrolled applicants, by race; (2) the
median class rank of each racial or ethnic group whose identity is a
factor in admissions; and (3) the pass rate of recent graduates from each
group on the bar of the school's home state. This information would of
course greatly aid applicants (particularly those who receive preferences)
in evaluating the potential costs of attending a given school.
Once some honest conversation about affirmative action practices is
underway, it will be much easier to talk about constructive solutions. The
most obvious solution is for schools to simply stop using racial
preferences. As we have seen, this is not an unthinkable armageddon; by
every means I have been able to quantify, blacks as a whole would be
unambiguously better off in a system without any racial preferences at all
than they are under the current [*483] regime. The most obvious
disadvantage of such a solution is that the most elite law schools would
have very few black students - probably in the range of 1% to 2% of
overall student bodies. Many observers would view this as an enormous
cost, for at least two reasons: the diversity at elite schools is thought
to be critical in shaping the attitudes of future national leaders, and
the sheer numbers of blacks at top schools are thought to be a vital
source for future black judges, public intellectuals, and political
leaders. I have not explored these specific issues here, and I agree that
they merit serious consideration.
There is an intermediate step that is at least worth considering as a
thought experiment. Consider the workings of a system in which law schools
only use admissions preferences for blacks to the extent necessary to
prevent black enrollments from falling below 4% of total enrollment. n293
Obviously, the preference given to each enrolled student would be smaller.
Academic gaps between whites and blacks would thus be narrower at the top.
But the real benefit of this approach would be a dampening of the cascade
effect. If the top ten schools enroll 150 blacks instead of 300, then the
next tier of schools (say, those ranked eleven through twenty) would need
to exercise even smaller preferences to reach the 4% target. At some point
fairly high in the law school spectrum, no preference at all would be
needed to achieve a 4% goal, and from that point on the proportion of
blacks (all admitted on essentially race-blind systems) would be greater
than 4%.
This approach would have three significant advantages. First, it would
maintain a significant black presence at all schools. Second, it would
dramatically narrow the average black-white gap across all schools. And
third, the most significant remaining black-white gaps (still much smaller
than present-day gaps) would be at the most elite schools, where the data
suggest the harmful side effects of a gap are minimized and the positive
effects of prestige for blacks are maximized. There are obvious practical
problems - the patent illegality of avowed racial targets, the problem of
coordination among competing schools - but this proposed solution does
illustrate the possibility of "middle ways" that can capture some putative
benefits of the current system while greatly mitigating its harms.
If candid dialogue can begin within the law school world on the subject
of affirmative action, it will have positive effects throughout society.
We could explore more honestly and systematically the meaning of
diversity, the current extraordinary socioeconomic eliteness of law
students of all races, the real potential to identify other indicators of
academic promise, and the extent to which one can target for admission
students who will establish public-service practices in low-and
moderate-income communities. The battle for racial inclusion has been
fought and largely won. Let us come out of the trenches, look around, take
stock, and move forward to challenge injustice anew.
**
FOOTNOTES:
n1. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)
(plurality opinion).
n2. William G. Bowen & Derek Bok, The Shape of the River: Long-Term
Consequences of Considering Race in College and University Admissions
(1998); Richard O. Lempert et al., Michigan's Minority Graduates in
Practice: The River Runs Through Law School, 25 Law & Soc. Inquiry 395
(2000). Bowen and Bok do, briefly, consider the question of how students
would fare without affirmative action, but their analysis is so
superficial as to provide little helpful insight on this question;
subsequent work has thrown even their modest conclusions into question.
n3. There are exceptions. California still allows prospective lawyers
to learn the law in a law office and bypass law school; Wisconsin allows
graduates of some schools to automatically enter its bar.
n4. Kristine S. Knaplund & Richard H. Sander, The Art and Science of
Academic Support, 45 J. Legal Educ. 157 (1995).
n5. I explored this and other matters related to law school
socioeconomic diversity in Richard H. Sander, Experimenting with
Class-Based Affirmative Action, 47 J. Legal Educ. 472 (1997).
n6. This is especially true in the absence of compelling evidence that
whites are substantially harmed. Careful readers will realize that the
evidence in this Article suggests that the material harms to whites from
affirmative action in law schools are comparatively slight. Indeed, the
effects on whites are in many ways a mirror image of the effects on blacks
(though more muted by relative numbers), and thus whites probably have
higher grades, graduation rates, and bar passage rates than they would in
a system totally lacking racial preferences.
n7. These costs include not only the national competition between
Democrats and Republicans, but interracial goodwill, the belief held by
whites that they are "already" making sufficient sacrifices for the cause
of racial justice, and the credibility of institutions that are often
trapped in deceptions by their own policies.
n8. See infra Table 8.2 and accompanying text (showing how race-blind
admissions would produce an 8% increase in the number of blacks passing
the bar each year, even though the legal education system would
matriculate 14% fewer black students). Like any simulation, my analysis is
subject to debatable assumptions. Two fundamental points are beyond doubt,
however: (a) because of the effect of preferences, see infra Part III, a
general abandonment of racial preferences would have a relatively modest
effect on total black admissions; and (b) current preferences cause blacks
to be clustered academically in the bottom of their law school classes,
see infra Tables 5.1, 5.3, 5.4, greatly increasing black attrition in law
school and the bar. These effects combined strongly suggest there would be
a net increase in black lawyers under a race-blind system.
n9. Grutter v. Bollinger, 539 U.S. 306 (2003).
n10. Am. Bar Ass'n, Minority Enrollment 1971-2002, at
http://www.abanet.org/legaled/statistics/minstats.html (last visited Nov.
3, 2004) [hereinafter Am. Bar Ass'n, Minority Enrollment 1971-2002];
Memorandum from David Rosenlieb, Data Specialist, Section of Legal
Education and Admission to the Bar, American Bar Association, to Deans of
ABA-Approved Law Schools, Corrected Fall 2002 Enrollment Statistics (May
16, 2003), at
http://www.abanet.org/legaled/statistics/Fall%202002%20Enrollment.pdf
(last visited Nov. 22, 2004) [hereinafter Rosenlieb Memorandum].
n11. U.S. Census Bureau, 2003 Statistical Abstract of the United States
191 tbl.299 (2003).
n12. In 2001, blacks made up 14.5% of U.S. residents between the ages
of twenty and twenty-four. U.S. CENSUS BUREAU, 2002 Statistical Abstract
of the United States 16 tbl.14 (2002).
n13. According to the 2002 Statistical Abstract of the United States,
blacks secured 8.2% of master's degrees granted in 2001, along with 4.9%
of doctoral degrees and 6.8% of "first professional" degrees (including
degrees in law, medicine, theology, and dentistry). Id. at 191 tbl.299.
According to the American Bar Association's website, blacks earned 7% of
all law degrees in that year. Am. Bar Ass'n, J.D. Enrollment and J.D.
Degrees Awarded (Total/Women/Minorities), at
http://www.abanet.org/legaled/statistics/jd.html (last visited Nov. 22,
2004); Am. Bar Ass'n, Minority Degrees Awarded (by Ethnic Groups
1980-2002), at http://www.abanet.org/legaled/statistics/mindegrees.html
(last visited Nov. 22, 2004) [hereinafter Am. Bar Ass'n, Minority Degrees
Awarded].
n14. Harry E. Groves, Report on the Minority Groups Project, 1965 Ass'n
Am. L. Schs. Proc., Part One 171, 172. I infer these numbers from the fact
that total black enrollment at ABA-approved law schools for 1964-1965 was
701, with 267 attending the six historically black law schools and 165 at
Howard University Law School alone. Because of prevalently high dropout
rates at the time, over forty percent of all law students were first-year
students. At the time, Howard was by far the largest and most respected of
the black law schools. The other law schools were institutions established
by southern states to maintain segregated education; these schools had
tiny enrollments.
n15. Id.
n16. Blacks accounted for about 1.1% of all American lawyers in 1960.
U.S. BUREAU OF THE CENSUS, U.S. CENSUS OF POPULATION: 1960, SUBJECT
REPORTS OCCUPATIONAL ChARACTERISTICS 21 tbl.3 (1963).
n17. For example, Asians, who have generally been overrepresented in
higher education relative to their numbers, made up about 0.7% of the U.S.
population in 1970, but only 0.4% of third-year students in law schools in
1971-1972. By 2000, Asians made up 3.8% of the U.S. population but 6.7% of
first-year law students. Frank Hobbs & Nicole Stoops, U.S. Bureau of the
Census, Demographic Trends in the 20th Century 77 fig.3-4 (2002); Am. Bar
Ass'n, Legal Education and Bar Admissions Statistics, 1963-2002, at
http://www.abanet.org/legaled/statistics/le_bastats.html (last visited
Nov. 22, 2004); Am. Bar Ass'n, Minority Enrollment 1971-2002, supra note
10.
n18. Comparison data for other types of graduate education can be found
in Frank Brown et al., Minority Enrollment and Representation in
Institutions of Higher Education (1974). In 1960, blacks made up 2.9% of
all graduate school enrollment in the United States. Id. at 186. The
percentage in 1970 was 3.1%. Id.
n19. Some of the early litigation against "separate but equal" regimes
focused on these southern law schools. See Sweatt v. Painter, 339 U.S. 629
(1950); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). On black
exclusion in the South, see also Richard L. Abel, American Lawyers 100
(1989).
n20. Examples include Charles Hamilton Houston (the first black
editorial member of the Harvard Law Review, in 1921), William Henry Hastie
(another black Harvard Law Review member, who became a federal judge in
1937), and Dr. Sadie Tanner Mossell Alexander (a black economist who
served on the Pennsylvania Law Review). See Many of the Nation's Most
Prestigious Law Reviews Have Lily-White Editorial Boards, 19 J. Blacks
Higher Educ. 44, 55 (1998).
n21. See generally Brown et al., supra note 18 (comparing minority
enrollment data for different types of graduate education).
n22. Charles C. Davidson et al., Report of the Committee on Racial
Discrimination in Law Schools, 1962 Ass'n Am. L. Schs. Proc. 195, 195.
n23. Benjamin F. Boyer et al., Report of the Committee on Racial
Discrimination: Problem of Negro Applicants, 1964 Ass'n Am. L. Schs.
Proc., Part One 159, 160-61.
n24. The fifty-percent figure is the median ten-year attrition rate
calculated from the responses of fifty-four law schools surveyed by the
AALS in 1964-1965. See Groves, supra note 14, at 172-73.
n25. See generally Earl L. Carl, The Shortage of Negro Lawyers:
Pluralistic Legal Education and Legal Services for the Poor, 20 J. Legal
Educ. 21 (1967-1968) (arguing that blacks viewed law as "white man's
business" and had little awareness of the existence of a black bar); Earl
L. Carl & Kenneth R. Callahan, Negroes and the Law, 17 J. LEGAL EDUC. 250
(1964-1965) (claiming that blacks felt general mistrust of the law as an
instrument of whites); Groves, supra note 14, at 173-74 (presenting survey
of law school deans asked to explain low black enrollment).
n26. Not atypically, it was a program started by Harvard (which
beginning in 1965 brought black college students to Cambridge for a summer
session) that secured the most publicity. See Robert M. O'Neil,
Preferential Admissions: Equalizing Access to Legal Education, 1970 U.
Tol. L. Rev. 281, 301; see also Louis A. Toepfer, Harvard's Special Summer
Program, 18 J. Legal Educ. 443 (1966).
n27. Sixty-nine law schools reported the LSAT distributions of their
students to both the 1969 and 1980 Prelaw Handbooks issued by the American
Association of Law Schools. The proportion of these schools with median
LSAT scores higher than 600 rose from 10.2% in 1969 to 71% in 1980. Ass'n
of Am. Law Schs. & Law Sch. Admission Test Council, Law Study and Practice
in the United States, 1969-70 Pre-Law Handbook B(2)-3, tbl.X (1970); Ass'n
of Am. Law Schs. & Law Sch. Admission Test Council, 1980-82 Pre-Law
Handbook: Official Guide to ABA-Approved Law Schools 45 (1980). It should
be noted that the methodologies used to arrive at the cited figures were
slightly different, so the numbers may not exactly correlate.
n28. Boyer et al., supra note 23, at 159-60.
n29. One notable exception was Emory University School of Law. In 1965,
Emory instituted a summer program for interested black students; any
student who completed the program was guaranteed a seat in the first-year
class. The program was quite similar to the much-larger-scale Council on
Legal Educational Opportunity (CLEO) program begun a few years later.
Hardy Dillard et al., Report of the Advisory Committee for the Minority
Groups Study, 1967 Ass'n Am. Law Schs. Proc., Part One 160, 166-67.
n30. The Kerner Commission, charged by President Lyndon Johnson with
investigating the causes of the rioting that had rocked many central
cities in the mid-1960s, produced a surprisingly harsh assessment of
continuing racism in American society and institutions.
n31. The first federally mandated affirmative action program in the
employment arena - the so-called "Philadelphia Plan," affecting
construction jobs in federally funded projects - began soon afterwards, in
the fall of 1969.
n32. O'Neil, supra note 26, at 306-07.
n33. See Groves, supra note 14, at 172.
n34. An ABA analysis of black enrollments at law schools in 1969-1970
makes plain which schools had launched affirmative action programs and
which had not. Considering students in all three years of law school,
Columbia in that term was 6.3% black while Fordham was 1% black, UCLA was
6.9% black while Stanford was 2% black, and Yale was 8.5% black while the
University of Connecticut was 1.7% black. Almost no southern school during
that term was more than 2% black. John Atwood et al., Survey of Black Law
Student Enrollment, 16 Student L.J. 18, 36, 37 (1971). Black enrollments
today still vary a good deal, but there are few regional disparities
(except in the Plains and Rocky Mountain states, which have very small
black populations) and virtually all elite schools not operating under
legal constraints have significant black enrollments. See generally Law
Sch. Admission Council & Am. Bar Ass'n, The ABA-LSAC Official Guide to
ABA-Approved Law Schools: 2004 Edition (2003) (reporting racial
compositions for individual law schools) [hereinafter 2004 Official Guide
to ABA-Approved Law Schools].
n35. The ABA website reports 2066 first-year blacks in law schools in
1973-1974, see Am. Bar Ass'n, Minority Enrollment 1971-2002, supra note
10. Historically black law schools had total minority enrollments of 946
that year, and it is plausible that about 350 of these were first-year
students. Am. Bar Ass'n, Law Schools and Bar Admission Requirements: A
Review of Legal Education in the United States - Fall 1973, at 12, 18, 26,
33 (1974). The increase was easy for many schools because most of them
were increasing their overall enrollments. Sharp rises in the number and
quality of law school applicants, and an apparently booming legal market
(characterized then, as now, by escalating salaries at the top end) led to
a doubling in the number of law school graduates between 1970 and 1975,
and the creation of many new law schools. See Richard H. Sander & E.
Douglass Williams, Why Are There So Many Lawyers? Perspectives on a
Turbulent Market, 14 Law & Soc. Inquiry 431, 445 tbl.8 (1989).
n36. A good example of the prevailing view was Justice Douglas's
opinion in DeFunis v. Odegaard, 416 U.S. 312 (1974). In that case, a white
applicant challenged admissions policies at the University of Washington
Law School, contending that the school exercised illegal racial
preferences in favor of blacks. Id. at 314. The Supreme Court held, per
curiam, that the case had been mooted by DeFunis's impending graduation
from law school, id. at 317, but Justice Douglas wrote a dissenting
opinion addressing the merits, id. at 320. Justice Douglas expressed
serious doubts about racial preferences, but condemned the LSAT as a
culturally biased metric that gave many whites an unfair advantage. Id. at
340-41 (Douglas, J., dissenting). See infra Part IV for examples of
arguments about LSAT bias, as well as my discussion of the validity of
standardized tests.
n37. Minority attrition rates are based on comparisons of first-and
third-year enrollments. During this same period, white retention rates -
buoyed by the strengthening of the applicant pool - were rising to average
levels of around ninety percent (based on comparison of first-year
enrollment and degrees awarded). Am. Bar Ass'n, Section of Legal Educ. &
Admissions to the Bar, 51 Law Schools & Bar Admission Requirements: A
Review of Legal Education in the United States - Fall 1976, at 47-48
(1977).
n38. Michael D. Rappaport, The Legal Educational Opportunity Program at
UCLA: Eight Years of Experience, 4 Black L.J. 506, 516 (1975).
n39. Id. at 507; Brief Amicus Curiae for the Association of American
Law Schools, Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)
(No. 76-811), reprinted in 3 Allan Bakke Versus Regents of the University
of California, The Supreme Court of the United States 379, 393-96 (Alfred
A. Slocum ed., 1978) [hereinafter AALS Bakke Brief].
n40. SUSAN WELCH & JOHN GRUHL, Affirmative Action and Minority
Enrollment in Medical and Law Schools 56-58, 56 fig.2.6 (1998).
n41. AALS Bakke Brief, supra note 39 (submitted for the 1976-1977 Term
of the Supreme Court, although the Court did not issue its decision until
June 1978).
n42. Id. at 14-15.
n43. "We know ... that the test is not racially biased. Five separate
studies have indicated that the test does not underpredict the law school
performance of blacks and Mexican-Americans." Id. at 13.
n44. Id. at 20. The brief noted that, of course, all law schools also
used "soft" factors (such as letters of recommendation) in admissions. But
greater weight on "soft" factors was not a solution to minority
underrepresentation unless minority students had stronger "soft"
qualifications than whites, and the brief argued that "there is not the
slightest reason to suppose that [this is the case]; indeed, there is no
reason to suppose that such subjective factors are distributed on other
than a random basis among applicants of different races." Id. at 34. This
is an overstatement, since certainly measures of socioeconomic
disadvantage, for example, are not distributed randomly across racial
groups; but it is surely true that no "super-index," based on both
academic and nonacademic factors, could select minorities as efficiently,
and with so little overall academic cost, as separate admissions tracks.
See Sander, supra note 5.
n45. AALS Bakke Brief, supra note 39, at 22-27.
n46. Id. at 2. The brief went on to quantify this claim with some
specific estimates: if all law schools used race-neutral criteria, black
enrollment would fall by 60% to 80% and Chicano enrollment would fall by
40% to 70%. See id. at 28. The estimates were based on comparisons of the
LSAT and undergraduate GPA (UGPA) distributions of all law school
applicants, as documented in Franklin R. Evans, Applications and
Admissions to ABA Accredited Law Schools: An Analysis of National Data for
the Class Entering in the Fall of 1976, in 3 Reports of LSAC Sponsored
Research: 1975-1977, at 551. I examine these claims more closely in Part
VII.
n47. AALS Bakke Brief, supra note 39, at 26.
n48. Boalt Hall is the law school of the University of California at
Berkeley.
n49. AALS Bakke Brief, supra note 39, at 27.
n50. Sub rosa literally translates as "under the rose" from Latin, but
is used here to mean "in secrecy." See Black's Law Dictionary 1441 (7th
ed. 1999).
n51. AALS Bakke Brief, supra note 39, at 38 (citation omitted).
n52. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 369 (1978)
(Brennan, White, Marshall & Blackmun, J.J., concurring in the judgment in
part and dissenting in part) (finding that "a state government may adopt
race-conscious programs if the purpose of such programs is to remove the
disparate racial impact its actions might otherwise have and if there is
reason to believe that the disparate impact is itself the product of past
discrimination, whether its own or that of society at large").
n53. Id. at 413 (Stevens, J., concurring in the judgment in part and
dissenting in part) (stating that Title VI of the Civil Rights Act of 1964
"stands as a broad prohibition against the exclusion of any individual
from a federally funded program "on the ground of race'").
n54. Id. at 317 (opinion of Powell, J.).
n55. Welch & Gruhl, supra note 40, at 63 (quoting Am. Council on Educ.,
Ass'n of Am. Law Sch., The Bakke Decision: Implications for Higher
Education Admissions 33 (Wayne McCormack ed., 1978) [hereinafter
ACE-AALS]).
n56. Id. (quoting ACE-AALS, supra note 55, at 21).
n57. Id. at 6.
n58. Id. at 131-32.
n59. Id. at 61, 75.
n60. Id. at 70-71.
n61. Am. Bar Ass'n, Minority Enrollment 1971-2002, supra note 10.
n62. Welch & Gruhl, supra note 40, at 76-77.
n63. Report from the UCLA Law School Admissions Task Force, 1978-79, to
the Faculty (Nov. 21, 1978) (on file with author).
n64. Enrolled "Minority Group" students as a percentage of total
enrollment at UCLA went from 23% in 1978 to 31% in 1982. Compare Section
of Legal Educ. & Admission to the Bar, Am. Bar Ass'n, A Review of Legal
Education in the United States, Fall 1978, Law Schools & Bar Admission
Requirements 9 (1979), with Section of Legal Educ. & Admission to the Bar,
Am. Bar Ass'n, A Review of Legal Education in the United States, Fall
1982, Law Schools & Bar Admission Requirements 6 (1983). I return to the
operation of UCLA's diversity system in Part II.
n65. One distinguished constitutional scholar has suggested to me that
shifting from obvious quotas to "invisible" weightings of diversity
factors was Justice Powell's real objective all along. In a similar vein,
another prominent constitutional scholar suggested to me that Justice
O'Connor similarly cared deeply about schools engaging in a ritual of
individualized assessment even if the results were identical to those
produced by numerical formulas. These observations remind me of a
creationist argument I once heard to the effect that God created fossils
to fool skeptics into believing in evolution - not a logically impossible
argument, but a hard view for an empiricist like me to address.
n66. Boalt's consent agreement and a description of the offending
admissions procedures are contained in its report to the U.S. Department
of Education's Office of Civil Rights. Rachel F. Moran et al., Statement
of Faculty Policy Governing Admission to Boalt Hall and Report of the
Admissions Policy Task Force (1993).
n67. WELCH & GRUHL, supra note 40, at 154. For example, at the
University of Texas, minority applicants were first considered by a
special minority subcommittee, which would then offer its recommendations
to the full admissions committee. By 1992, minority applicants were no
longer selected by the full committee - the minority subcommittee simply
delivered its report to the full committee, which chose the number of
minorities to admit, but left the individual admissions decisions up to
the subcommittee. See the district court opinion in Hopwood v. Texas, 861
F. Supp. 551, 558-60 (W.D. Tex. 1994), rev'd, 78 F.3d 932 (5th Cir. 1996).
n68. For one of the few comparatively candid discussions of law school
affirmative action in the post-Bakke era, see Leo M. Romero, An Assessment
of Affirmative Action in Law School Admissions After Fifteen Years: A Need
for Recommitment, 34 J. LEGAL EDUC. 430 (1984).
n69. An associate dean of Washington University School of Law claimed
that "test scores and grades are weighed heavily for admission to the [law
school]" and that "race, gender, age and family background come into play
when students are borderline." Lorraine Kee, Debate Rages over Affirmative
Action, St. Louis Post-Dispatch, Sept. 21, 1997, at 01A. Ronald Hjorth,
former dean of the University of Washington School of Law, once denied
that his school "maintains a quota, saying instead that race is merely
used as a "plus factor' in admissions decisions, considered as part of an
applicant's "background and life experiences ' that may add diversity to
the student body." Robyn Blummer, Law School Dean Runs from the Truth,
Rocky Mountain News (Denver, Colo.), Sept. 11, 1998, at 75A.
n70. Total first-year enrollment figures for ABA-approved law schools
for the years 1947-2002 are available from the ABA at Am. Bar Ass'n, First
Year Enrollment in ABA Approved Law Schools 1947-2002 (Percentage of
Women), at http://www.abanet.org/ legaled/statistics/femstats.html (last
visited Nov. 22, 2004) [hereinafter Am. Bar Ass'n, First Year Enrollment].
First-year enrollment figures for blacks from 1971-2002 are also available
from the ABA in Am. Bar Ass 'n, Minority Enrollment 1971-2002, supra note
10.
n71. See Am. Bar Ass'n, First Year Enrollment, supra note 70.
n72. On these last two points, see infra Table 8.1.
n73. Blacks accounted for 3744 out of 5568 nonwhites enrolled in any
year of law school in 1971, 8149 out of 19,410 nonwhites in 1991, and 9412
out of 26,257 nonwhites in 2001. Am. Bar Ass'n, Minority Enrollment
1971-2002, supra note 10.
n74. In 1970, there were fewer than three million nonwhite immigrants
(including Hispanics) in the United States. U.S. Bureau of the Census,
Statistical Abstract of the United States: 1981, at 34 tbl.40 (1981). By
1999 that number had risen to over nineteen million. U.S. Bureau of the
Census, Statistical Abstract of the United States: 2001, at 44 tbl.43
(2001) [hereinafter 2001 Census Statistical Abstract].
n75. In 1970, the U.S. Department of Education's Office for Civil
Rights counted 102,788 "Spanish-surnamed" students enrolled in all
American undergraduate colleges and universities. Brown et al., supra note
18, at 17. In 1999, there were 1,300,000 Hispanics enrolled in college, an
increase from 2% to 8% of the total student population. 2001 Census
Statistical Abstract, supra note 74, at 168 tbl.268.
n76. See supra note 17. The percentage of doctoral degrees in the
physical sciences received by Asians declined somewhat, from 6.9% to 6.6%,
between 1980 and 1990. Nat'l Ctr. for Educ. Statistics, Digest of
Education Statistics 2002, at 347 tbl.303 (2003). The percentage of
engineering degrees granted to Asians declined from 20% to 17.4%. Id. at
354 tbl.300. Over the same period of time, the percentage of law degrees
awarded to Asian students increased from 1.1% to 2.3% (a 112% increase).
Am. Bar Ass'n, Minority Degrees Awarded, supra note 13. More informal
evidence comes from Arthur S. Hayes, Asians Increase at Big Firms, Nat'l
L.J., Dec. 18, 2000, at A1 ("Asian-American lawyers say that their
disproportionately large numbers at IP firms reflect the choice of more
second-and third-generation Asian-Americans to pursue careers outside
engineering and science.").
n77. The Center for Individual Rights provided funding and staff
support for all three lawsuits, according to David B. Wilkins, From
"Separate Is Inherently Unequal" to "Diversity Is Good for Business": The
Rise of Market-Based Diversity Arguments and the Fate of the Black
Corporate Bar, 117 Harv. L. Rev. 1548, 1551 (2004).
n78. Public law schools were more attractive targets for several
reasons. First, they were under clear constitutional as well as statutory
(Title VI) bans on discriminatory practices; second, they were covered by
state "freedom of information acts" (FOIAs) that made it easier to do data
reconnaissance before filing suit; and third, there was more public
hostility to the use of preferences by public universities than by private
ones.
n79. Hopwood v. Texas, 861 F. Supp. 551, 553-54, 578-79, 582 (W.D. Tex.
1994), rev'd, 78 F.3d 932 (5th Cir. 1996).
n80. Hopwood v. Texas, 78 F.3d 932, 944-46 (5th Cir. 1996). The court
also found that the school's admissions program went well beyond what
would be justified under Powell's diversity rationale even if that still
applied.
n81. Texas v. Hopwood, 518 U.S. 1033 (1996). Justice Ginsburg's
concurrence with the denial of certiorari argued that because the 1992
admissions policy contested in Hopwood was no longer being used by the law
school, there was no live issue to rule on; she distinguished between the
Fifth Circuit's judgment, which found the 1992 policy to be in violation
of the Fourteenth Amendment, and the Fifth Circuit's rationale, which
rejected the use of race in admissions when based on a diversity
rationale, and reminded the petitioners that the Court "reviews judgments,
not opinions." Id. (Ginsburg, J., concurring in the denial of certiorari)
(quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842 (1984)).
n82. 233 F.3d 1188 (9th Cir. 2000).
n83. Id. at 1196, 1200-01.
n84. Smith v. Univ. of Wash. Law Sch., 532 U.S. 1051 (2001) (denial of
certiorari).
n85. Smith, 233 F.3d at 1192-93.
n86. Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539
U.S. 244 (2003).
n87. Grutter v. Bollinger, 137 F. Supp. 2d 821, 847, 849, 872 (E.D.
Mich. 2001), rev'd, 288 F.3d 732 (6th Cir. 2002), aff'd, 539 U.S. 306
(2003).
n88. Id. at 853, 872.
n89. Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002), aff'd, 539
U.S. 306 (2003).
n90. Grutter, 539 U.S. 306; Gratz, 539 U.S. 244.
n91. Grutter, 539 U.S. at 325.
n92. Id. at 337.
n93. Gratz, 539 U.S. at 270.
n94. Grutter, 539 U.S. at 315-16.
n95. See id. at 337 (equating the law school's "race-conscious
admissions program" with the Harvard plan Justice Powell approved of in
Bakke, and noting that both "adequately ensure[] that all factors that may
contribute to student body diversity are meaningfully considered alongside
race in admissions decisions").
n96. See id. at 343 ("We expect that 25 years from now, the use of
racial preferences will no longer be necessary to further the interest
approved today. ").
n97. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 288-89
(1978) (opinion of Powell, J.) (finding the "semantic distinction" between
a goal and a quota to be "beside the point" because "the special
admissions program is undeniably a classification based on race and ethnic
background"); id. at 374 (Brennan, White, Marshall & Blackmun, JJ.,
concurring in the judgment in part and dissenting in part) ("True, whites
are excluded from participation in the special admissions program, but
this fact only operates to reduce the number of whites to be admitted in
the regular admissions program in order to permit admission of a
reasonable percentage ... of otherwise underrepresented qualified minority
applicants."); id. at 412 (Stevens, J., concurring in the judgment in part
and dissenting in part) ("The University, through its special admissions
policy, excluded Bakke from participation in its program ... because of
his race.").
n98. See id. at 369 (Brennan, White, Marshall, & Blackmun, JJ.,
concurring in the judgment in part and dissenting in part) (finding that
"a state government may adopt race-conscious programs if the purpose of
such programs is to remove the disparate racial impact its actions might
otherwise have and if there is reason to believe that the disparate impact
is itself the product of past discrimination, whether its own or that of
society at large").
n99. See id. at 413 (Stevens, J., concurring in the judgment in part
and dissenting in part) (finding that Title VI of the Civil Rights Act of
1964 "stands as a broad prohibition against the exclusion of any
individual from a federally funded program on the ground of race")
(quotation marks omitted) (emphasis omitted).
n100. Grutter, 539 U.S. at 383 (Rehnquist, C.J., dissenting). For all
three groups, the admitted members as a percentage of admittees never
diverged by more than one percent from the applicant members as a
percentage of applicants over the six admissions cycles from 1995 to 2000.
See id. at 383-84, tbls.1-3.
n101. Id. at 383 (quoting id. at 330 (opinion of the Court)).
n102. Id. at 389 (Kennedy, J., dissenting).
n103. Id. at 361 (Thomas, J., dissenting).
N104. Gratz, 539 U.S. at 295-98 (Souter, J., dissenting).
n105. Id. at 305 (Ginsburg, J., dissenting).
n106. I base this claim on analyses of raw 2002 and 2003 admissions
data from eight law schools, which I secured through FOIA requests.
Logistic regression analysis of admissions outcomes suggests that
something close to a 60/40 relative weight of LSAT and UGPA is quite
common.
n107. This approach of graphing the admissions probabilities of blacks
and whites by academic index has been used by a number of scholars
studying affirmative action, including Bowen and Bok as well as Kinley
Larntz (a plaintiff's expert in the Michigan cases). See Bowen & Bok,
supra note 2, at 27; Fourth Supplemental Expert Report of Kinley Larntz,
Ph.D. at 25-33 figs.3-10, Grutter v. Bollinger, 137 F. Supp. 2d 821, 847,
849, 872 (E.D. Mich. 2001) (No. 97CV75928-DT).
n108. Grutter, 539 U.S. at 334 (opinion of the Court).
n109. Id. at 337.
n110. See id. at 334; Regents of the Univ. of Cal. v. Bakke, 438 U.S.
265, 317 (1978) (opinion of Powell, J.).
n111. The data in Justice O'Connor's concurrence can be found in Gratz
v. Bollinger, 539 U.S. 244, 277-78 (2003) (O'Connor, J., concurring).
n112. For college applicants, the formula would be Index = [(Combined
SAT - 400)/2] + 100 High School GPA, with GPA measured on a 4.0 scale.
n113. Note, too, that our law school data is not broken down by state
residency. Since the law school apparently counts Michigan residency for
something, and this something would account for part of the limited
attention given to nonacademic factors, this leaves even less scope for
nonracial "diversity" factors.
n114. For more on logistic regression, see supra notes 189-191 and
accompanying text.
n115. Even if these other diversity factors are highly correlated with
academic credentials, academic credentials should have less explanatory
power in this part of the sample than they would otherwise, and this would
be reflected in the Somers's D.
n116. This picture is a slight oversimplification, in two respects.
First, the "Asian track" became more complex and nuanced as the size and
strength of the Asian admissions pool increased in the late 1980s and
early 1990s. Japanese, Chinese, and Korean applicants gradually received
less of a preference, while Asians from the Philippines and Southeast Asia
continued to receive substantial preferences and be viewed as
underrepresented minorities. Second, the segregation of admissions
decisions by race coexisted with overall comparisons of racial pools. In a
given year, the Hispanic pool might be particularly strong and the black
pool particularly weak, so more Hispanics and fewer blacks than usual
would be admitted. But these cross-racial comparisons were between groups,
not individuals.
n117. One of the seven law schools that responded thoroughly to our
FOIA request was Michigan's. It is interesting to note that in
quantitative terms, the University of Michigan Law School was less rigidly
bound by quantitative factors in its 2002 and 2003 admissions than it was
in 1999 (and several earlier admissions cycles I studied). A regression of
white admissions at Michigan shows a Somers's D of .80 in 2002 and .82 in
2003 - among the lowest rates of all the schools I studied. Dean Evan
Caminker told me that, at least since he became aware of the admissions
process several years ago, the school has not used any formal academic
index in admissions and has strived to implement the holistic practices it
advertised in the Grutter litigation. This notwithstanding, the law
school's black admissions are still overwhelmingly driven by numbers
(Somers's D of .90 in 2002 and 2003) and it is still not possible to
explain the school's racial pattern of admissions without assuming that
race is given decisive weight for most matriculating blacks.
n118. Despite my repeated suggestions that law schools engage in
pervasive public dissembling about how their admissions systems operate, I
would like to offer a word in defense of admissions officers. The numeric
part of what they do - sorting applicants by race and index number,
admitting the stronger and rejecting the weaker ones within each group -
takes very little time, even if it ultimately accounts for ninety percent
of their admissions decisions. The vast majority of an admissions
director's time is spent reviewing the relatively small number of
intermediate cases, as well as screening out the tiny minority of
high-number applicants who will be rejected and the equally small number
of low-number applicants who will be admitted. From their perspective,
engaging in a "holistic appraisal" of applicants is central to their job.
Admissions offices also frequently spend a great deal of time and
effort on minority outreach, perhaps reasoning that the larger the
applicant pool from which they can draw, the smaller the numeric boost
they will have to give minority applicants to achieve the requisite racial
diversity.
n119. Bowen & Bok, supra note 2, at 15. This statement certainly does
not apply to law schools, the vast majority of which do use selective
admissions. I doubt that it is true even for undergraduate schools.
Peterson's Guide to Four-Year Colleges (one of the sources cited by Bowen
and Bok) ranks colleges by admissions selectivity. Seventy-five percent of
all colleges place themselves in the top three categories ("most
difficult," "very difficult," and "moderately difficult"); if the colleges
are accurately describing their policies, these are all selective
institutions. See Peterson's Guide to Four-Year Colleges 1998, at 51-56
(28th ed. 1997); see also Bowen & Bok, supra note 2, at 15 n.1.
Even if the "twenty to thirty percent" claim were true, it would be a
highly misleading statistic. There are some three thousand colleges in the
United States, but a great many of these are small and local and/or only
grant intermediate degrees. A relatively small number of colleges and
universities account for a large share of those seeking graduate
education. A mere one hundred college-level institutions - about 3% of the
total - account for about 40% of all law school applicants; the top two
hundred feeder institutions - about 6% of the total - account for 55% of
law school applicants. See Law Sch. Admission Council, National
Statistical Report 1997-98 Through 2001-02, at A-13 (2003).
n120. Grutter v. Bollinger, 539 U.S. 306, 361-62 (2003) (Thomas, J.,
dissenting) (citation omitted).
n121. Medical schools widely use interviews in evaluating candidates, a
luxury they can afford because of their high faculty-student ratios.
Business schools frequently require and assess evidence of real-world
organizational or business experience. Graduate schools in the arts and
sciences rely heavily on letters of recommendation (which are more
meaningful since the network of recommenders is relatively small and
specialized) and assessments of prior written and research work - again, a
more subjective process that is facilitated by smaller numbers of
applicants.
n122. See Part IV for a substantial elaboration of this point. See too
my discussion in the Conclusion about improving admissions methods; my own
research suggests that we can and should diversify admissions criteria in
law schools beyond the traditional LSAT and UGPA, so long as we can
properly validate new methods.
n123. In their analysis of law school ranking by U.S. News and World
Report, Stephen Klein and Laura Hamilton find that even by itself, the
student selectivity factor explained about 90% of the differences in
overall ranks among schools (i.e., percent of total variance). Since LSAT
is the major driver of student selectivity (and is highly correlated with
UGPA), ranking schools on LSAT alone will do a very good job of
replicating the overall ranks U.S. News publishes.
Stephen P. Klein & Laura Hamilton, The Validity of the U.S. News and
World Report Ranking of ABA Law Schools (Feb. 18, 1998), at
http://www.aals.org/validity.html (last visited Nov. 22, 2004) (on file
with author).
n124. Russell Korobkin, In Praise of Law School Rankings: Solutions to
Coordination and Collective Action Problems, 77 Tex. L. Rev. 403, 409-10
(1998).
n125. As we shall see in Part VII, the job market for graduates takes
at least as much account of a student's performance in law school as it
does of her school's brand name. The point here is that both law schools
and students behave as though brand name is transcendently important.
n126. For a deeper discussion of the idea that law students and law
school deans often behave as though the main purpose of law school is to
create a credentialing "signal" to employers, see Mitu Gulati et al., The
Happy Charade: An Empirical Examination of the Third Year of Law School,
51 J. Legal EdUC. 235 (2001), an expanded version of which was reprinted
in 2 NYU Selected Essays on Labor and Employment Law (David Sherwyn &
Michael J. Yelnosky eds., 2003).
n127. Korobkin, supra note 124, at 408, 414. The LSAC distributes each
year, to any accredited law school that asks for it, a "matriculation"
report, which shows how the school fared against other schools in
competing for students. The data is striking: ninety percent of students
admitted to both a tenth-ranked and a fifteenth-ranked school will choose
the more elite school.
n128. To offer one illustration drawn essentially at random, consider
Boalt's 2003 admissions. Boalt assigns each applicant an index (apparently
based on UGPA and LSAT); most index figures are between 180 and 260. For
whites admitted in 2003 with a Boalt index under 240, 34 of 48 enrolled
(71%). For whites with a Boalt index of 250 or higher, 4 out of 107
enrolled (4%). The correlation between an admitted white applicant's index
score and his probability of enrolling is -.85. This result emerges from
data disclosed by the University of California, Berkeley, in response to a
FOIA request; I currently have this data on file.
n129. 2004 Official Guide to ABA-Approved Law Schools, supra note 34,
at 820; Law Sch. Admission Council & Am. Bar Ass'n, The ABA-LSAC Official
Guide to ABA-Approved Law Schools: 2003 Edition 812 (2002) (reporting
Yale's student body as 8.8% African American); Law Sch. Admission Council
& Am. Bar Ass'n, The ABA-LSAC Official Guide to ABA-Approved Law Schools:
2002 Edition 800 (2001) (reporting Yale's student body as 9.7% African
American).
n130. For the entering class of 2002, for example, the twenty-fifth to
seventy-fifth percentile range at Yale Law School was 168-174; the
twenty-fifth to seventy-fifth percentile range at Cornell was 164-166.
2004 Official Guide to ABA-Approved Law Schools, supra note 34, at 227,
821. If one could compute an index for each school, incorporating
undergraduate grades and college quality, the ranges would be even tighter
and would overlap even less.
n131. Calculation by the author based on the figures for each school
given in 2004 Official Guide to ABA-Approved Law Schools, supra note 34.
n132. See Am. Bar Ass'n, Minority Enrollment 1971-2002, supra note 10;
Rosenlieb Memorandum, supra note 10.
n133. Linda F. Wightman, LSAC National Longitudinal Bar Passage Study
(1998) [hereinafter Wightman, LSAC-BPS]. The LSAC sought participation of
all U.S. accredited law schools and all students at those schools. Over
160 law schools agreed to participate, and some eighty percent of the
first-year students at those schools signed consent forms and completed
the initial questionnaire, creating a sample size of over twenty-seven
thousand students. See Wightman, User's Guide: LSAC National Longitudinal
Data File 6 (1999) [hereinafter Wightman, User's Guide]. The sample
appears to closely resemble the overall law student population (though
since it excludes unaccredited schools, the "bottom" of the law school
distribution is underrepresented). Id. at 5. Follow-up surveys were
administered to a subsample which overrepresented minority students (to
preserve an adequate sample size of different races). Id. at 6. The
LSAC-BPS data itself is available on the Internet at Law School Admission
Council, Bar Passage Study, http://bpsdata.lsac.org/ (last visited Dec. 3,
2004) [hereinafter LSAC-BPS Data].
n134. See Wightman, LSAC-BPS, supra note 133, at 5 (stating that "among
the 172 U.S. mainland ABA-approved law schools invited to participate in
this study, 163 [95%] agreed to do so," and that data from those schools
is presented in the study); Wightman, User's Guide, supra note 133, at
1-11. The LSAC and Wightman were fairly successful at getting bar outcome
data (from law schools and published lists) even when state bars did not
cooperate.
n135. See Wightman, LSAC-BPS, supra note 133, at 8.
n136. The theory that a cascade effect should exist was deduced by
Clyde Summers at the outset of the affirmative action experiment and
advanced by him as an important reason why large-scale racial preferences
could be self-defeating. Clyde W. Summers, Preferential Admissions: An
Unreal Solution to a Real Problem, 1970 U. TOL. L. REV. 377, 401. In the
1980s, Robert Klitgaard elaborated on similar ideas in his remarkable book
on admissions. Robert Klitgaard, Choosing Elites 173-75 (1985). Stephen
Cole and Elinor Barber refer to similar ideas in their recent book.
Stephen Cole & Elinor Barber, Increasing Faculty Diversity: The
Occupational Choices of High-Achieving Minority Students 203-05 (2003).
n137. In a forthcoming book, Patrick Anderson and I work through
detailed simulations of the distribution of students by race across
different school strata, under a variety of admissions scenarios.
n138. More detail on this point is available from the author, and will
be published in our forthcoming book on affirmative action in law schools.
n139. This follows because the admissions standard vis-a-vis blacks
does not change at all, so black admissions and matriculations in the
first year of the experiment should also remain constant.
n140. Klitgaard recognized this phenomenon in Choosing Elites. He even
constructed a "yield curve" showing the size of the black-white gap in
admissions standards necessary to enroll specified black populations of
students. Klitgaard, supra note 136, at 172-74.
n141. Clear examples are provided by Boalt Hall and the University of
Texas School of Law, which both saw the number of black matriculants fall
to nearly zero after each institution fell under bans on the use of race
in admissions (Proposition 209 and Hopwood, respectively). Both schools
were able to later raise black enrollments by finding ways around the
legal constraints they faced.
n142. A recent, well-done example of this point is Roy O. Freedle,
Correcting the SAT's Ethnic and Social-Class Bias: A Method for
Reestimating SAT Scores, 73 Harv. Educ. Rev. 1 (2003). Freedle finds that
when one controls for SAT verbal score, blacks tend to do better on hard
verbal questions and worse on easy verbal questions than do comparable
whites. He argues plausibly that this is because the hard questions
measure book learning while the easy questions measure cultural learning,
an area where many blacks have a social disadvantage. In spite of very
enthusiastic write-ups of Freedle's work in places like the Atlantic
Monthly, it is important to keep two points in mind: Freedle's
reconfigured scores close the black-white gap by only about five percent
for test-takers at the median black score or higher, and the revised
scores do not appear to have yet been validated as superior predictors of
college performance.
n143. Claude M. Steele & Joshua Aronson, Stereotype Threat and the Test
Performance of Academically Successful African Americans, in The
Black-White Test Score Gap 401 (Christopher Jencks & Meredith Phillips
eds., 1998). Steele and Aronson theorize that the performance of blacks on
tests is worse when they perceive those tests to be measures of
"intelligence" or "cognitive skills," because they are aware of the
general pattern of lower black performance on such tests. Fear of
conforming to the "stereotype" decreases their concentration and
confidence during the test.
n144. For an example of this argument, see David M. White, An
Investigation into the Validity and Cultural Bias of the Law School
Admission Test, in Towards a Diversified Legal Profession 66, 129-32
(David M. White ed., 1981).
n145. See Karl R. White, The Relation Between Socioeconomic Status and
Academic Achievement, 91 Psychol. Bull. 461 (1982), cited in Larry V.
Hedges & Amy Nowell, Black-White Test Score Convergence Since 1965, in The
Black-White Test Score Gap, supra note 143, at 149, 161 n.14.
n146. As I note in the Conclusion, I have little doubt that law schools
and other institutions can improve their admissions criteria by developing
other validated measures of capacity, but that opinion is not inconsistent
with believing that most of the criticisms of the LSAT are greatly
overblown.
n147. Single-school validation studies can nonetheless be helpful in
comparing the performance of groups within a school, or in assessing the
effects of other influences on academic performance; they are simply
invalid as a way of measuring the total utility of academic measures in
predicting academic outcomes.
n148. Klitgaard, supra note 136, at 201 tbl.A1.3.
n149. Stephen P. Klein & Roger Bolus, Gansk & Assocs., Report DR-03-08,
Analysis of the July 2003 Exam: Report to the Committee of Bar Examiners,
State Bar of California 4 (2003). Klein and Bolus's analysis is based on
nearly seven thousand cases. I would also note that when an individual law
school's index captures important "soft" variables (like the difficulty of
the applicant's undergraduate college) and the school's students have a
wide range of index scores (limiting the restriction-of-range problem),
predictive indices can be powerful even within that school. The UCLA
School of Law met both of these criteria, and an analysis I conducted of
nine classes of law students found that entering credentials achieved the
following R[su'2'] values for subsequent grades: for first-semester GPA,
.35; for second-semester GPA, .39; for first-year GPA, .44; for cumulative
GPA upon graduation, .44. Note that the predictive power of credentials
was as strong for graduation GPA as for first-year GPA.
n150. The attentive reader may notice that I sometimes capitalize the r
in r[su'2']. Formally, an r[su'2'] measures the amount of variation in a
dependent variable accounted for by one independent variable, while an
R[su'2'] measures the amount of variation in a dependent variable
accounted for by multiple independent variable measured simultaneously.
n151. Klitgaard, supra note 136, at 182-86; see also John Monahan, Risk
and Race: An Essay on Violence Forecasting and the Civil/Criminal
Distinction (2003) (unpublished manuscript, on file with author).
n152. Knaplund, Winter, and I have complete data (background data
provided by schools as well as questionnaires completed by students) for
twenty participating law schools and over four thousand students. This
database, known as the 1995 National Survey of Law Student Performance, is
available on CD from the author. The overall response rate among
first-year students at these schools was seventy-eight percent. Kris
Knaplund, Kit Winter & Richard Sander, 1995 National Survey of Law Student
Performance CD-ROM [hereinafter 1995 National Survey Data].
n153. For the schools collectively, the results were an r[su'2'] of .21
(with the restriction-of-range problem) for LSAT/UGPA alone and an
R[su'2'] of .27 when data on studying, participation, etc. was added. See
1995 National Survey Data, supra note 152.
n154. One of the earliest and best-known efforts to collect systematic
data on the relationship between smoking and life expectancy was published
in 1938 by Johns Hopkins biologist Raymond Pearl. If one assigns a large
number of nonsmokers, light smokers, and heavy smokers the distribution of
life expectancies measured by Pearl, the correlation of the three levels
of smoking with life expectancy is -.177, even though the heavy smokers,
as measured by Pearl, lived an average of seven years less than the
nonsmokers. If one leaves out the category of light smokers (heightening
the contrast), the correlation of heavy smoking with life expectancy is
-.214. For the original data, see Raymond Pearl, Tobacco Smoking and
Longevity, 87 Science 216 (1938).
n155. Klitgaard, supra note 136, at 89 (citing Christopher Jencks et
al., Who Gets Ahead? 57 (1979)).
n156. These numbers are from actual simulations with data from 1995
National Survey Data, supra note 152.
n157. I selected this area because it comes closest, within the
LSAC-BPS data, to representing a single bar (California's), thus
minimizing the problem of trying to compare a variety of state bar
standards within the same statistic.
n158. Admittedly, the sample sizes are small, but one observes similar
patterns throughout the bar data. Calculation by the author from LSAC-BPS
Data, supra note 133.
n159. Indeed, even small differences in numbers are quite powerful when
applied to large numbers of people, a point often overlooked by admissions
officers and even by the LSAC, which has officially suggested "banding"
LSAT scores to avoid giving an undue impression of precision. "Banding" or
otherwise placing applicants in broad index categories simply throws
information away. One hundred persons with an LSAT score of 161 are highly
likely to have higher law school grades and higher pass rates on the bar
than one hundred persons with an LSAT score of 160.
n160. For example, a methodologically careful study by Donald Powers
and Donald Rock found among a large random sample of SAT takers, only
twelve percent "attended coaching programs offered outside their schools."
Donald E. Powers & Donald A. Rock, Effects of Coaching on SAT I: Reasoning
Scores 2 (College Entrance Examination Board, Report No. 98-6) (1998).
Whites were significantly underrepresented among coached students, while
blacks were mildly overrepresented. Powers and Rock compared a control
group of several thousand students who took the SAT twice, without
participating in a coaching program, with an experimental group who also
took the SAT twice, but participated in a coaching program (for the first
time) between the two tests. Students in both groups generally did
somewhat better on the second test; for the coached students, the average
net improvement over the control students was eight points on the verbal
SAT and eighteen points on the math SAT (an overall gain of about
one-eighth of a standard deviation). Id. at 13.
n161. Suppose, for example, that the prep courses were twice as
powerful as research suggests - in other words, suppose prepping could
increase scores by a quarter of a standard deviation. Suppose further that
instead of blacks being more likely to take cramming courses than whites
(as the research cited in note 160 finds), whites were twice as likely as
blacks to take such courses (say, 16% of whites but only 8% of blacks took
the courses). Then the "test prep" disparity could account for 0.25 0.08,
or 0.02 of a standard deviation in the black-white SAT gap. Since the
actual score gap is around one standard deviation, our "prep gap"
hypothetical, generous as it is, would explain only 2% of the black-white
gap.
n162. See, e.g., W.B. Schrader & Barbara Pitcher, Predicting Law School
Grades for Black American Law Students, in 2 Reports of LSAC Sponsored
Research 451 (1976); W.B. Schrader & Barbara Pitcher, Prediction of Law
School Grades for Mexican American and Black American Students, in 2
Reports of LSAC Sponsored Research, supra, at 715; see generally Law Sch.
Admission Council, 3 Reports of LSAC Sponsored Research (1977).
n163. Klitgaard, supra note 136, at 162-64.
n164. I found this pattern in two different data sets. In the 1995
National Survey of Law Student Performance, four of the twenty schools
graded legal writing courses in the first semester; for those schools as a
whole, the black-white gap was somewhat larger in legal writing classes
than in other first-semester courses. The sample size is small, however,
and the finding of a greater gap in legal writing classes is not quite
statistically significant. Note, too, that for these four schools, most of
the fifty-eight blacks in the sample came from a single school. See 1995
National Survey Data, supra note 152. The UCLA Academic Support Dataset,
which Kris Knaplund and I used in our studies of academic support,
contains data on law student performance over a nine-year period,
including legal writing grades for two years, 1990-1991 and 1991-1992. If
we compare the black-white grade gap for the 362 whites and 49 blacks in
those two classes, the gap is 7.1 points in legal writing classes and 6.2
points in overall first-year averages. (At the time, the UCLA School of
Law had a 0 to 95 grading system with a mean of 78 and a standard
deviation of between 4 and 5 points.) Again, the larger black-white gap in
legal writing classes is almost but not quite statistically significant,
which is not surprising given the small sample size. Note that legal
writing classes are generally not graded anonymously (as other first-year
courses normally are), which introduces the added factor of possible bias.
While I would not completely discount the influence of personal biases
among professors, I believe that in the generally progressive world of law
schools the net effect of bias is unlikely to be a net disadvantage for
blacks.
The larger point - that the black-white gap is not simply a function of
exams involving time-pressure - is further reinforced by the finding in
Part V that the black-white grade gap is slightly larger in the second and
third years of law school than in the first year. Since upper-year courses
in most schools employ a much wider array of evaluative methods (e.g.,
clinical exercises, seminar papers) than first-year courses, the fact that
the black-white gap remains undiminished suggests that the gap is not a
mere by-product of timed examinations.
n165. My own, unpublished research suggests that a talented young
person of any race growing up in a low-to-modest socioeconomic environment
has a better chance of reaching the upper-middle class through ordinary
capitalism than through a graduate degree, such as a law degree. If this
is true, it suggests that a key goal of our public education and
university system - to promote opportunity and bring talent to the fore -
is not working. For reasons of effectiveness, utility, and fairness,
discussed both in this Article and in Knaplund & Sander, supra note 4,
simply providing racial preferences in college and graduate school
admissions is too simple a fix.
n166. For a representative example of this attitude, see Bowen & Bok,
supra note 2, at 280-86.
n167. Indeed, I think this theory is undoubtedly true in many contexts.
See, e.g., Leonard S. Rubinowitz & James E. Rosenbaum, Crossing the Class
and Color Lines (2000) (showing the educational benefits to black children
whose parents are enabled to migrate from inner-city public housing to
suburban school districts).
n168. See supra note 133 and accompanying text.
n169. The discerning reader may notice that the various n figures in
Table 3.2 sum to 155, not to 163. This is because eight of the schools in
the LSAC-BPS data were not included in these six clusters. In total, these
schools only comprised fewer than two hundred data points out of a data
set of over twenty-seven thousand, so their exclusion is not especially
troubling.
n170. Here, and in other tables of this type, some columns do not sum
to 100.0% because of rounding.
n171. It can be problematic to assume that blacks are on the same
regression line as whites if a wide gulf separates their credentials.
However, Table 5.2, by comparing respondents of all races, bridges the
gulf. Moreover, a separate regression using only black respondents
produces almost identical - indeed, slightly stronger - results (R[su'2']
of .21, standardized coefficients of 0.41 for ZLSAT and 0.25 for ZUGPA).
n172. The reader may reasonably wonder why I have used a different data
set to test how well entering credentials predict first-year grades. The
answer is straightforward: The LSAC-BPS data set standardizes grades for
each participating law school, but does not standardize the entering
credentials of students according to the law school they attended. Nor
does the data set permit the researcher to make such a standardization.
Without this standardization, regression results would be meaningless at
best and highly misleading at worst. The 1995 National Survey is a smaller
database, but all of its variables can be identified by individual law
school and the sample size is large enough to provide reliable results.
n173. For a more detailed explanation of multiple regression, see
Knaplund & Sander, supra note 4, at 208-24.
n174. It is true that other researchers have found that black students'
grades are lower than predicted by equations using background credentials.
Bowen and Bok, for example, found substantial black "underperformance" in
elite colleges. Bowen & Bok, supra note 2, at 76-78, 383 tbl.D.3.6. Such
findings are generally due to three factors: (a) the inadequate
measurement of background credentials (e.g., Bowen and Bok use very crude
measures of high school grades and no measure of high school quality); (b)
misspecification of appropriate statistical forms (depending on grading
systems, curvilinear functions may be more appropriate than linear ones);
and (c) the omission of factors related to affirmative action itself that
depress performance (e.g., discouragement). Since my data does not show
any net underperformance by blacks, I will not belabor the potential
measurement problems that sometimes show up in other data sets.
n175. In other words, the data show that if blacks were admitted to law
school through race-neutral selection, they would perform as well as
whites. As I have noted, there is nonetheless a very large black-white
credentials gap among those applying to law school, and this gap does not
disappear when one uses simple controls for such glib explanations as
family income or primary-school funding. Researchers have made great
strides over the past generation in accounting for the black-white gap in
measured cognitive skills. The dominant consensus is that: (a) the gap is
real, and shows up under many types of measurement; (b) the gap is not
genetic, i.e., black infants raised in white households tend to have the
same or higher cognitive skills as whites raised in the same conditions;
and (c) there are a variety of cultural and parenting differences between
American blacks and whites (e.g., time children spend reading with parents
or watching television) that substantially contribute to measured skill
gaps. On these points, see the excellent essays in The Black-White Test
Score Gap, supra note 143, particularly chapters one through five. Jim
Lindgren has pointed out that in the National Survey data analyzed in
Table 5.2, the "race" coefficients become at least weakly significant (and
negative) if one does not include those not reporting race with white
students. So far as I can determine (from other data provided by some
participating schools), students not reporting race were predominantly
white or Asian, which supports the approach taken in this table. In any
case, the race effects are still extremely weak. Under any formulation,
academic outcomes for all racial groups are dominated by academic
credentials, not race.
n176. Note that I have renumbered the groups so that numbers descend
with eliteness. In the LSAC-BPS codebook, our Group 1 is called "Cluster
5," Group 2 is called "Cluster 4," and so on.
n177. See also Wightman, LSAC-BPS, supra note 133. Two relevant
explanatory notes on Table 5.3: (a) even though the black distribution is
much more evenly distributed in Group 6 schools, the black percentile
distribution is low relative to the percentile distribution of whites
because there are a smaller number of whites and they are concentrated in
the higher deciles; and (b) the Group 5 schools seem to be more
heterogeneous in affirmative action policies, which would explain why
there is a concentration of blacks at the high and low ends at those
schools.
n178. The size of the black-white gap in law school performance closely
matches the size of the gap at highly selective undergraduate colleges, as
reported by Bowen and Bok in The Shape of the River. They observed that
the college grades of black students "present a ... sobering picture."
Bowen & Bok, supra note 2, at 72. They report that the average class rank
of black matriculants was at the twenty-third percentile. Id. I find that
the black average percentile at the most elite law schools was at the
twenty-first percentile. Of course, averages are raised disproportionately
by a few students with very high grades - hence my general reliance on
distributions and medians in reporting grade data. The implication of the
statistic reported by Bowen and Bok is that the "typical" or "median"
black student at elite American colleges has a class rank close to the
tenth percentile and is outperformed by 94-95% of the white students.
n179. This figure is derived from calculations by the author from
LSAC-BPS Data, supra note 133.
n180. This figure is derived from calculations by the author from
LSAC-BPS Data, supra note 133.
n181. Gulati et al., supra note 126, at 239.
n182. William Henderson has recently shown that (at least at the two
schools he studied) student LSAT scores predict law school performance
best on timed, in-class exams; they are significantly poorer predictors of
performance when professors use papers or take-home exams. I suspect
Henderson is right; indeed, my own data (from 1995 National Survey Data,
supra note 152) show a similar pattern. I do not find, however, that the
widespread use of timed exams in law schools explains the black-white gap.
The data in Table 5.4 provides some indirect evidence on this point; my
data on the black-white gap in legal writing classes, (discussed supra
note 164), shows even more directly that the gap is as large or larger in
nontimed classes. My legal writing samples are small, however, and I
believe more research on this point is needed. See William D. Henderson,
The LSAT, Law School Exams, and Meritocracy: The Surprising and
Undertheorized Role of Test-Taking Speed, 82 Tex. L. Rev. 975, 986,
1043-44 (2004).
n183. See Wightman, LSAC-BPS, supra note 133.
n184. The unaccredited law schools, most of them located in California,
have essentially open admissions and far higher attrition rates, partly
because California requires students at unaccredited schools to take a
"baby bar" at the end of their first year.
n185. The aggregate ABA data for the entering class of 1991 suggests
that about 8.7% of that class did not graduate; the LSAC-BPS data suggests
that 9.2% of the students in their sample did not graduate, which I take
as further evidence of the comprehensiveness and reliability of the
LSAC-BPS data. See LSAC-BPS Data, supra note 133. Neither estimate,
however, is completely reliable. The ABA data does not track individual
students, but merely lets us estimate attrition by comparing the number of
graduates for a given year (e.g., 1994) with the number of students
entering three years earlier. The LSAC-BPS lost track of some students who
dropped out of the study. Moreover, if we include non-ABA schools (which
are absent from both data sources), attrition rates are somewhat higher.
n186. Calculations by the author from LSAC-BPS Data, supra note 133.
n187. The reader should bear in mind that the LSAC-BPS "clusters," from
which the six groups used in this analysis are drawn, were not created by
the LSAC-BPS investigators simply to measure eliteness. If it were
possible to create a more hierarchical ranking with this data, it would
presumably show an even stronger association of eliteness with graduation
rates.
n188. See Wightman, LSAC-BPS, supra note 133.
n189. The square root of the Wald Chi-Square value is comparable to the
t-statistic in a linear regression.
n190. As in linear regression, "statistical significance" is generally
attributed to independent variables with a p-value under .05, but this is
somewhat arbitrary. The lower a p-value (and the higher the Wald
Chi-Square value), the more likely it is that the association is more than
accidental.
n191. For example, if 10% of our sample did not complete law school, we
could guess any given person's graduation chances with 90% accuracy simply
by consistently guessing that each person would graduate. A Somers's D of
0 in a model for predicting whether a person would graduate would thus
indicate a model with that same 90% accuracy rate; a Somers's D of 1 would
indicate a model with 100% accuracy; a Somers's D of .645, like the actual
model above, would indicate a model with an accuracy of approximately
96.45%.
n192. The meaning of the p-value here is analogous to its earlier
definition; specifically, it represents the probability that the Wald
Chi-Square test statistic would be as high as this or higher, assuming
that there is no relationship between the variable in question and
likelihood of passing the bar.
n193. See Wightman, LSAC-BPS, supra note 133.
n194. A better way of including eliteness as a variable in this
regression would be to have a series of dummy variables, each
corresponding to a different level of eliteness. But having run such a
regression and finding that it produces very similar results, I opted for
this simpler regression form to make the results more accessible..
n195. The proportion of part-time students in the LSAC-BPS sample is
9.5%. Calculation by the author from LSAC-BPS Data, supra note 133.
n196. Admittedly, the LSAC's measure of family income is vague and
self-reported. However, if family income were an important factor, we
would expect more high-GPA students to drop out, unless the two were very
highly correlated.
n197. I say this because the Wald Chi-Square value for blacks is short
of statistical significance. This is also true if we omit part-time status
and family income from the regression. It is possible that
multicollinearity between the black dummy variable and one or more of the
explanatory variables (particularly law school GPA, as a result of
affirmative action) may be affecting the variable's standard error, and
therefore lowering its apparent statistical significance. However, this
seems unlikely to be a problem for two reasons: First, the sample size is
large, which compensates for the potentially reduced power of the
estimators. Second, we would not expect multicollinearity to bias the
estimators, only to increase their standard errors. In both regressions,
to the extent that there is a relationship, it appears that blacks may be
more likely to remain in law school than other students with similar
characteristics. If so, this strengthens the argument that preferences and
the consequent low grades are behind the higher black attrition.
n198. Unless, of course, if discrimination against blacks were already
reflected in their law school grades, quality of school, family income,
etc. However, by far the most influential explanatory variable in
predicting graduation rates is a student's law school grades. If blacks
were getting lower grades in law school because of discrimination, we
would expect the regression represented in Table 5.2 to have a strongly
negative value for the black dummy variable; this is not the case. The
quality of a student's school is the next most important factor, and
affirmative action systematically raises these values. As such, it seems
unlikely that there is some sort of animus-based systemic discrimination
causing the elevated dropout rates among blacks.
n199. See Wightman, LSAC-BPS, supra note 133.
n200. It is true that a few whites are admitted to law schools with
index scores below 460, but they are comparatively rare. In the LSAC-BPS
database, there are 201 black law students with indices below 460 (11% of
all black matriculants), but only 40 white law students (0.2% of all white
matriculants). See LSAC-BPS Data, supra note 133.
n201. See Table 5.5, supra.
n202. In the LSAC-BPS data (mostly for students who graduated in 1994)
the first-time pass rate was 88.7%. See LSAC-BPS Data, supra note 133. My
own analysis of the first-time bar passage data in the Bar Examiner for
the 1994-1995 cycle yielded a lower number: 82.3%. See 1994 Statistics, B.
Examiner, May 1995, at 7, 12-14. The discrepancy potentially can be
explained by underreporting in the LSAC-BPS sample, varying definitions of
"first-time" takers, and the exclusion of graduates of nonaccredited law
schools (whose considerably lower passage rates significantly decrease
California's overall passage rate) in the Bar Examiner data. Recently,
however, bar passage rates have been declining throughout the United
States. See discussion infra note 286 and accompanying text.
n203. The LSAC-BPS data tracked participants' attempts to pass the bar
through five bar administrations (summer 1994 through summer 1996). . The
proportion of takers passing over this period was 94.8%. Calculation by
the author from LSAC-BPS Data, supra note 133. It is likely that some very
small number of additional graduates in the cohort passed the bar later.
n204. California is widely thought to have the most difficult bar - in
1994-1995 only 74% of first-time takers passed - but this is somewhat
misleading, since California permits students from unaccredited law
schools to take the bar. Bar-takers from unaccredited law schools
accounted for approximately 35% of total bar-takers in California in
1994-1995 and passed the bar at much lower rates. At the other extreme,
states such as South Dakota consistently have first-time bar passage rates
above 90%. These figures were arrived at by summarizing data presented in
issues of the Bar Examiner. See 1994 Statistics, B. Examiner, May 1995, at
7, 12, 14; 1995 Statistics, B. Examiner, May 1996, at 23, 28, 30.
n205. Calculation by the author from LSAC-BPS Data, supra note 133.
n206. Calculation by the author from LSAC-BPS Data, supra note 133.
n207. It is a testimony to the importance of diversity goals that law
school deans across the country accept much lower bar passage rates for
their schools - and consequent losses in prestige - because of
racial-preference policies.
n208. The statistics here are based on data for the July 1998
California bar provided by Sean Pine, Registrar of the UCLA School of Law
(on file with author).
n209. The meaning of the p-value here is analogous to its earlier
definition; specifically, it represents the probability that the Wald
Chi-Square test statistic would be as high as this or higher, assuming
that there were no relationship between the variable in question and
likelihood of passing the bar.
n210. See Wightman, LSAC-BPS, supra note 133.
n211. Because the majority of black law students have significantly
lower law school GPAs than the average student (recall that the median
black student GPA falls between the fifth and sixth percentile for white
students' GPAs), one might expect that multicollinearity between these
variables would be a significant problem. To a lesser extent, this issue
also arises with respect to the LSAT variable, and perhaps with
undergraduate GPA as well. However, multicollinearity should only increase
the variance of the parameter estimations, not the estimates themselves.
In other words, our estimated coefficients should still be accurate, but
they may not be as precise. However, in this case this is not a
significant problem for two reasons: First, the sample size is quite
large, which counteracts the loss in precision from the multicollinearity.
Second, the relative size of the coefficients is so different,
particularly for the primary trade-off at issue here (Law School Tier
versus Law School GPA) that even if some of the estimators were slightly
off, it almost certainly would not meaningfully affect any of the
subsequent analysis or conclusions.
n212. The regression behind Table 6.1 is a robust test of this
statement. The same conclusion has been reached by Stephen Klein, of the
Rand Institute, in studies of specific bar examinations. See Stephen P.
Klein & Roger Bolus, The Size and Source of Differences in Bar Exam
Passing Rates Among Racial and Ethnic Groups, B. Examiner, Nov. 1997, at
8, 15; cf. Stephen P. Klein, Law School Admissions, LSATs, and the Bar,
Acad. Questions, Winter 2001-02, at 33.
n213. In particular, I found these results are not affected by
including other background variables such as part-time status, family
income, or parents' education.
n214. Summarizing data in tabular form often masks small distortions.
Since the overall distribution of blacks by index is lower than the
distribution of whites, it is statistically likely that when we categorize
blacks and whites by index (as in Tables 6.2 and 5.7), the average index
of blacks in each category is a little lower than the average index of
whites. Fortunately, this distortion has only a trivial impact on the
results I report. In Table 6.2, for example, the average difference
between black and white average index scores in each category is under
four points.
n215. The analysis showed that if black bar-takers had been distributed
regionally like whites, there would have been 308 blacks not passing the
bar after two attempts, compared to 306 in the actual data; this strongly
suggests that the analysis in Table 6.2 is not biased (or, if anything,
slightly understates the black-white gap).
n216. The Far West region in the LSAC-BPS definition includes
California, Hawaii, and Nevada. Wightman, User's Guide, supra note 133, at
14. However, California bar-takers account for almost all of that region's
total. For example, in 2002, the total number of people taking the
California bar accounted for 93% of test-takers in the Far West region.
See 2002 Statistics, B. Examiner, May 2003, at 6, 6-7.
n217. Calculations by author from LSAC-BPS Data, supra note 133.
n218. Klein & Bolus, supra note 212, at 15.
n219. In other words, consider two students who had similar academic
indices when applying to law school. One chooses to attend Vanderbilt, the
other chooses the University of Tennessee. If each performs similarly well
in law school, as measured by their law school GPA, this theory would
suggest that the University of Tennessee student would have a higher
expected chance of passing the bar than the Vanderbilt student. In Table
6.1, this would manifest itself in a negative coefficient on the Law
School Tier variable. Since the coefficient of tier is, in fact, positive,
this suggests that otherwise comparable students will do better on the bar
if they graduate from more elite schools, so long as they don 't get
substantially lower grades at the more elite school.
n220. I do not view this evidence as dispositive, since it is likely
that differences in academic indices between school tiers understate
actual differences in student ability. But the evidence of Table 6.1 at
least throws substantial doubt on the idea that students at lower-tier
schools have some intrinsic "edge" on the bar.
n221. One might argue that had I stuck with German (or lived in
Germany), immersion in a difficult environment would have given me a
better command of German in the long run than taking German at a local
community college. This might be true where withdrawal or disengagement is
not an option. This does not seem to be true, however, for blacks
benefiting from affirmative action. As we saw in Part V, the grade gap
between blacks and whites increases from the first to the third years,
despite the operation of other forces (such as taking fewer curved courses
and regression to the mean) that should tend to narrow the gap over time.
See also Rogers Elliott's analysis of the ""late bloomer' hypothesis, "
Rogers Elliott et al., The Role of Ethnicity in Choosing and Leaving
Science in Highly Selective Institutions, 37 Res. Higher Educ. 681, 695-96
(1996).
n222. Clyde Summers, in his 1970 critique of affirmative action,
articulated the problem with his usual clarity. Summers, supra note 136,
at 392-93. Thomas Sowell articulated the mismatch problem as well and
probably played the leading role in getting the idea into general
circulation. See Thomas Sowell, The Plight of Black College Students, in
Education: Assumptions Versus History 130, 130-31 (1986); see also Paul T.
Wangerin, Law School Academic Support Programs, 40 Hastings L.J. 771, 779
(1989).
n223. For the relation between stress and learning, see B.A. Glesner,
Fear and Loathing in the Law Schools, 23 Conn. L. Rev. 627, 635 (1991).
For the relation between low performance and stress, see Alfred G. Smith,
Cognitive Styles in Law School 125 (1979) and Robert Stevens, Law Schools
and Law Students, 59 Va. L. Rev. 551, 656 (1973).
n224. See Steve H. Nickles, Examining and Grading in American Law
Schools, 30 Ark. L. Rev. 411, 431, 476-78 (1977); Michael I. Swygert,
Putting Law School Grades in Perspective, 12 Stetson L. Rev. 701, 702, 712
(1983).
n225. Linda Datcher Loury & David Garman, College Selectivity and
Earnings, 13 J. Lab. Econ. 289, 301, 303 (1995). Thomas Kane argues that
Loury and Garman 's graduation rate findings are due to the inclusion of
historically black institutions in the data set, since these colleges
traditionally "have low mean SAT scores but high graduation rates." Thomas
J. Kane, Racial and Ethnic Preferences in College Admissions, in The
Black-White Test Score Gap, supra note 143, at 431, 445. Kane's critique,
however, does not address Loury and Garman's hypothesis of GPA as a
function of the difference between a student's SAT score and the median
SAT score of the institution she attends. Loury & Garman, supra, at
300-01.
n226. Audrey Light & Wayne Strayer, Determinants of College Completion:
School Quality or Student Ability?, 35 J. Hum. Resources 299, 301 (2000).
n227. Elliott et al., supra note 221.
n228. Id. at 699.
n229. Id.
n230. Id. at 701.
n231. Id.
n232. Id.
n233. Id. at 702.
n234. Id. at 695.
n235. Cole & Barber, supra note 136, at 187-212 (2003) (discussing the
negative effect of academic mismatch on grades, self-confidence, and
career aspirations).
n236. Id. at 193-200.
n237. Id. at 208-09.
n238. Id. at 212.
n239. 1995 National Survey Data, supra note 152.
n240. The proportion of students who reported studying thirty or more
hours per week was 57.8% for blacks and 58.6% for whites, and the overall
mean value for blacks was slightly higher than for whites; neither
difference is statistically significant. Calculation by author from 1995
National Survey Data, supra note 152.
n241. We also found that student responses to the "class preparation"
question strongly predict grades in the first semester. Calculation by
author from 1995 National Survey Data, supra note 152.
n242. Stacy Berg Dale and Alan Krueger have completed a study with this
design using undergraduate students of all races matched for the schools
that admitted them. They were primarily interested in job outcomes, not
academic performance, but they found that attending more elite schools did
not produce higher payoffs in the job market. Stacy Berg Dale & Alan B.
Krueger, Estimating the Payoff to Attending a More Selective College, 117
Q.J. Econ. 1491, 1493 (2002).
n243. By "minorities," the authors meant blacks, Hispanics, and Native
Americans - the groups that benefit from preferences in Michigan
admissions. Lempert et al., supra note 2, at 399.
n244. Id. at 496-97. The authors found that law school grades and
entering credentials (an index of LSAT and UGPA) did not predict career
satisfaction at all. Id. Law school grades were positively associated with
income, but they explained less than five percent of the variation in
alumni income. Id. at 501. And entering credentials, according to the
authors, were actually negatively associated with future income once
proper controls were introduced. Id. at 478 tbl.31 (showing a correlation
of -.002 in Model 2A).
n245. "Indeed, we are confident that neither the white nor minority
graduates of schools substantially less prestigious than Michigan will do
as well financially as Michigan graduates, and we expect from the
literature on the legal profession that they will be less satisfied with
their careers." Id. at 503 n.74.
n246. My collaborators on AJD are Ronit Dinovitzer, Bryant Garth, Joyce
Sterling, Gita Wilder, Terry Adams, Jeffrey Hanson, Bob Nelson, Paula
Patton, David Wilkins, and Abbie Willard. We have been actively supported
by the American Bar Foundation, the National Science Foundation, the LSAC,
the National Association of Law Placement, the Soros Foundation, the
Access Group, and the National Conference of Bar Examiners.
n247. The LSAC provided the LSAT and UGPA of each person in our sample
for whom they had data (about eighty-five percent of all respondents), but
expressed the data in terms of standard deviations above or below the mean
for the entire sample. We therefore cannot determine any individual's
absolute LSAT score or UGPA; we can simply determine how each respondent
compared to others in our sample - which, for our statistical purposes, is
just as good.
n248. The self-reported data do seem to be fairly reliable. I say this
because we also asked respondents to tell us their undergraduate GPA, and
when we compared this with the data provided by LSAC (which was originally
collected from the undergraduate institutions themselves), the correlation
was .86.
n249. AJD actually includes two samples. The national sample includes
just under four thousand attorneys from eighteen primary sampling areas
who, in the aggregate, closely resemble the national population of new
attorneys in geographic distribution, job type, gender, and race. A
minority oversample added some six hundred black, Hispanic, and Asian
attorneys from these sampling areas, so that the two samples combined
include around four hundred respondents from each of these three major
racial/ethnic groups. All participants were selected from lists of persons
passing the bar in 2000 in the sampling areas. Of those located,
seventy-one percent participated in either mail, phone, or web survey
form. For more on the methods and the AJD sample, see Ronit Dinovitzer et
al., After the JD: First Results of a National Study of Legal Careers
89-90 (2004), available at
http://www.nalpfoundation.org/webmodules/articles/anmviewer.asp?a=87&z=2
(last visited Nov. 22, 2004). Those who are interested in further
information on the AJD data should conctact Paula Patton, CEO and
President of the NALP Foundation for Law Career Research and Education, at
ppatton at nalpfoundation.org [hereinafter AJD Data].
n250. There is an interesting prior question: do entering credentials
of law students have any long-term predictive value in the job market?
Lempert et al. claimed that an index of LSAT and UGPA was actually
negatively correlated with the future income of Michigan graduates. See
Lempert et al., supra note 2, at 478 tbl.31 (showing a correlation of
-0.002 in Model 2A). The AJD data shows that both LSAT and UGPA are
correlated with postgraduate earnings. Of course, these credentials are
highly correlated with the eliteness of the school students attend, so the
correlation may simply be capturing this eliteness effect. When we run a
regression similar to that in Table 7.1, controlling for eliteness, LSAT
(but not UGPA) is highly predictive of future earnings. AJD Data, supra
note 249; see also regression at http://www1.law.ucla.edu/<diff
> sander/Data%20and%20Procedures/StanfordArt.htm.
n251. I also ran the model without logging income; the results are very
similar, but the explanatory power of the model drops a little (as one
would expect) and the coefficients are harder to interpret. Moreover,
without logging, the influence on the model of those few people with very
large salaries becomes unduly great.
n252. The data in this table includes income from both salary and
bonuses.
n253. The measures of market area and school prestige have a
surprisingly low correlation of .243 for the AJD respondents. I therefore
believe that the high coefficient for market area is, for the most part,
not because those markets are dominated by high-prestige jobs, but because
of cost-of-living differences. For example, the living expenses for a
typical young attorney working in New York City are probably about 14%
higher than the expenses of a comparable attorney working in Chicago or
Los Angeles.
n254. About seventy-five percent of respondents specified a GPA; many
of the nonrespondents came from law schools that do not grade on a
standard 4.0 scale (e.g., Yale, which uses "low pass," "pass," "honors,"
and "high honors").
n255. When one is attempting to compare outcomes for several mutually
exclusive groups (like men and women; north, south, and west; etc.), one
leaves out one group (usually the numerically largest group), and that
provides an implicit "base" for comparison against all the others. Whites
are the excluded group in this model for racial comparisons; women are
excluded for gender comparisons.
n256. The variable "Other Race" is not a very helpful one. It includes
American Indians, multiracial persons, and people of various races who
declined to identify themselves racially.
n257. This argument makes sense in terms of economic theory. I say in
the analysis of bar results in Part VI that going to a more elite school
and getting low grades had the net effect of increasing blacks' chances of
failing the bar; indeed, it was as if one had lopped over one hundred
points off the entering credentials of the typical black student in
predicting her bar performance. See supra Table 6.2. If the bar measures
something about future job performance that employers value, then a market
operating with perfect information should attach lower value to a more
elite graduate with bad grades than a somewhat less elite graduate with
higher grades.
n258. In the actual data, the "top ten" schools had a mean reported GPA
of 3.42 in our data, while ten schools pulled from the middle of the
distribution had a mean reported GPA of 3.23.
n259. See Klein & Hamilton, supra note 123; Korobkin, supra note 124,
at 403, 405-07; see also David E. Rovella, A Survey of Surveys Ranks the
Top U.S. Law Schools, Nat'l L.J., June 2, 1997, at A1; M.A. Stapleton,
Push Is on for Unranked Guide to Schools, Chi. Daily L. Bull., Jan. 10,
1997, at 3.
n260. This is hardly an ideal measure. We don't know the actual mean
GPAs at particular schools, and the GPAs we do have are only from those
who passed the bar, who participated in our survey, and who answered the
question on GPA - all effects that probably bias the mean upward. In
addition, the sample sizes for a few schools were small. However, the
limitations of this measure are very different from (and do not overlap
with) the limits of using raw GPA. So, if similar effects come from this
measure, it serves its purpose of providing an effective check.
n261. I computed rankings for individual law schools by averaging two
other rankings: first, the school's academic reputation among other
academics, as measured by U.S. News & World Report in 1997 (the last year,
I believe, that U.S. News & World Report published a complete listing of
this measure); and second, the school's rank in median student LSAT, as
measured by averaging the 25th percentile and 75th percentile LSAT figures
reported by law schools for the entering class of 2002-03. 2004 Official
Guide to ABA-Approved Law Schools, supra note 34, passim; U.S. News &
World Report, America's Best Graduate Schools: 1997 Edition 38-40 (1997).
There are many other ways to rank law schools, but the results of these
various methods tend to be highly collinear. With this ranking, I assigned
the top ten schools to Category I, ranks 11-20 to Category II, ranks 21-40
to Category III, ranks 41-70 to Category IV, ranks 71-100 to Category V,
ranks 101-130 to Category VI, ranks 131-160 to Category VII, and the
remaining schools to Category VIII, which is used as the "omitted"
category in the analysis.
n262. This is not a perfect measure of capturing the effect of
prestige; I suspect that no single approach can do the job. I do find that
a variety of approaches produce substantially the same results that I
report here - the trade-off of eliteness for lower grades is a negative
for blacks across much of the range of schools, but is probably a net
positive at the very top schools.
n263. It is particularly relevant to note that, in these more complex
regressions, the earnings premiums for blacks (7% to 9%) and men (3% to
5%) are still statistically significant; no premium or penalty is apparent
for any of the other ethnic groups.
n264. The parameter estimate for Tier 1 is 0.404 and for Tier 3 it is
0.194; the difference is 0.21, which corresponds to a 21% difference in
earnings.
n265. Like a number of the ideas that I thought were original at the
outset of this project, the effect I describe in this part - lower grade
performance offsetting the labor market value of a more elite school - was
anticipated and demonstrated by others. Linda Datcher Loury and David
Garman, using the National Longitudinal Study, find a very similar pattern
for college students benefiting from affirmative action. See Linda Datcher
Loury & David Garman, Affirmative Action in Higher Education, 83 Am. Econ.
Rev. 99 (1993). Along similar lines, see Dale & Krueger, supra note 242.
n266. The ABA, in its brief for the respondents in Grutter, argued that
"the reduction in minority enrollment that would result from an
abandonment of the policies embraced by Bakke, as evidenced by recent
experience in Texas and California, would undo much of what has been
accomplished in the last several decades." Brief of Amicus Curiae American
Bar Association at 20, Grutter v. Bollinger, 539 U.S. 306 (2003) (No.
02-241), available at
http://supreme.lp.findlaw.com/supreme_court/docket/2002/april.html (last
visited Nov. 22, 2004). Similar claims were made in the briefs submitted
by the American Law Deans Association and the AALS. See Brief of Amicus
Curiae American Law Deans Association at 5, Grutter, 539 U.S. 306 (No.
02-241), available at http://supreme.lp.findlaw.com/
supreme_court/docket/2002/april.html (last visited Nov. 22, 2004); Brief
of Amicus Curiae Association of American Law Schools at 3, Grutter, 539
U.S. 306 (No. 02-241), available at
http://supreme.lp.findlaw.com/supreme_court/docket/2002/april.html (last
visited Nov. 22, 2004).
n267. Grutter, 539 U.S. 306.
n268. Brief of Amicus Curiae Law School Admission Council at 9-10,
Grutter, 539 U.S. 306 (No. 02-241), available at
http://supreme.lp.findlaw.com/supreme_court/docket/2002/april.html (last
visited Nov. 22, 2004).
n269. Black applications to Boalt fell by 36% from 1996 to 1997, the
year Proposition 209 took effect. Black applications to all UC law schools
fell by 31% over the same period, while total white applications declined
by only 3%. Data Mgmt. & Analysis Unit, Univ. of Cal. Office of the
President, University of California Law and Medical Schools Enrollments,
http://www.ucop.edu/acadadv/datamgmt/lawmed/ (last visited Dec. 2, 2004).
n270. Evans, supra note 46.
n271. Id. at 602 tbl.15.
n272. This method could underestimate actual black admissions. It might
well be that blacks with, say, an index of 650 have more impressive
records of leadership, community service, or other qualities than do
whites with an index of 650, because the black applicants with those
indices stand much higher academically relative to other blacks than is
the case with whites. Since schools take such matters into account at the
margin, we would expect blacks to have slightly higher admissions rates,
within any box of the grid, under a race-blind system.
n273. See Evans, supra note 46, at 609 tbl.17, 612. Note that this
figure, unlike some cited in Part II, includes the historically black law
schools.
n274. Linda F. Wightman, The Threat to Diversity in Legal Education: An
Empirical Analysis of the Consequences of Abandoning Race as a Factor in
Law School Admissions Decisions, 72 N.Y.U. L. Rev. 1, 2 (1997)
[hereinafter Wightman, Threat to Diversity].
n275. Wightman's article contained a parallel analysis calculating the
proportion of blacks who would be admitted to the schools they applied to
in 1991 if no racial preferences had been in effect. See id. at 6. This
second approach produces more catastrophic results (which have received
far more attention), see id. at 14-18, but these results are nonsensical
for the reasons discussed at the beginning of this Part.
n276. See id. at 22 tbl.5.
n277. This claim is based on a comparison of Evans, supra note 46, at
582 tbl.3, 599 tbl.12 and Wightman, Threat to Diversity, supra note 274,
at 22 tbl.5.
n278. Linda Wightman, The Consequences of Race-Blindness: Revisiting
Prediction Models with Current Law School Data, 53 J. Legal Educ. 229, 229
(2003) [hereinafter Wightman, Race-Blindness].
n279. Note that the black proportion of total applicants did not
improve as dramatically, since the numbers for other nonwhite groups were
rising too, but the white number is important because it shapes the size
of the preference.
n280. The 2001 data is from the LSAC's National Statistical Report,
which has slightly higher total numbers than Wightman - Wightman does not
present enough data in her article to make direct comparisons possible.
n281. See Wightman, LSAC-BPS, supra note 133.
n282. Black graduation rates and bar passage rates would still be
somewhat lower than white rates in a race-blind system, simply because the
average credentials of blacks (in the system as a whole, not at individual
schools) would still be lower than those of whites. But something like
three-quarters of existing disparities would disappear.
n283. Twenty-nine percent of this group passed the bar within five
attempts. Calculations by author from LSAC-BPS Data, discussed supra note
133.
n284. See supra Part II.
n285. For data on enrollment by race at ABA law schools, see Am. Bar
Ass'n, Minority Enrollment 1971-2002, supra note 10. My attrition
statistics compare black first-year enrollment in 1991 and 1999 with
third-year enrollment two years later.
n286. This data is compiled from the Bar Examiner, which publishes bar
passage statistics for the past year in each May's issue. The data is for
all first-time bar-takers in the summer and winter administrations for
1994-1995 and 2002-2003.
n287. See State Bar of Cal., Examination Results/Statistics at
http://calbar.ca.gov/state/calbar/calbar_generic.jsp?sImagePath=Examination_Resu
lts_Statistics.gif&sCategoryPath=/Home/About%20the%20Bar/Bar%20Exam
&sHeading=Examination%20Results/Statistics&sFileType=HTML
&sCatHtmlPath=html/Admissions_Old-Statistics.html (last visited Nov. 3,
2004).
n288. Calculation by the author from AJD Data, supra note 249.
n289. Calculation by the author from LSAC-BPS Data, supra note 133.
n290. Dinovitzer et al., supra note 249, at 73 tbl.10.1.
n291. According to AJD data, aid from law schools covered only 5% of
the law school expenses of Hispanics in the Class of 2000, but 14% of the
law school expenses of blacks. Id. The size of the Hispanic cohort
matriculating in law school in the fall of 2001 was equal to 3.4% of the
number of Hispanics graduating from college that year; the comparable
figure for blacks was 3.1%. See U.S. Census Bureau, supra note 11, at 191;
Am. Bar Ass'n, Minority Enrollment 1971-2002, supra note 10. And, in one
of the few available studies on this point, the median parental income for
Hispanic applicants to one major law school in 1997 was $ 31,000, compared
to $ 38,000 for black applicants. Sander, supra note 5, at 494.
n292. The "as a whole" qualifier is important. None of the empirical
claims applies to every black individually - indeed, we can empirically
demonstrate that there are exceptions. Some blacks are not direct
beneficiaries of preferences; some buck the odds and excel academically.
But since affirmative action policies treat blacks as a single group, we
can only sensibly analyze the aggregate effects of those policies by
examining consequences on blacks as a whole.
n293. Such goals, of course, would be floors, not ceilings; schools
should not limit their admission of black candidates who satisfy the
standards applied to other students.
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