[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 

Combatants Over Affirmative Action in Admissions Await Law-Review Issue
That's Their Next Battleground


    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
      * [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)


   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.


  ...  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. ...



  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 

   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 

   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). 

   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. 

   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:


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 

   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 

   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 


   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 

  [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 

  [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 

   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).


   Table 2.1: Comparative Undergraduate Admission Cohorts at the University of
Michigan, Nonresidents Only, 1999

   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 
> 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.


   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


   Table 2.2: Comparative Admission Cohorts at the University of Michigan Law
School, 1999

   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 
> 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 

   * * *

  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 

   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

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 

   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.


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 

   * * *

  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 

   Table 3.1: Black-White Academic Indices at Tier 1 Institutions, 1991 

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 

   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 

   Table 3.2: Black-White Academic Index Gap in Six Groups of American Law 
Schools, 1991 Matriculants

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 

   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 

   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 

   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.


   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. 

  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 


   Table 5.2: Predicted Coefficients of Independent Variables Predicting
First-Year Law School Grades at a Cross-Section of Law Schools n171

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


   * * *

  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.


   Table 5.3: First-Year Grade Performance of Black Students

Decile   Proportion of Black Students in Each Decile Within Each Group of
   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


   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 

   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

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 

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


   Table 5.6: Relative Power of Alternate Predictors of Law School Graduation,

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 

   Table 5.7: Proportion of White and Black 1991 Matriculants Not 
Graduating, by Academic Index Level

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.

  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.


   Table 6.1: Relative Power of Alternate Predictors of Bar Passage, 1991-1996

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 
  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.


   Table 6.2: Bar Passage Rates in the United States for Whites and Blacks,

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 

   . 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 

   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 

   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 

   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 

   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

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
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 

   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

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.


   Table 7.3: Regression of Earnings of Attorneys Completing Second Year of
Practice, Using Raw GPAs

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>

   Table 7.4: Regression of Earnings of Attorneys Completing Second Year of
Practice, Using Standardized GPAs

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 

   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 $ 


   Table 7.5: Summary of Statistics on Young Black Attorneys, 2002-2003

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,
   *Tiers 1-3 account for approximately the top fifty ABA-accredited law
   **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.


   * * *

  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)

Year   Total Black Applicants   Blacks Actually Admitted   Blacks Admitted 
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

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 

   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.


  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 

   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 

   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.



   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 
(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 

   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. 

   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 

   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 

   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 

   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 

   n47. AALS Bakke Brief, supra note 39, at 26.

   n48. Boalt Hall is the law school of the University of California at 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 

   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 
(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 

   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 

   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 

   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 

   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 
&sCatHtmlPath=html/Admissions_Old-Statistics.html (last visited Nov. 3, 

   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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