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Law School Affirmative Action
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August 28, 2007, 04:00 AM
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Gail Herriot writes in the Wall Street Journal:

Affirmative Action Backfires Have racial preferences reduced the number of black lawyers?

BY GAIL HERIOT Sunday, August 26, 2007 12:01 a.m. EDT Three years ago, UCLA law professor Richard Sander published an explosive, fact-based study of the consequences of affirmative action in American law schools in the Stanford Law Review. Most of his findings were grim, and they caused dismay among many of the champions of affirmative action—and indeed, among those who were not.

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

No one claims the findings in Mr. Sander`s study, "A Systemic Analysis of Affirmative Action in American Law Schools," are the last word on the subject. Although so far his work has held up to scrutiny at least as well as that of his critics, all fair-minded scholars agree that more research is necessary before the "mismatch thesis" can be definitively accepted or rejected.

Unfortunately, fair-minded scholars are hard to come by when the issue is affirmative action. Some of the same people who argue Mr. Sander`s data are inconclusive are now actively trying to prevent him from conducting follow-up research that might yield definitive answers. If racial preferences really are causing more harm than good, they apparently don`t want you—or anyone else—to know.

Take William Kidder, a University of California staff advisor and co-author of a frequently cited attack of Sander`s study. When Mr. Sander and his co-investigators sought bar passage data from the State Bar of California that would allow analysis by race, Mr. Kidder passionately argued that access should be denied, because disclosure "risks stigmatizing African American attorneys." At the same time, the Society of American Law Teachers, which leans so heavily to the left it risks falling over sideways, gleefully warned that the state bar would be sued if it cooperated with Mr. Sander.

Sadly, the State Bar`s Committee of Bar Examiners caved under the pressure. The committee members didn`t formally explain their decision to deny Mr. Sander`s request for these data (in which no names would be disclosed), but the root cause is clear: Over the last 40 years, many distinguished citizens—university presidents, judges, philanthropists and other leaders—have built their reputations on their support for race-based admissions. Ordinary citizens have found secure jobs as part of the resulting diversity bureaucracy.

If the policy is not working, they, too, don`t want anyone to know. ...

As a result, there is now a serious gap in academic credentials between minority and non-minority law students across the pecking order, with the average black student`s academic index more than two standard deviations below that of his average white classmate.

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

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

Supporters of race-based admissions argue that, despite the likelihood of poor grades, minority students are still better off accepting the benefit of a preference and graduating from a more prestigious school. But Mr. Sander`s research suggests that just the opposite may be true—that law students, no matter what their race, may learn less, not more, when they enroll in schools for which they are not academically prepared. Students who could have performed well at less competitive schools may end up lost and demoralized. As a result, they may fail the bar.

Specifically, Mr. Sander found that when black and white students with similar academic credentials compete against each other at the same school, they earn about the same grades. Similarly, when black and white students with similar grades from the same tier law school take the bar examination, they pass at about the same rate.

Yet, paradoxically, black students as a whole have dramatically lower bar passage rates than white students with similar credentials. Something is wrong.

The Sander study argued that the most plausible explanation is that, as a result of affirmative action, black and white students with similar credentials are not attending the same schools. The white students are more likely to be attending a school that takes things a little more slowly and spends more time on matters that are covered on the bar exam. They are learning, while their minority peers are struggling at more elite schools.

Mr. Sander calculated that if law schools were to use color-blind admissions policies, fewer black law students would be admitted to law schools (3,182 students instead of 3,706), but since those who were admitted would be attending schools where they have a substantial likelihood of doing well, fewer would fail or drop out (403 vs. 670). In the end, more would pass the bar on their first try (1,859 vs. 1,567) and more would eventually pass the bar (2,150 vs. 1,981) than under the current system of race preferences. Obviously, these figures are just approximations, but they are troubling nonetheless.

Mr. Sander has his critics—some thoughtful, some just strident—but so far none has offered a plausible alternative explanation for the data. Of course, Mr. Sander doesn`t need to be proven 100% correct for his research to be devastating news for affirmative-action supporters.

Suppose the consequences of race-based admissions turn out to be a wash—neither increasing nor decreasing the number of minority attorneys. In that case, few people would think it worth the costs, not least among them the human costs that result from the failure of the supposed beneficiaries to graduate and pass the bar.

Under current practices, only 45% of blacks who enter law school pass the bar on their first attempt as opposed to over 78% of whites. Even after multiple tries, only 57% of blacks succeed. The rest are often saddled with student debt, routinely running as high as $160,000, not counting undergraduate debt. How great an increase in the number of black attorneys is needed to justify these costs?

A friend of mine wasted a decade of his life going to law school and working as a hospital orderly while flunking the bar exam nine or ten times before giving up. If he`d become a salesman out of college, he might have been making six figures by then.

For blacks, the 43% of black law students who never pass the bar exam represent a well-above average group who could have used their 20s to do something more productive.

Speaking of academic affirmative action, a reader writes regarding Barack Obama`s fluctuating personality:

I would be willing to bet a small amount of money that Obama`s book was an outgrowth of his college and grad school admissions essays rather than a reflection of reality and hence of cognitive issues. However, I also agree that if you do not take into consideration the fascinating warping of reality that the college admissions process engenders, he might seem like a basket case.

That makes a lot of sense. That reminds me of an earlier reader`s comment on Obama`s book:

Everyone who gets into Harvard Law School has to have The Rap.

They have to have the story of teen angst, commitment to healing the world, good deeds, and preferably a healthy dose of some sort of conflict in the real world that gave them some special insight into human nature that makes them unique and diverse. Not TOO conflicted, however, since a felony conviction will prevent you from becoming a lawyer.

In my class, a year after Obama arrived, there was The Photojournalist from Nicaragua, who saw human suffering and experienced Life and Death first hand. There was also The Fly Fisherman, a guy who graduated from college and fly fished across the USA for a couple years, hitchhiking, living in the wilds, experiencing Water and the Land closehand and coming to a more true and full appreciation of Man and Nature.

Obama`s autobiography is a book-length Harvard Law School Rap. It has the manufactured conflict, the manufactured struggling, the manufactured multiculturalism with a smidgen of Tragic Mulatto and Man Torn Between Two Cultures, etc. Of course no one in the admissions office ever challenges any individual`s Rap since no one has the time, energy or enthusiasm. Think of it the same way you think of a fifty word High Concept movie pitch, like those studio scenes at the beginning of The Player.

Having expanded his Rap with more local color to make his book, all he has done is dig himself a deeper hole of deceit. Harvard won`t fact-check student admission essays, but reporters will.

Let`s try to re-engineer the getting into the Ivy League process from Obama`s point of view. He wants to get into all these fancy colleges with affirmative action programs, such as Occidental, Columbia, and Harvard Law School. But is he really authentically African-American enough to get a boost from the Admissions Committee?

Although everybody talks about diversity in general all the time, the only kind of diversity that really interests white people are blacks. Look at the faltering Presidential campaign of Bill Richardson. He`s a governor, he has a resume a lot like the first George W. Bush`s, and he`s 3/4ths Mexican (the other 1/4th is upper crust WASP) and grew up in Mexico City for the first 13 years of his life. And nobody in the media cares because he`s not black like Obama.

If Obama was growing up today, he`d figure out that although the elite colleges talk about diversity as if they mean they`re lifting up out of the ghettoes the great-great-grandchildren of the slaves, the truth is that they`ve pretty much given up on urban African-American males who aren`t athletes, as — as Harvard`s Jamaican and Jewish Lani Guinier (who herself looks like the late Gilda Radner`s half-sister) has documented. Ivy Leagues blacks are increasingly West Indian or African or European or mixed race or all of the above. For example, when Princeton decided to boost their African-American studies reputation, they expensively raided Harvard for philosopher Anthony Appiah, who is the grandson of the famous 1940s British Chancellor of the Exchequer Sir Stafford Cripps. But, hey, he`s sorta black (via his Ghanian prince father), so that`s good enough!

But back then, Obama might well have worried that he wasn`t really "black" enough to impress the admissions committees. First, his Mom was white. Second, his Dad wasn`t the descendent of slaves, he was the son of a prosperous Kenyan landowner. Third, his Dad abandoned him as an infant and he was brought up by white relatives and a little bit by an Indonesian guy. (Now, you might think that Indonesia is really diverse, but, trust me, nobody in America cares about Indonesia at all.) Fourth, he was a preppie from paradise. Hawaii is one place where the one-drop rule of determining race doesn`t apply, so — horrors! — Honolulu Obama might actually think of himself more as being mixed than as being black!

So, you could imagine the thoughts going through his head when sat down to write his Columbia and Harvard Law application essays.

On the other hand, he really did walk the black activist walk, moving to Chicago for a few years to try to organize inner city blacks to get more goodies out of the government. And he has spent 20 years sitting in a pew at a leftist Afrocentrist church listening to the Rev. Wright stick it to whitey in his sermons. I`ve never seen much evidence that Obama, who spent his early 20s reading Nietzsche, believes in all that "I am the redeemer and the life" business. He`s pretty upfront about his having to join a church because blacks don`t trust ambitious atheists. And, he genuinely seems to get a major charge out of the racial exclusiveness and solidarity that he finds at his racialist church.