Entry Four: What Would the Black Bar Look Like With a Reduction or Elimination of Law School Racial Preferences?
Perhaps one of the reasons that few legal academics have delved very far into the issue of law school racial preferences is the widespread assumption that, whatever the other costs and benefits of the system, admissions preferences are the only way to racially integrate the bar. The claim that has been repeated many times – and which figured prominently in the Grutter briefs — is that black enrollment in law school would drop 50-90% if preferences were abolished. Since a decline of that magnitude seems unimaginable, so does a serious questioning of admissions preferences.
In my research, I found that the usual method academics use to project admissions in a race-neutral world is seriously flawed. Most such projections assume that minority students will continue to apply to the same schools – and only those schools – if preferences disappear. But if preferences are large, and minorities (blacks in particular) take preferential policies into account in deciding where to apply, then it is necessarily the case that minority applications will overwhelmingly be rejected in a race-neutral world.
If one instead asks what proportion of the black applicant pool would be admitted to some law school under a race-blind system, one gets a much rosier result. A 2003 study by Dr. Linda Wightman (who headed LSAC’s research operations for many years) found that 86% of blacks admitted to law school in 2001 would have qualified for some law school under a race-blind system. That number has risen sharply over the past decade, because of a steady rise in the number of black applicants and a gradual but steady narrowing of the black-white credentials gap.
Now, recall that in my research I found racial preferences tend to systematically lower black performance in law school, black graduation rates, and black rates of success on the bar exam. Only 45% of entering blacks under the current system graduate and pass the bar exam on their first attempt; another 12% pass the bar on some later attempt. I estimate that the 45% figure would rise to 74% under a race-blind regime. If the pool of entering black law students shrinks a little, but their survival rate rises sharply, it’s not hard to see why we might well end up producing more, not fewer, black lawyers in a race-blind system. My best guess is that the total number of blacks passing the bar on their first attempt would rise about 22% in a race-blind system; the number passing after multiple attempts would rise 9%.
The emphasis here should be on the word “guess”. Obviously, no one knows what would happen to black interest in attending law school in a world without preferences. There might be a surge of interest in a law school world where blacks perform much better, have much higher chances of success on the bar, and dispense with any stigma from affirmative action. There could be an erosion of interest if blacks are faced with attending less elite schools or if many blacks view the end of preferences as a signal that they are unwelcome. I would hope that my findings, and those of other researchers, would reassure black applicants that going to less elite schools is an excellent career move for them, but of course no one knows. My simulations make the neutral assumption that the total volume of black applications won’t increase or decrease.
The stories I’ve read about my article almost invariably cite the “9% increase in black lawyers” projection and infuse it with an air of artificial precision. That’s unfortunate, though perhaps inevitable given the exciting aura such a claim carries with it. I’m really trying to make two other points. First, the end of preferences clearly no longer implies a massive hit to the production of black lawyers. The claims of a 50-90% decline were misleading nonsense. (My most vocal critics are now suggesting a 25-35% decline.) I will defend my 9% increase as a much better guess, but the important point is that the range of debate has shifted.
Second, there can be no question that in a race-blind system, the black bar would be healthier in a number of ways. The proportion of practicing black attorneys who have failed the bar at least once would fall from 22% to less than 10%, and black scores on bar exams (even for those who pass the first time) would be dramatically higher. The median earnings of black attorneys (at least for the early career years I have measured) would be significantly higher, and blacks would be distributed across job sectors in a way much more similar to white patterns. And of course, many, many fewer black law students would spend years earning a degree that failed to gain them admission to the profession.
With all this said, I am not at all convinced that a total elimination of preferences is the best way to go. It’s certainly the cleanest solution, and perhaps the only one that policy-makers could legislate. But I think there are a variety of alternatives worth exploring. Consider, for example, what I call the “4% solution.” Suppose that all law schools agreed that, if they use racial preferences for blacks, they would not apply those preferences to more than 4% of the class. Schools would of course continue to admit all blacks who qualified without preferences, so the 4% would be a floor, not a ceiling.
The beauty of the 4% approach is that it breaks the cascade effect. The top ten law schools would presumably fully use the 4%, and would thereby preserve more racial diversity at the top than we would have (at least initially) in a race-blind system. But the next tier of schools would now have many black applicants who formerly went to top-ten schools; they would be significantly less reliant on preferences. In the third tier and below, preferences would be nearly irrelevant. Enough blacks would have shifted down-market so that schools would have very substantial black enrollments (often larger than current black enrollments) with minimal or no preferences.
This approach has several advantages. It effectively confines the aggressive use of preferences to the top tier of schools, where the academic mismatch is most benign in its effects. It blunts the fear of those who believe that the most talented blacks will shift to other fields if they are unlikely to attend top-ten schools. It mitigates the diversity impact on the most elite classrooms, and provides some reassurance that pipelines of talented blacks into prestigious clerkships and legal academia remain open.
My hope is that, by developing some rough consensus on how to model the systemic effects of affirmative action, we can have a much richer dialog and can identify and test possible compromises, like the 4% solution, that break the ideological logjam.
***Thanks to readers who have sent me comments and questions. On Monday, I’ll respond to a number of these.***
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