The Volokh Conspiracy - Ayres and Brooks on Affirmative Action in Law Schools:

Over at Balkinization, Ian Ayres argues (and I agree) that Richard Sander's work on affirmative action in law schools has focused attention on the wrong issue: the problem with the current system of racial preferences is not that it leads to fewer black lawyers [or at least, I'm not confident Sander's proven that], but that a large percentage of blacks admitted to law school--mostly students who attended lower-ranked schools--will either never graduate, or never pass the bar. Previously, I've cited the statistic that 43% of entering black students fall into one of these categories, compared with less than 20% of white students. Ayres and his colleague Rick Brooks, in a forthcoming Stanford Law Review piece, come up with this complementary statistic:

On the first day of law school, we estimate that 42.6% of blacks entering law school had less than a 50% chance of becoming lawyers. (while virtually no whites students — .23% — were in this high risk category). These at-risk students predominantly attend low ranking law schools [Bernstein: which means at low-ranked schools, the statistic is well above 42.6 percent]. While Sander lobbies for a world where without affirmative action, where the top ranking law schools would become largely all-white, we consider a world where some of the African-American students attending lower ranking law schools would choose not to attend if they knew the real risks involved.

The problem is not so much that black students at elite law schools are being harmed by an affirmative action "mismatch," as Sander would have it, but that while the overwhelming majority of black students at elite schools succeed [update: in the sense of graduating and passing the bar], most black students admitted at the bottom two-thirds of American law schools will never become lawyers. [Update: Contra Sander's point about the effect of affirmative action on the number of black lawyers, a bottom-tier law school that admits ten black law students on an affirmative action basis, only two of whom actually become lawyers, is indeed increasing the pool of black attorneys, but at the cost of unfairly disrupting the lives of the other eight students.]

While the ABA and AALS congratulate themselves based on increasing the numbers of black lawyers, they neglect the carnage caused to people's lives who enter law school with a good-faith belief that the law school they are attending thinks they will succeed, while in fact admissions officers and law school administrators know that it is likely they will never become lawyers. Anywhere from one semester to three-plus years of these students' lives are wasted in a futile effort to become attorneys, while they could have been succeeding in some other field. The ABA won't accredit a law school that doesn't ADMIT what they consider to be enough black law students, but doesn't seem to mind that at many of these schools, most of the black students admitted won't become lawyers. It's a fraud, a travesty, and something that makes me very angry. If I were a class action attorney, I'd organize a group of former black law students admitted under these false pretenses and find a way of suing their law schools, the ABA, and the AALS for fraud or some other legal cause of action (how about, as an anonymous colleague suggested, a qui tam action for taking student loan money in a racket no more successful from a student point of view than fly-by-night hair colleges?) At the very least, law schools should inform admittees--whether admitted for reasons of race, alumni relations, or political reasons--with very low scores about the statistical odds that they will become lawyers.

On another note, I'd also do away with the requirement that practicing law requires passing the bar exam, which currently serves as a barrier to entry to blacks and others; but as long as the bar exam exists, law schools have an ethical duty not to admit students who they know are likely to fail it [update: I believe, in fact, that there is either an ABA or AALS rule that, in theory, requires laws schools to only admit students they expect to succeed]. I understand that there is a strong correlation between very low LSAT scores and bar failure. The ABA, of course, with its primary mission of cartelization of the legal profession, would rather have good affirmative action "numbers," than actually do something practical to make it easier to become an attorney.

	[David Bernstein, April 2, 2005 at 3:40pm] Trackbacks Ayres and Brooks on Affirmative Action in Law Schools: Over at Balkinization, Ian Ayres argues (and I agree) that Richard Sander's work on affirmative action in law schools has focused attention on the wrong issue: the problem with the current system of racial preferences is not that it leads to fewer black lawyers [or at least, I'm not confident Sander's proven that], but that a large percentage of blacks admitted to law school--mostly students who attended lower-ranked schools--will either never graduate, or never pass the bar. Previously, I've cited the statistic that 43% of entering black students fall into one of these categories, compared with less than 20% of white students. Ayres and his colleague Rick Brooks, in a forthcoming Stanford Law Review piece, come up with this complementary statistic: On the first day of law school, we estimate that 42.6% of blacks entering law school had less than a 50% chance of becoming lawyers. (while virtually no whites students — .23% — were in this high risk category). These at-risk students predominantly attend low ranking law schools [Bernstein: which means at low-ranked schools, the statistic is well above 42.6 percent]. While Sander lobbies for a world where without affirmative action, where the top ranking law schools would become largely all-white, we consider a world where some of the African-American students attending lower ranking law schools would choose not to attend if they knew the real risks involved. The problem is not so much that black students at elite law schools are being harmed by an affirmative action "mismatch," as Sander would have it, but that while the overwhelming majority of black students at elite schools succeed [update: in the sense of graduating and passing the bar], most black students admitted at the bottom two-thirds of American law schools will never become lawyers. [Update: Contra Sander's point about the effect of affirmative action on the number of black lawyers, a bottom-tier law school that admits ten black law students on an affirmative action basis, only two of whom actually become lawyers, is indeed increasing the pool of black attorneys, but at the cost of unfairly disrupting the lives of the other eight students.] While the ABA and AALS congratulate themselves based on increasing the numbers of black lawyers, they neglect the carnage caused to people's lives who enter law school with a good-faith belief that the law school they are attending thinks they will succeed, while in fact admissions officers and law school administrators know that it is likely they will never become lawyers. Anywhere from one semester to three-plus years of these students' lives are wasted in a futile effort to become attorneys, while they could have been succeeding in some other field. The ABA won't accredit a law school that doesn't ADMIT what they consider to be enough black law students, but doesn't seem to mind that at many of these schools, most of the black students admitted won't become lawyers. It's a fraud, a travesty, and something that makes me very angry. If I were a class action attorney, I'd organize a group of former black law students admitted under these false pretenses and find a way of suing their law schools, the ABA, and the AALS for fraud or some other legal cause of action (how about, as an anonymous colleague suggested, a qui tam action for taking student loan money in a racket no more successful from a student point of view than fly-by-night hair colleges?) At the very least, law schools should inform admittees--whether admitted for reasons of race, alumni relations, or political reasons--with very low scores about the statistical odds that they will become lawyers. On another note, I'd also do away with the requirement that practicing law requires passing the bar exam, which currently serves as a barrier to entry to blacks and others; but as long as the bar exam exists, law schools have an ethical duty not to admit students who they know are likely to fail it [update: I believe, in fact, that there is either an ABA or AALS rule that, in theory, requires laws schools to only admit students they expect to succeed]. I understand that there is a strong correlation between very low LSAT scores and bar failure. The ABA, of course, with its primary mission of cartelization of the legal profession, would rather have good affirmative action "numbers," than actually do something practical to make it easier to become an attorney.