Gail Heriot has an excellent op-ed on the subject in the Wall Street Journal. As I've emphasized in previous writings and speeches, it's a real problem when the consistent focus of affirmative action in law schools is on how many black students are admitted, with little if any attention paid to how many of the admittees actually succeed in becoming lawyers.
Interestingly, the ABA, which just last year was on the offensive in passing new guidelines requiring all law schools to engage in significant racial preferences, has now proposed new accreditation rules that threaten the viability of many lower-tier law schools, including several historically black law schools. The ABA is acting under pressure from the Department of Education, which has grown weary of the ABA mandating all sorts of requirements for law school, but ignoring what would seem to be the most significant mandate: that the schools actually succeed in preparing their students for careers in law, not least by ensuring that they actually pass the bar.
Isn't it time the ABA just gave up, and acknowledged that as a body completely captured by the perceived interests of the profession it's supposed to be regulating, is in no position to serve as a neutral gatekeeper for law school accreditation?
Meanwhile, my antenna have picked up some subtle new signals from the ABA bureaucracy, that it is less interested in enforcing universal norms on schools that find its preference policies counter-productive, and more interested in finding ways to get all sides together to cooperate in increasing transparency and improving the prospects of minority law students. Unfortunately, I doubt this shift would last if the Department of Education lays off, as it will almost certainly do if a Democrat wins in '08.
UPDATE: The ABA's new proposed rules have apparently been "withdrawn for further study" until February 2008. Thanks to Lee Otis for the pointer.
Also, The Chronicle of Higher Education reports that
The U.S. Commission on Civil Rights plans to issue a report today calling for federal and state officials to require law schools to disclose detailed information about their use of affirmative action in admissions and the short- and long-term success of the minority students they enroll.
The report also urges the section of the American Bar Association that accredits law schools to drop a requirement that law schools seeking accreditation demonstrate a commitment to diversity, with a majority of the commission's members arguing that such a requirement infringes on the schools' academic freedom. Among its other recommendations, the report calls for the National Academy of Sciences or some other entity to finance research on the effect of law schools' affirmative-action policies, and it urges state bar associations to cooperate with such studies.
"Mismatch in Law School", by JESSE ROTHSTEIN (Princeton University - Department of Economics) and ALBERT YOON (Northwestern University - School of Law).
Here's the SSRN page, and the abstract is:
An important criticism of affirmative action policies in admissions is that they may hurt minority students who are thereby induced to attend selective schools. We use two comparisons to identify so-called mismatch effects in law schools, with consistent results. Black students attain better employment outcomes than do whites with similar credentials. Any mismatch effects on graduation and bar exam passage rates are confined to the bottom quintile of the entering credentials distribution, where selection bias is an important, potentially confounding factor. Elite law schools' use of affirmative action thus does not appear to generate mismatch effects.
Not that law school should be a three-year bar prep course, but students should at least be exposed to IRAC early on, rather than be forced to learn it in just two months.
And I believe in affirmative action to the extent it keeps elite institutions from being minority-free zones. First, you can't learn another's point of view when you don't run across any of the others. Second, your schoolmates form a lifelong network.
But, in any case, your law-school exposure is to minority aspiring attorneys. Considerably more like you than any of the minority in question whom you are likely to represent or work with in some other fashion.
What I've seen suggests that blacks who attend "elite law schools" do rather well in both graduation and bar passage rates. But at the lower-ranked law schools, the statistics are a disaster.
The good news and the bad news are related, because the lower ranked schools have to dip further into the pool to satisfy affirmative action goals/requirements because the higher ranked schools are recruiting students whose statistics are more in line with those prevalent at the lower-ranked schools.
There was an article that came out in the North Carolina Law Review, about a year ago, which described the extreme affirmative action measures used by law firms. As you go up the scale (from undergraduate admissions, law school admissions, and law firm hiring), the use of affirmative action becomes more prevalent, more decisive, and more mechanical.
True on both counts. However, black law students at elite schools still fail the bar at four times the rate of their white peers (first time), still are more likely to be in the bottom ten percent of the class, and still have a much higher drop-out rate. It is not much of a problem because four times a really small number is still a really small number.
As you note, there is a focus on the elite schools. IIRC, only 20 to 30 black college grads apply to law schools with the stats (GPA and LSAT) that make them competitive for the elites. The usual argument against ending affirmative action (as practised today) is that elite schools would be lily-white. The solution that is never really discussed is to allow elite schools to use racial preferences, but discourage lower-ranked schools (third and fourth tier) from taking black students whose GPA and LSAT scores indicate that they are unlikely to pass the bar.
There is something entirely perverse in the current system, whereby black law students spend three years of their life in law school, and more tuition money than white students (as of 1994, they graduated, on the average, with about 50% more debt than their white peers), although they are unlikely to pass the bar, simply so that white students may learn in a more diverse environment. The beneficiaries would not seem to be black students....
Fine, let the Whittiers be lily-white. But realize that lower tier schools attrit (if that's a word) their weakest students after 1L. Presumably any who survive this process can pass the bar, and those who would fail the bar anyway only have a year's worth of debt to eat.
Their bar passage rates clearly disagree. Which is the entire point of this exercise.
Do more white students take bar prep courses than black students? Do black students have the same time of support structures that many white students have (i.e. parents that are lawyers, access to study groups or school provided aid, etc)? If not, why not? and could the school help by providing additional support? Do black students have to take more time off of school to take care of family than white students? (there are studies out there that show this is true for minorities in udergrad...no cite b/c i read these a few years ago and don't have access to a database of articles)
The most qualified people should be accepted to law school. If that means the class is 99% asian, so be it. If it means it is only .0001% african american, so be it (but I am quite sure it would be higher). Anything else means a less qualified person gets accepted in the place of a more qualified person, and solely due to race. I can't imagine anything which would turn a non-racist into a racist more quickly than that. Why breed long-term racial hatred and animosity (which in younger generations is diminishing year after year) for short, individualized near-term payoffs?
It's hard to take your post seriously when you got this line in there.
Yes. If it doesn't disband altogether, it should at least stop pretending to be the voice of the legal profession and stop meddling in things in which it has no expertise (judges, school accreditation, etc. The average lay person thinks that the views of the ABA represent some kind of neutral "professional judgment" instead of a bunch of hacks playing politics.
Man, can anyone seriously argue that the three years of hoops they put law students through NOW really produces good lawyers? Isn't it painfully obvious that law school provides precious little training to prepare would-be lawyers for the typical tasks that make up the bulk of most law practices, that a reasonably smart individual could more efficiently learn these skills (in the particular areas in which he or she wishes to practice) without the privilege of paying through the nose and going into hock to attend three years of law school, and that the primary purpose of the Unauthorized Practice of Law statutes is to limit the numbers in the profession and raise the prices that lawyers can demand for legal services? Law, which especially in a democracy should be the province of all, has been made into the capital of the initiated few. What a flagrant violation of the First Amendment and the right to earn a living to say that a person who has not attended three years of law school and passed a bar exam (a rigorous time- and money- consuming test that nevertheless measures little other than test-taking ability) cannot give legal advice and be compensated, regardless of how knowledgeable that person has made himself by his own study of the law.
Many say there are too many lawyers. I say there are too few.
I must assume this question comes from a product of one of those "elite" schools mentioned above. I guess I attended an "ordinary" law school (at a large state university). No training I ever received in life carried over more directly to the target profession.
Albert and I have written a second paper on the mismatch hypothesis that should be more accessible to lawyers and legal academics. The title is "Affirmative Action in Law School Admissions: What Do Racial Preferences Do?". It is SSRN paper number 983027 and is forthcoming in the Chicago Law Review. If I have the HTML right, this should be a link to it.
Here's the abstract:
In short, there's very little evidence for strong "mismatch" effects, or for the sort of "cascade" effect that DavidBernstein alludes to in his Comment #4. Affirmative action does lead to a cascade, as students who would be admitted to second-tier schools are admitted to first-tier schools and the second-tier schools must dig deeper to find minority students. But there's little evidence that this harms anyone's chance of success, and strong evidence that affirmative action dramatically increases the number of black lawyers.
Let's see. You're right, we should get rid of affirmative action. Before we do that, we need to do the following:
1. Abolish legacy admissions.
2. Abolish inheritance (intestacy and via will).
3. Remove all identifying information from job applications and higher admissions applications.
4. etc. etc. etc.
Of course, the individuals who are so set against affirmative action could, instead, be proposing measures to make it obsolete (better education in K-12 for starters), but that's not the point. It never is. Remember- you're not against minorities, you're against helping minorities. Because when you help them, you can hurt them. Or make them feel bad. When a white person gets a job they're underqualified for because of 'connections', that's business. But when a minority gets a job... that's unacceptable.
Heckuva post, DavidBernstein.
SSRN is apparently down now, but I wonder if your paper considers a scenario in which of 100 black students who wouldn't have been admitted to law school at all but for AA, 80 never become lawyers as a "cost" or a "benefit." You've created 20 extra black attorneys, but you've wasted the time money and energy of 80 others who could have been doing something productive (and the other 20 could have been doing something else worthwhile, too). I'll venture that this should be considered, net, a "cost."
The amount of money spent at them per student who passes the bar is preposterous. Who wants to retain a lawyer who couldn't make the cut for a 1st or 2nd tier school anyway?
So let's focus on law schools. The Civil Rights Commission is proposing that law schools reveal the statistical likelihood of ultimately passing the bar for students with given LSATS and GPAs. If and when that information becomes available, we should get some very interesting data on revealed preferences regarding risk-aversion or lack thereof among potential beneficiaries of affirmative action.
Fair enough, let's stick to law schools. Again, I think this is a complicated issue. I agree that the problem of placing students in a school where they will be unable to compete is a real one, as is the problem of admitting students to law schools that have little chance in passing the bar.
Still, whenever I hear the "it's bad for African Americans," many of the points Loki13 makes go through my mind. And if we were to poll African Americans in general, or those considering law school, about AA policies for law schools what do you think the the results would be?
I don't think the results of such a poll should be dispositive on policy. And I know that a (small) fraction of African Americans oppose AA (for law schools, and otherwise). I just get a bit nervous when a (mostly) white folks start telling (mostly) black folks, "what you think is good for you really isn't." Maybe the (mostly) white folks have a point, but one might want to take care in such a situation.
I think my post is directly on point. You hope to engage in an academic dispute on this topic. I believe that this is impossible as your premise is incorrect and misleading.
If you wish to make the argument that 2+2=6, I have to first accept that 2=3, which I do not. The thin veneer of respectability that you are placing on this argument is incorrect. The original 'affirmative action' was put into place by elite ivy league schools when they moved away from straight testing requirements to a 'well rounded application' in order to limit the number of jews that were allowed into Harvard.
The history of admissions processes have been one of maintaining the powerbase of those who currently have the power to the exclusion of those without it. The original argument against affirmative action was entirely racist. Then it became an issue of 'fairness' (but what about the deserving white guy?). Now the opponent are attempting to cloak their arguments in *gasp* actual concern for the minorities that they're denying a chance to?
I don't accept the premise.
Look at the post above... the *worst* thing that ever happened to Clarence Thomas is affirmative action? Yeah, I'm sure that's true. Every day that he sits on the bench, I'm sure he rues the opportunities he received. I'm positive his kids in private school hate the fact their father had those opportunities. I'm sure his grandchildren, who will now benefit from inherited wealth created by those opportunities, will also believe that affirmative action was the worst thing that ever happened to Clarence Thomas.
Affirmative action encompasses many things- and I think an argument could be made that of the things I listed (such as inherited wealth- allowed by government statute, and sheer nepotism/connections/legacies) the majority population in this country benefits far more than the minorities do. If we dismantle those, then we can dismantle the other affirmative action programs as well.
That said, I think it would be telling evidence for the current policies if African American students continue to matriculate at particular schools even after learning that statistically their odds of success based on their credentials are poor, and evidence against them if the opposite occurs. What people do when they have full information and it's their own time and money at stake, is telling.
Several years ago a summer clerk told me that she asked at the admissions office what qualifications a white applicant had to have to get into UT law school. They were scandalized that anyone would even ask such a question.
Fair enough again. I would be in favor of disclosure.
I might favor other sorts of disclosures, including but not limited to those involving legacy admissions. Along these lines, I think you are not quite getting Loki13's arguments. It's not that all opposition to AA is racist. His point -- which, again, I agree with -- is that there are a variety of other institutions in society which give more privileged groups advantages that arguably are unfair. And if one is going to subject AA to certain types of scrutiny, it's fair to ask, "OK, but what about . . . ?"
I am not ssure we're in total disagreement. I am not in favor of 'hard quotas'. i do not believe that a person who is completely unprepared for something should be admitted to a program to fulfill a magic number. In the extreme example, an illiterate black man should not be admitted to a JD program so that they can reach a certain percentage.
That said, let me turn your example around- if 'circling the wagons' does a disservice, what does 'attacking the weakest link' say about those who so employ that tactic? IOW, with all the various issues flying around out there, whose water are you carrying by attacking the weakest link? Those who attack the weakest link are trying to make a statement about affirmative action in general, just as those who cite 'Heckuva job Brownie' are trying to show that 'connections' are not the best way to give jobs.
Perhaps you should frame your issue a different way- how can schools *more effectively* increase diversity within their ranks, if not through affirmative action? Do they have programs within their institutions to enable success for students once they are enrolled?
You are right--the abstract doesn't address your point, but the paper does. A non-SSRN (but otherwise identical) version of the paper is here.
We did consider the scenario you suggest, though we don't know whether it should count as a cost or a benefit. But lets back up a second: I think it is important to be clear, as many discussions of the high black dropout rates at lower-tier schools are not, that the students who drop out at high rates are students who, by and large, would not be admitted to any law school at all in the absence of affirmative action.
So, consider such a student. Without preferences, she would not be admitted to any law school. Because of preferences, she has the opportunity to attend a third- or fourth-tier school. We can predict based on her entering credentials that she has, say, a 60% chance of graduating and passing the bar. It is very hard to say whether we have done her a favor by admitting her--a lottery ticket with a 60% chance of paying off may be worth buying or it may not, depending on what her other options are. I think we should provide her with much more information than we currently do about what her chances look like. But I don't see how we can say confidently that she has been harmed by the opportunity to attend law school. And I would think that someone with libertarian sympathies would be inclined to presume that she has not; after all, she is free not to attend if she thinks the chance of failure is too high.
Perhaps I'm being illogical in my thinking, but even if the arguments posited by Gail in the WSJ are sufficient, I wouldn't turn down an offer from a t10 school. The expected benefits outweigh the expected costs. Sure, it might be the case that I'll perform poorly in my class. In fact, I might even fail the bar a few times. But, it is clear that the job prospects , resources, and potential connections coming from a t10 are vastly greater than a T2, 3, or 4. I mean, if you were in my shoes (black guy out of the inner city)would you turn down an offer from a Harvard or a Yale, even if you might finish last in the class or fail the bar a few times? And let's assume, for the sake of argument, that you are aware of the risks (the arguments posited by Gail) with choosing a t10 over a T2, 3, or 4.
With disclosure, I think you're right. With the current wave of fog coming from the law schools, in which they deny that they are giving any significant preferences to URM students, I would likely accept that at face value. And what if the odds weren't 60%, (which is actually higher than they are overall for black law students!), but 30%, which is likely the case at some schools?
Anyway, to determine whether 30% or 60% is a cost or benefit, we have to think about opportunity costs. Sure, we have a strong interest in having more lawyers from underrepresented groups. But the same is true in law enforcement, teaching, medicine, advertising, business, etc. Is there any reason not to assume that a black student who wouldn't be admitted to law school wouldn't do something else productive?
Looking at the labor market as a whole, law school AA policies aren't expanding the pool, just redistributing the pool. Are we confident that having more black lawyers is more important than having more black doctors, or teachers, or scientists? Even if we are, is there a point where the costs to those who bear the brunt of the social policy (the students who spend 1 to 3 years in law school, but never become lawyers), exceed the gains?
I understand that you are responding in part to how Sander framed the issue, and his claim that there would actually be more black lawyers without AA preferences. My point is that even if Sander is wrong about that, it hardly resolves the issue.
Well, sure. Lots of people oppose affirmative action even under the assumption that it helps African Americans. But Sander's original contribution to the debate is to suggest it harms African Americans, so if you abandon that hypothesis, you abandon Sander.
University of Michigan Law School in the late 90s. At the time it was number 5ish.
The really old profs taught law, I had five total that did including White of UCC fame. All the rest of the time it was "In my universe this should happen" and "If I was an observer circling the earth", and "What is the best policy".
My personal fav was first year the old timers mostly taught, and they had exams on legal stuff. The school started the "MAP" program where each black and hispanic got a pretest exam on the same subjects and a personal counseling session with the prof to tell them how to score better.
I don't see any reason to presume, knowing nothing about a student other than that she is black and has low LSAT scores, that she is more likely to be successful at med school than at law school. So you are right: In a group where we predict a 30% success rate in law school, some of them would be successful in med school if they were not permitted to attend law school. But you seem to be assuming that the counterfactual is a 100% success rate in some other occupation. I don't see where you get that--after all, these are students who think that the best thing for them is to go to law school. Perhaps they are wrong, but I still think that we owe some respect to their assessment of the issue.
Another thing not to overlook: It isn't as if people who attend law school but do not pass the bar are condemned to the poorhouse. A JD (or even a year or two of law school) can be a useful occupational credential even without bar membership, perhaps more so than are similar credentials in other fields. It isn't inconceivable to me that someone could decide to attend law school even knowing that she had zero chance of passing the bar.
Again, I'm not arguing that law school is necessarily beneficial for these students. I'm arguing that we don't know, and that there isn't much basis for presuming that it is harmful. So why not let them decide? Yes, we should provide information -- the LSAC should publish tables of the fraction of law school matriculants who eventually graduate and who eventually pass the bar exam, by LSAT score and undergraduate GPA. But I can't see how the fact of low success rates among affirmative action admits leads any further than that.
A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
Most white people (and Asians) are not legacy admissions or children of prominent people, and bringing up those categories doesn't exactly make non-members MORE sympathetic to arguments favoring affirmative action. It just makes us think we're boxed in from both directions.
I agree. The libertarian, free-market argument -- "let the recipients of AA decide if it's worth it or not" -- cannot work in the absence of meaningful data upon which to make that decision.
But I also worry that the proponents of the current state of affirmative action trot out this concession as a rhetorical device when they're faced with stats about actual success rates, and then turnabout and fight against open access to statistical information when it really matters. I hope I am wrong. But consider how the California State Bar was vehemently lobbied to deny access to important data that would shed light on these issues.
I think we agree on disclosure, but not on whether students are currently making informed choices now. How could they be, when law schools blatantly lie about their policies?
That's the point. Most of the rhetoric is anti-affirmative action NOT anti-legacy or anti-nepotism or anti-child of a rich or famous person. That begs the question of why is there only attempts to end AA when there are other things out there that have the same effect on white people that no one has attempted to ban, especially when the rhetoric applies equally to both?
Most people succeed at a level they're qualified at.
For example, someone who might not ever pass the bar could be an extraordinarily good owner of an insurance brokerage.
Young people are vulnerable to bad advice. Such advice is readily available to minorities. It's of the form "you can be anything you want". Well, you know, sometimes that's not true.
So while nothing is 100%, it is correct to assume that people who have enough on the ball to actually be considered for acceptance to law school, such people will succeed at something else if they're denied the opportunity to attend law school.
1) Methodology. Questions the Sanders attempt to model each step in the process - focuses only on overall outcomes: graduation, bar passage, employment.
2) For well-prepared students, blacks do worse than similarly credentialed whites in graduation and employment, but this effect is small.
3) For less well-prepared students, the black-white gap in graduation and bar passage is larger.
4) For every level of preparation, blacks do better than whites with similar credentials in getting good first jobs and high salaries. This effect is very pronounced at the highest level of credentials.
5) Because the number of students admitted to *any* law school with the lowest credentials is much larger among blacks than whites, the authors posit there is a mystery variable that makes these white students stronger than blacks with similar LSAT/GPAs.
6) In the absence of affirmative action, the number of blacks entering law school would drop by more than half. The effect on the top schools would be enormous - the number of blacks students would drop to near zero. The number of black students at schools that enroll the top 50% of law students nationwide would drop 79%.
7) Since black student's numerical credentials are worse on average, even in a race-blind system, black students at a particular school will still have worse credentials than whites (though the effect will be much smaller than with affirmative action).
8) The effect of race blind admissions would be large decreases in blacks admitted to law school, graduating, and passing the bar.
9) The percentage of black students who eventually pass the bar would go up substantially in a race blind system, but the actual numbers would be way down. This is because one of the principal results of a race-blind system is that large numbers of blacks at the bottom of the credential scale would no longer be able to go to law school at all.
10) Conclusions (other than those stated above): There is some modest mismatch effect, though it has very little effect on blacks who currently (with preferences) attend the elite schools. The large percentage of blacks at lesser-ranked schools who fail to become lawyers are not "victims" of affirmative action, but simply those where schools "took a chance" on them and the gamble did not pay off.
My editorial summary: Both Sanders and Rothstein/Yoon agree that blacks in law school perform significantly worse than white students in every measure except employment. However, Sanders argues this effect is spread out throughout all law schools (i.e., even blacks with relatively high scores are hurt by preferences by being "mismatched"); Yoon/Rothstein argue that to the extent anyone is "hurt" by preferences, it is only blacks and the bottom end of the credential scale whose graduation and bar passage rates are low. Yoon/Rothstein do not concede that this is a harm, rather they argue it is a legitimate gamble. Finally, Yoon/Rothstein do not address the enormous preferences practiced by law firms in their hiring, which seems the most plausible explanation for the significant overperformance by blacks (relative to whites with the same credentials) in employment.
Apologies to Yoo and Rothstein if I misunderstood anything - I was working fast. But I know some don't have the time to read the whole article today, and this might be helpful.
My problem is although these white advantages may be unfair they are not unconstitutional. Selecting someone because of their race seems to me so basically unconstitutional that I can never understand those who say it is OK because it is for a good cause. If the cause is good enough pass an amendment.
What am I missing? I read explanations by good intelligent people that say just ignore what is in the constitution because it is not convenient.
That the California bar, and law schools in general, routinely provide all sorts of detailed data about applicants, bar passage, etc., but refuse to provide it by race, strikes me as highly suspicious. Obviously, this is not evidence of anything, but it suggests there is something there the schools and bars are not proud of.
Anecdotally, I will add that I am a member of the alumni admission group for my undergrad alma mater (a prominent school). Normally, they are nearly obsequious in providing any assistance the alumni involved in this work ask for. When I emailed asking for admissions data broken down by race, they forwarded my request to a PR flack who denied it. Very strange behavior.
Somehow, I don't see this happening.
As a former hiring partner, I can personally attest that this is the case and can verify second-hand that it's the case at every large law firm I spoken to. I was surprised that the Yoo/Rothstein article didn't address this fact, as it's widely known, easily confirmed, and critical to assessing Sander's more recent article.
Of course, when you do address that fact, you have to ask the next questions: how do those students fare at large law firms?; does the enormous performance gap affect how well prepared those students are able to thrive as practicing lawyers?; does the enormous performance gap affect how readily partners will assign work to the new lawyers?; does the enormous performance gap stigmatize African-American law firm associates?
"As a non-attorney I am perplexed by one argument presented here."
I too am perplexed by the argument that affirmative action is unconstitutional especially given the large body of case law that says many (most?) forms of it are in fact constitutional.
It isn't as if people who attend law school but do not pass the bar are condemned to the poorhouse. A JD (or even a year or two of law school) can be a useful occupational credential even without bar membership, perhaps more so than are similar credentials in other fields. It isn't inconceivable to me that someone could decide to attend law school even knowing that she had zero chance of passing the bar.
This seems very implausible to me. Where in American society is a year or two of law school treated as a "useful occupational credential," let alone as exceeding other possible credentials,rather than as evidence that one couldn't hack it?
And no one's arguing that law school dropouts are "condemned to the poorhouse"; that's a complete straw man. The real question is whether going to law school for one or two years and then having to drop out has any benefit that outweighs the $50,000 that the dropout may have had to borrow, in addition to the opportunity cost from foregoing a salary for that time.
Rothstein's response -- both in this thread and on page 18 of his paper -- either avoids the question or consists of hand-waving assertions.
Actually, that is no longer true. The numbers of minority college students increased radically in the 1970s and 1980s; now that those people are old enough to have children, minorities will also benefit from legacy admissions. I do find it ironic that people are trying to get rid of legacy admissions just as minorities stand to benefit.
As for the constitutionality of affirmative action: it is acceptable so long as there is a compelling state interest. The problem with the ABA mandating affirmative action is:
1. The "compelling state interest" asserted is academic freedom, and the State (or its agent) cannot mandate the methods of academic freedom.
2. If minority students are ultimately harmed by affirmative action (as most minority students are who attend third or fourth-tier law schools), there can hardly be a compelling state interest in mandating that schools accept them.
The largest problem with law school's use of affirmative action, unlike in the undergraduate context, is that the costs are huge and the rate-limiting step (i.e. bar passage) is after the costs have been expended. Very few people take out more than $20,000 in loans for undergraduate work; and, even if you do badly, you still have a degree that is worthwhile. In 1994, white students had an average of $45,000 in law school debt, while black students had $65,000 in debt. Yet, that debt is not necessarily worthwhile - in fact, students cannot know whether or not it is worthwhile (i.e. if they will ultimately pass the bar; six times as many blacks as whites never pass) until after thery have expended those costs (and lost three years of opportunity costs from working). At the very least, the rate-limiting step should be set at the front of the process, so that all students who are admitted to law school are capable of passing the bar.
Welcome to the struggle!
From CNN:
A bitterly divided U.S. Supreme Court on Thursday issued what is likely to be a landmark opinion -- ruling that race cannot be a factor in the assignment of children to public schools.
The court struck down public school choice plans in Seattle, Washington, and Louisville, Kentucky, concluding they relied on an unconstitutional use of racial criteria, with the 5-4 vote reflecting the deep legal and social divide over the issue of race and education.
Similar plans already in place or being proposed across the country could be in danger as a result of the ruling, which would sharply limit the power of local governments to achieve diversity using race-based criteria.
A conservative majority led by Chief Justice John Roberts said other means besides race considerations should be used to achieve diversity in schools.
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Roberts wrote.
Assigning the K-12 population to various schools based on the students' race has very little to do with how various law schools, both public and private, decide how to offer admission to law student candidates. For now, at least, as long as a student's race is one of many factors that a public law school may use while evaluating each individual, and not a deciding factor in itself, the Supreme Court has said it's constitutional.
By analogy, if Seattle had evaluated each student and said, "based on our evaluation, we believe the best school for your talents is School X; would you like to go there?" their diversity plan might have passed constitutional muster.
as the Roberts opinion (even with the pithy and misleading quote) the controlling opinion?
Just asking.
So as I understand it, the current holdings of the SCOTUS are that diversity in graduate education can pass strict scrutiny under even loosely tailored programs because the court won't look too hard at what's going on, but in elementary education the tailoring must be much tighter because the court will look more closely at the real facts. The bottom line is the degree of skepticism that lower courts will apply, and on that topic the SCOTUS has recently taken two radically differetn positions.
From CNN:
Apparently you missed the extensive discussion on this very site of that very opinion.
BruceM made substantially the same point above, in more general terms. I've never understood how this constitutes an argument against AA. In essence, what you're describing is a racist reaction by people to your friend. I can't see any reason to treat their racist reaction to a policy as an argument against that policy. To me, that's just an argument against being a racist.
exactly!
As a (former) female engineer, I too hate affirmative action. The very basis of affirmative action is the belief that certain groups (women in the sciences, blacks in academics, etc) are, by themselves, not able to compete with their peers in a purely meritocratic system. Those who are able to compete, however, are treated as if they cannot so compete. This is not necessarily racist or sexist; consider that many people who are legacy admissions or athletes are treated as academically inferiour to their peers. The fact that such an effect is seen in settings where discrimination is unlikely indicates that the reaction is not one bred of racism (or sexism, or anything else which, in an ideal world, would be abolished from the earth), but rather one which will persist so long as the system persists.
At least female engineers can eventually be vindicated: no meritless person survives the weed-out process of organic chemistry or differential equations. Black law students do not have the same opportunity to prove their worth against their peers. (This, of course, is a related problem to the fact that the rate-limiting step of the lawyer admissions process is after law school.)
I fail to see how it is "racist" to question whether a member of a group afforded enormous preferential treatment got to a certain position with or without the benefit of that preferential treatment.
Now, you may believe that a degree from Yale is no better than a degree from State U law school. You may even be right. But that is not our system. Hiring at large law firms in the US is based on the premise that some degrees are better than others.
How is it "racist" to question whether a Yale degree means the same thing among two people, one of whom falls into the preferential treatment group, and one who does not. Especially when Yale does everything they can possibly do (pass/fail grades etc) to obscure differences between their students, basically telling employers "Trust us, if we admitted X, X is one smart cookie and will be a great lawyer."
Because law classes aren't graded? Because the bar exam isn't graded? Or, later in their careers, because winning cases, writing good briefs and memos, and rain-making aren't measurable?
Cato:
So, your friend couldn't show his transcript to the law firm?
It's not racist to question but it is racist to automatically assume. the person in the scenario asked "did the journal have an AA policy" not "did you receive your position as a result of the AA policy". the person assumed that just because an AA policy existed that the applicant automatically benefited from it.
As I pointed out in my previous posts, the top law schools go to great lengths to obscure any differences in performance among their students. Almost all refuse to provide class rank, almost all have enormous grade inflation, and Yale even has pass/fail grading.
How, exactly, does someone who falls into the preference group, but did not benefit, supposed to prove that when his school gives everyone an A or a B and won't release class ranks?
and even if the person had received his position as a result of AA, so what? if you were making your hiring decisions on the basis of merit it wouldn't matter. you'd ask yourself "how well did this person do his job" and "how well will this person do the job for which i'm hiring".
the fact that this line of reasoning is only applied to AA is further evidence of its racism. How many people ask "did you get your job because you knew the boss/influential coworker/valued client/etc". all of which are indicative of being less then qualified for a position and also something that no one cares about.
Engineering students who do not fail or drop out of the programme are very clearly the ones who remain there as juniors and seniors. Grades at most law schools are anonymous. "Writing good briefs and memos" is hardly measurable; even if it were, such measures happen years down the road, after the student/lawyer in question has the stigma of affirmative action for quite some time. At no point, until the bar, are students subjected to a rigourous test in which the unworthy are culled from the system.
Trust me, the bar exam question is a loser for you. Four times as many black law students fail it the first time; they are six times as likely to never pass it; finally, in many states (such as Virginia) it is pass/fail, with no kudos to those who do extraordinarily well. A black law graduate of Yale who passes the New York bar is not seen, by virtue of passing the bar, as more competent than a white law graduate of Pace University School of Law who also passed the bar, despite the radical disparity in caliber of those schools. The newly minted black lawyer has only proven that he can compete with graduates of even fourth-tier schools who pass the bar; he has not proven himself equal to his Ivy League peers.
It has not been my experience, as a law student applying for jobs, a lawyer reviewing resumes, or a law prof working with students, that grades in law schools are "annoymous." I graduated from a top-10 school (Michigan), and firms asked me for my GPA and not infrequently for my transcript. I teach at a second tier school, and firms routinely ask my students for class rank, GPA average, and transcripts. I know that Yale doesn't give traditional grades, but that's the exception in law school, not the rule.
I agree that briefs and memos are "down the road," but they -- and the other indicia of performance for associates I listed -- are not "hardly measurable." Law firms spend a lot of time and resources evaluating the performance of associates. They seem to believe they can do accurate measurements.
The bar exam question is not "a loser" for me because I am not advocating what you apparently think I am advocating. I was merely objecting to one part of your earlier claim: that, after being admitted, employers have no idea how black students are doing compared to their white peers. In fact, they do.
I think this sentence is wrong on several counts, but I'll mention just two. First, what you describe as "the basis of affirmative" action is incorrect. The actual basis is the belief that certain groups ARE able to compete on their own merits, but that social factors over which they have no control are affecting that competition. IOW, the markets have failed and government intervention attempts to correct for that failure.
Second, there is no such thing as a "purely meritocratic system" anywhere, and certainly not in law. Just consider what might constitute "merit" among lawyers: the one who gets the best grades in law school; the one who makes the most money as an attorney; the one who attains the highest judgeship; the one who does the most to help society; the one who publishes the most influential article; etc. We have no possible way of comparing these accomplishments and thus no way to judge "merit".
The question attributes to an individual the perceived characteristics of a group. I'd say that's pretty much the definition of racism.
Really, this is just sloppy interviewing. If an employer wants to know how well an applicant performed in law school, there are ways to find that out: grades; writing samples; teacher recommendations.
Exactly. Once a person has gotten a position, it doesn't matter how s/he got it; what matters is how s/he performed in it. Does anyone really believe Marcia Clark sat through the OJ trial thinking she had it in the bag because Johnnie Cochran might have gone to an inferior law school or been a special admit? If she did act that way, she'd have been a damned fool.
This is a complete red herring. Neither Gail Heriot's op-ed (that prompted this post), nor the Sanders study, nor the Yoon/Rothstein study, has had the least bit to say about the evaluation of veteran attorneys. The topic for this post is law school admission and it's impact on graduation, bar passage etc up through the first job out of law school.
And AA does matter in the first hiring decision when one of the principal (if not the principal) question big firms ask is "What law school did you go to?"
I agree that one of the first questions firms ask is "what law school did you go to?" But in my experience, there is a follow-up question, "and how did you do there?" To the extent any given law student is not competing well against his/her peers, that second question should reveal that information.
The problem is, at the top schools, there is not much information to reveal in response to your follow up question. I just picked a random school, Duke, and went to the career web site employer info. This is what they say:
When the median grade is a B+/A-, and class rank is not released, how, exactly, does a Duke student prove how well they did in law school. Especially when the most relevant info, how they did in reference to their Duke peers (class rank), is expressly denied to employers.
The vast majority of law schools use class ranks; transcripts are useful (even if the median is as high as B+); profs write recommendations; employers call former employers (those who employed the student after their first and second years of school); etc.
Law firms are savvy employers, and they know how to figure out what they are getting when they hire someone. There are arguments pro and con different types of affirmative action that are defensible. But it's simply not true that there is no effective way to get good, reliable, and/or predictive information about how law students have done/are doing/will do as lawyers.
What good is it to have any group go through law school, taking spots away from others, if we know to a certain statistical certainty that a disproportionately large percentage of members of that group will fail the bar exam? Other than "feel good-ism" what has been accomplished?
Would it not make more sense to go the additional mile and add additional points, perhaps a 'premium', to the scores of minority bar examinees? I don't know what the actual distribution of scores is in, say, New York, but the data is available so that we can calculate just how many points, on average, must be awarded to a minority examinee so as to increase the odds of that person passing the bar, until those odds are statistically level with someone who is not an affirmative action recipient.
What good does it do to bring someone to the point of the bar exam, and just leave them there?
After all, should Rosa Parks have been satisfied with just moving up to the middle of the bus?
If I can disagree with Joseph Slater, let me say that if the student spent a summer at the firm, the firm knows what they're getting. If the student didn't, and doesn't ahve a prior work reference from a known quantity (which is often the case), then grades are the "best available information" and are used as a proxy for future success. As some people noted up above, the elite law firms have very different grade cutoffs for certain URM groups. That's driven by a desire to integrate the elite levels of the profession, notwithstanding significant reservations about whether the credentials gap predicts a performance gap the law firm.
One obvious way would be to have grades above the median. Another would be to have a good writing sample or good instructor recommendation or a good experience as a clerk. There are a great many relevant factors employers might consider.
I'll leave aside the racism in this post ("blacks can't pass the bar") to ask you this: whites benefited from affirmative action, at the expense of blacks, for 350 years. What do you think would be an appropriate time frame for blacks to benefit?
OK, but how many big firms hire somebody out of law school if that person (i) didn't work for them over the summer; AND (ii) they don't have a reference from a "known quantity"?
The slice of this debate that concerns law school admissions and law careers is one small slice of a very grand debate in this country about how or whether to integrate blacks and - at various points - others and just how much commitment the country wants to have to that goal of integration.
On numbers, isn't it more accurate to say that the principal beneficiaries of affirmative action are not blacks but are white women (cf Sandra Day O'Connor's experience with that of classes in law school now). Still there are barriers white women confront (see the boardroom/partnership suite) that baffle me but there are those barriers. I saw this in my work in international commercial arbitration and was quite appalled by it.
I guess Sanders will look at that someday analyzing the reasons women leave the big firms.
Being a lawyer in a big firm in New York is not the be-all or the only determinant of success. I wanted to go to Paris, for example, and the T1 degree helped me get there and get on my way for 17 years of a wonderful life.
While I am flattered there is so much care for African-Americans in this debate, I must say that the singular focus on African-Americans as compared to other underrepresented minorities and white women tickles a little thing in my head that wonders about the bona fides of the concern for African-Americans.
One thing about decreasing the number of minorities at the top tier schools is that, in my experience, I have rarely seen persons outside of the T1 schools in the areas of law that interest me in particular - international commercial arbitration and public international law. Given that business disputes and work on the international plane is increasingly important, I do worry that reducing the number of minorities in T1 will mean we will eliminate even a few blacks in this area that has been so lilywhite for so long in the United States. I think that is a shame because it does seem that a little more diversity (the term is pale, stale and male - which I use as a person who fits the stale and male part of the three part category) might be good in this area of work that I love.
I am happy to have been and to continue to be a beneficiariy of affirmative action. People have their trips about it and that is fine. I like having had a chance given to me that I am certain would not have been available without affirmative action. I conclude that chance would not have happened without affirmative action from looking at my father's experience as the "one and only" (at Columbia Journalism School) and my uncle's experience (at Carnegie Mellon) with the racism they had to deal with when they were trying to make their way a generation before without affirmative action.
Whatever the color, I do not believe I have met a person who preferred not having the chance to having a chance even though the risks of life may make it harder to get to the top. All of us do not have to be Barack Obama for affirmative action to be OK.
Peace,
Ben
I'd guess that in large, elite firms, the strong majority of entry hiring is after a summer at the firm. My guess is about 3/4th or even higher. I should explain that by "known quantity" I mean someone who is trusted by the hiring firm and not just someone from a big firm. Easy "she's great" references from lawyers you don't know well don't mean too much.
It's quite often the case after a summer of work that the law firm concludes, "it looks like this person can handle the first couple of years here." I didn't mean to suggest that after a summer associate stint the firm knows what they're getting in terms of senior associate and partnership material.
Hiring laterally in the first three years of practice often falls into the category where grades are the best available information, because the lateral associate often doesn't want to provide references and become a lame duck. When a firm has to go out on the 3L fall market, the same is true. All the firm has are grades and whether the 3L got a permanent offer or not. Same thing when a student comes off a federal clerkship and pursues a firm where she didn't work over the summer.
I should add that I'm not sure I am disagreeing with you on the larger point. I wanted to provide some information for the thread on how hiring gets done at large firms. It's a mixture of solid information and random guesswork.
Finally, as I've said, the larger firms use completely different school/grade cutoffs for whites and certain URMs. This fact is known by everyone within the firm.
Better lawyers (think Marty Lipton or Ted Olson) add more value to clients than lesser ones; more talented associates add more value to law firms (and their clients) than lesser ones. However, law firms do not hire associates only for their talent at law; firms see some value in racial diversity and accordingly engage in affirmative action in associate hiring.
Presumably, this practice by firms produces the same mis-match effect in law firms that Sander identifies in law schools. Do we know to what effect? Is there a difference in quality of work produced by affirmative action beneficiaries at firms? Is there even any way to measure this? One way to measure quality of work would be to examine how associate work is valued by firms and their clients. We could ask whether there is a disparity between the dollar value of assignments given to white and non-white associates. Or maybe there's an easier metric: do non-white associates get more doc review?
If the answer is "no, there's no disparity", that would be very odd given Sander's conclusions. If the answer is "yes", that just makes me wonder why this whole affirmative action enterprise is worth continuing except as a means of wealth redistribution.
That is the focus of Sander's second article. We know that large firms hire with very different cutoffs, and we know that the promotion of African-Americans to partner lags well behind the promotion of whites. Broadly speaking, Sander says those two facts are related. Yoon and Rothstein disagree.
Note that URM-produced work could be valued less by the market because of incorrect perceptions of talent, sub-optimum assignment of work to URMs, and/or poor judgments about the value of the work produced by URMs. Each of those could be due to overt racism, subconscious racism, or some mixture of the two. Alternatively, the school/grades cutoff might accurately predict future performance across large numbers.
The question is who gives you a chance or are you able to make your chance. For example, on at least two key occasions in my career I was allowed to "carry the ball" on something that caused me to grow tremendously and quickly (a Zurich appeal and international commercial fast-track arbitration). In the first I was a novice (three days on the job) but was told it was my case and I had to figure it out. Of course there was supervision but I was really in the center of it. In the second, four cases had been given to a colleague and a secretary felt that the person (does his skin color matter? he was white for those who think it does) was out of his depth (he had just started) and would I like to take them. I talked with the guy who was happy to give them to me. In one case the choice was thrust on me and I was allowed to run with the ball. In the other, I took the initiative after a heads up to steer the high risk/high reward project to myself.
These were both in circumstances outside of America in international environments where cultural biases of one or another culture about competence or incompetence were muted. I happened to be working with an extraordinary humanist named Michel Gaudet (may he rest in peace) who made you feel that you could do things. That was the most important thing. Having the first Legal Director of the European Community give you that kind of encouragement was just an amazing experience. Also, to learn from him about what it is like to significantly change the world.
Like the woman lawyer (I am sorry her name escapes me) who was at a garage sale and ended up arguing Roe v Wade - her path was changed by the opportunity given.
When it comes to that moment, who gets the chance to grow will effect who gets to be the great lawyer. I think Chuck Yeager's idea of getting much experience to go farther down the experience curve is so true.
Peace,
Ben
Implicit in your anecdote is the fact that talent, coupled with opportunity, matter. If that weren't the case then the fellow you took the case over from would have succeeded just as well as you did.
Leaving aside your personal experience, do you think that across large numbers school/grades are predictive of success? That is, if opportunities are the same, should we expect that across large numbers the bottom decile student from a second tier school will succeed at the same rate as, say, second decile students from top 15 schools?
If I sold cars and the cars that were bought by AAs were 4 times more likely to fail than the cars bought by others, I'd be sued.
On what basis do law schools get away with this disparate impact? Surely they're not blaming the AAs....
Excuse me? I did not state that law firms and employers are unable to evaluate black students; I stated that their peers are unable to do so. Perhaps you mistook me for the commentor from NYU; however, my issue is with peer acceptance and acknowledgement of ability.
This is further compounded by affirmative action within the law school setting, such as HLS's infamous law review policy.
My points stand. Yours are completely out of line with statistics, by the way. Half of black law students graduate in the bottom 10% of their class after 1L year. They fail the bar at four times the rate of their white peers, are 2.5 times as likely to drop out of law school, and are six times as likely to never pass the bar. Fact is, even if you implement the very low meritocratic standards of "top half of class," and "bar passage," black law students do not measure up to their white peers.
Bar passage is problematic because it does not tell us whether or not a student "earned" his seat at a particular school; it only tells us whether or not he (like students from Stanford and Whittier) passed that particular exam.
Here is the Sanders article on affirmative action hiring in law firms.
Frankly, I have no idea how, as a black law student, you are ever supposed to prove yourself equal to your white peers. Law schools are hesitant to flunk anyone; prestigious employers use engage in affirmative action; and the racial preferences used to admit them in the first place all but ensure that they cannot compete against their white peers. Certainly, this is not something which should be mandated as a condition of accreditation.
My problem in trying to answer is that trying to make opportunities the same is so difficult. The network effects associated with being from Harvard (T1) when one wants to work on the international plane are just incredible as compared to the network effects of coming out of Toledo (T2). In Ohio, the network effects are more evened out for the two because Toledo is a 100 year old school with lots of grads here who strongly support us. Of course this will change as we continue upward (a little rah rah there folks!)
Across large numbers, I would think that grades are predictive of the likelihood of good first opportunities because so much of the first selection is made based on that. Then the question for success is what you do with the hand you are dealt out of that in the society.
I have known of people (white and black) who fell on their face on their first job and went to something else after a few years and others who have stayed in the same enterprise forever doing quite well.
Grades may be evidence of other attributes needed to be a good lawyer but, for example, success at moot court might be a better indicator of litigation skills for those getting in that career. For example, Deval Patrick was not on Law Review at Harvard but he won the internal moot court (Ames Moot Court) and got the Best Oralist. He is a Governor. What part of that is Deval grades, Deval network effects of Harvard, Deval ambition? It is hard for me to pull that apart in a meaningful way.
If someone ended up as dog catcher but that was what they thought was success, who am I to say that is failure?
Another way to think of it, for example, it seemed to me at one point that if you wanted to go towards Public Finance working with municipalities with many elected mayors who are black there might be a stronger chance in some toney firms to create a niche and be quite successful doing that and get to partner as a black partner at such a majority law firm. But, if one was interested in trying to get to the international business work, the acceptability/comfort level would be different in having one represent the lawfirm with the company.
Maybe it is client comfort levels or maybe it is the law firm comfort levels with one person over another. I know it usually has come down in my life to an older person taking a chance on me and me doing the best I could with it.
The niches make it complicated to give predictions over large numbers.
I did an MBA too and I did notice that the willingness to put blacks out front on the international plane was stronger in the business world than in the law world - for example I saw a number of African-American business persons at places like IBM in Paris or in Finance, but absolutely none in the overseas offices of the American lawfirms. Always baffled me why that happened. I have also noted black attorneys serving as inhouse counsel as opposed to in the lawfirm such as Larry Thompson going to Pepsico from the government. Is that more or less success?
So I am sorry I give anecdotes and am not able to give a categoric response. Hope this assists thinking.
Best,
Ben