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More on Whether Affirmative Action in Law Schools Backfires on Prospective Black Lawyers:

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UPDATE: The ABA's new proposed rules have apparently been "withdrawn for further study" until February 2008.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.

jonah gelbach:
On this topic, this paper is worth a read:

"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.
8.27.2007 11:26pm
Tony Tutins (mail):
Do elite law schools teach/require legal analysis? A minority Boalt grad acquaintance of mine, who flunked the California Bar exam the first time, told me that the first time he heard about IRAC was during Bar-Bri. He left me with the impression that law school there required the same type of essays and papers as would a poly sci grad school. He ended up having to hire a bar tutor to teach him how to write a lawyerlike essay.

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.
8.27.2007 11:45pm
Richard Aubrey (mail):
Tony. I guess you could run across them in other settings...?

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.
8.28.2007 12:09am
DavidBernstein (mail):
Jonah, too much of the debate is about elite law schools. By definition, most law students, African American or otherwise, do not attend elite law schools.

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.
8.28.2007 12:10am
theobromophile (www):

Black students attain better employment outcomes than do whites with similar credentials.

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.


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.

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....
8.28.2007 12:39am
Tony Tutins (mail):
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.


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.
8.28.2007 12:48am
Ak:
"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.
8.28.2007 1:39am
Brian K (mail):
Have any confounding variables been analyzed?

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)
8.28.2007 4:02am
BruceM (mail) (www):
Nothing has hurt Clarence Thomas as much as affirmative action. Everyone who hates him (and I don't love him) always cites him as an example of affirmative action in action. Strangely, these are often the same people who support affirmative action. So, any african american who benefits from any form of affirmative action will be disrespected and diminished later on in life if they don't tow the affirmative action line, ironically being accused of "getting there solely due to his race" (which is the definition of affirmative action). I find the whole thing confusing, but at the end of the day, everyone loses in the long run from affirmative action.

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?
8.28.2007 4:33am
Brian K (mail):
"getting there solely due to his race" (which is the definition of affirmative action).

It's hard to take your post seriously when you got this line in there.
8.28.2007 5:02am
BruceM (mail) (www):
Brian K: Why? Promotion or acceptance due to one's race, over other equally qualified or more qualified individuals of other races, is exactly what affirmative action is. This only becomes socially acceptable to some when the word "minority" is stuck in there.
8.28.2007 5:47am
anonVCfan:
Isn't it time the ABA just gave up . . . ?

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.
8.28.2007 8:22am
J. Kindley (mail) (www):
From the linked post on the ABA's new proposed accreditation rules: "C) A correlative pressure will be to teach even more to the bar; and while the bar arguably may test stuff most lawyers should know, nobody could seriously argue that a three-year bar course will tend to produce good lawyers."

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.
8.28.2007 8:44am
Baxter (mail) (www):
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[?]
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.
8.28.2007 10:15am
Jesse Rothstein (mail) (www):
Thanks, Jonah, for the citation!

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:

The Supreme Court has held repeatedly that race-based preferences in public university admissions are constitutional. But debates over the wisdom of affirmative action continue. Opponents of these policies argue that preferences are detrimental to minority students - that by placing these students in environments that are too competitive, affirmative action hurts their academic and career outcomes.

This article examines the so-called "mismatch" hypothesis in the context of law school admissions. We discuss the existing scholarship on mismatch, identifying methodological limitations of earlier attempts to measure the effects of affirmative action. Using a simpler, more robust analytical strategy, we find that the data are inconsistent with large mismatch effects, particularly with respect to employment outcomes. While moderate mismatch effects are possible, they are concentrated among the students with the weakest entering academic credentials.

To put our estimates in context, we simulate admissions under race-blind rules. Eliminating affirmative action would dramatically reduce the number of black law students, particularly at the most selective schools. Many potentially successful black law students would be excluded, far more than the number who would be induced to pass the bar exam by the elimination of mismatch effects. Accordingly, we find that eliminating affirmative action would dramatically reduce the production of black lawyers.



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.
8.28.2007 10:32am
loki13 (mail):
These types of posts always amuse me. Are you angry at affirmative action because it helps minorities (read: blacks and sometimes latinos) or because it hurts them? Because it gives them an unfair advantage?

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.
8.28.2007 10:40am
DavidBernstein (mail):
Jesse Rothstein, I don't see how anything in your abstract even speaks to the concern I raised in comment 4. I'll look at the paper, but meanwhile, if you can briefly explain to readers how "there's little evidence that this harms anyone's chance of success" when, by my calculations, over 1/2 of matriculating black law students at the bottom 2/3 of schools either drop out, fail out, or never pass the bar--and the figures are much worse at individual schools--that would be very enlightening.

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."
8.28.2007 10:45am
DavidBernstein (mail):
Loki, I'd appreciate it if you wouldn't use me as a strawman to vent your feelings about affirmative action; your comment is not at all addressed to my post.
8.28.2007 10:47am
JosephSlater (mail):
Affirmative action is a complicated issue. Having said that, Loki13 makes some very telling points. Along the lines of what he writes, if affirmative action is so bad for blacks, why do blacks support it so overwhelmingly?
8.28.2007 10:49am
GeorgeH (mail):
Why not just close all but the 1st and 2nd tier law schools?
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?
8.28.2007 10:53am
DavidBernstein (mail):
JS, let's not veer off into a discussion of AA in general. There is nothing in my post that states, or even suggests, that in general, "affirmative action is so bad for blacks".

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.
8.28.2007 10:54am
tab (mail):
What always gets me about this affirmative action debate is the assumption that law schools aren't already lilly white. I've looked at the statistics and I attended two lower-tiered law schools (one first tier and one fourth) and both were lilly white. I was one of the few non-whites (I'm not black though) and now I'm eagerly waiting to find out if I will be one of the few non-white, statistically, lawyers in my state. My point is that the pool of non-white people actually attending law school is so low that it would seem that the statistics regarding bar passage, etc, might be highly skewed. Also, the whole thing regarding big firms being lilly white - THEY ARE. I'm not a huge fan of affirmative action, because the whole argument makes me feel like an worthless idiot who wouldn't have graduated from an ivy league and law school without the almighty white guiding hand, but come-on, the big problem with law school, the ABA, and the whole legal profession is neither affirmative action nor the fact that the profession is still white and male dominated. The problem with the profession is that it is made up of and for elitest, hyper-memorizers with little to no morals. Evidence - the tendancy to make tiers out of everything and everybody, the emphasis of image rather than substance, the fact that lawyers have no problem asking prospective female employees if they have children or are planning to have them, the faux-diversity mantra of most big law firms, and on and on. Silliness.
8.28.2007 11:04am
JosephSlater (mail):
DB:

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.
8.28.2007 11:07am
loki13 (mail):
DavidBernstein,

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.
8.28.2007 11:12am
DavidBernstein (mail):
JS, what people are for and against in the abstract is different from particular scenarios. If you asked me "are you in favor of affirmative action in law schools" I'd say "yes." If you asked me "do you support preferences used to ensure that elite law schools have minority representation" I'd again say "yes." But if you asked me, do you support requiring all law school to have admissions preferences, even if the result is that at some law schools the vast majority of African American matriculants never pass the bar, I'd say "no". I suspect that would be true of a lot of people.

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.
8.28.2007 11:18am
DavidBernstein (mail):
Loki, what you seem to be saying is that you think, in general, opposition to affirmative action is racist. Therefore, no one should even oppose any specific affirmative action policy, for any reason, because it just plays into the hands of the racists. You're entitled to your opinion, of course, and I think it's shared by many others, and explains why the reaction to Sander has been so, umm, vigorous. But I hardly think that AA proponents are doing themselves any favors with such a "circle the wagons" mentality, which leads to an equally vigorous defense of the most effective, worthy, affirmative action program, and the most unsuccessful, even counterproductive, program. This means that the case for AA will inevitably be judged by its weakest link, which is not the position proponents should want to be in.
8.28.2007 11:27am
Houston Lawyer:
I think a little transparency with regard to law school affirmative action would be a good thing and is what the Commission on Civil Rights appears to be asking for. Supporters of affirmative action have been lying for decades about the amount of preference given to blacks and Hispanics in the admission process. Many still insist that law schools are actually discriminating against underrepresented minorities in admissions practices.

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.
8.28.2007 11:36am
JosephSlater (mail):
DB:

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 . . . ?"
8.28.2007 11:42am
loki13 (mail):
David,

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?
8.28.2007 11:42am
Jesse Rothstein (mail) (www):
DB:

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.
8.28.2007 11:50am
Black Dude at T10 law school (mail):

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.
8.28.2007 11:50am
DavidBernstein (mail):
Jesse,

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.
8.28.2007 12:03pm
DavidBernstein (mail):
"Black Dude," it's certainly a reasonable choice. OTOH, if I were in the position of, say, getting my master's degree in education, or accepting an offer of admission from a Tier 4 law school, and I knew that my stats were such that my statistical odds of making it past the bar exam were 30%, I'd only accept the law school offer if I were absolutely certain that the only thing I wanted to do with my life was be a lawyer, and also had the resources to do something else if it didn't work out.
8.28.2007 12:14pm
DavidBernstein (mail):
Gotta take leave of this discussion and get some work done, but do want to mention that I think there are a variety of ways to increase minority representation in the profession that unfortunately aren't on the table--get rid of the bar exam, allow law to be offered as an undergraduate major, relax the rules for part-time students, and more.
8.28.2007 12:18pm
AF:
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.
8.28.2007 12:19pm
anonVCcommenter (mail):
I think the point is that preferences in law schools can be a net loss to blacks even if they increase the number of black lawyers, if they also increase the percentage of black law students who never become lawyers even more.
8.28.2007 12:28pm
Happyshooter:
Do elite law schools teach/require legal analysis? A minority Boalt grad acquaintance of mine, who flunked the California Bar exam the first time, told me that the first time he heard about IRAC was during Bar-Bri.

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.
8.28.2007 12:41pm
Extraneus (mail):
To further anon's point, what if preferences increase the percentage of lawyers (or doctors, engineers, architects, etc.) suspected of being less competent than non-minorities? The concept of "net loss" really shouldn't be limited to the effect of race-based preferences on the actual lottery-ticket holders.
8.28.2007 12:46pm
Jesse Rothstein (mail) (www):
DB:

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.
8.28.2007 12:50pm
David M (mail) (www):
Trackbacked by The Thunder Run - Web Reconnaissance for 08/28/2007
A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
8.28.2007 12:53pm
A.C.:
The obvious hazard to affirmative action in graduate or professional school admissions is that people who think they will benefit from it might not study as hard in college. This can also apply to legacy admissions and the children of prominent people, of course, and I have no problem with eliminating those special admission categories along with affirmative action.

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.
8.28.2007 1:00pm
law talking guy (mail):

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.


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.
8.28.2007 1:06pm
DavidBernstein (mail):
Jesse, fair point, but (1) not applicable to people who already have a job/career before they attend law school; and (2) law is relatively unusual in having a test at the end, highly correlated with standardized test scores, that one has to pass to even get in the game. An MBA may not "succeed" in business, but no one is stopping him from getting any sort of job in the field.

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?
8.28.2007 1:06pm
Brian K (mail):
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.

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?
8.28.2007 1:19pm
dwshelf:

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.



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.
8.28.2007 1:20pm
Carolina:
I just finished reading the Rothstein/Yoon article. Here's my seat of the pants instant-analysis CliffNotes summary:

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.
8.28.2007 1:44pm
Libertarian1 (mail):
As a non-attorney I am perplexed by one argument presented here. It was said before AA is eliminated legacy admissions, inheritance etc should be eliminated because they give an unfair advantage to "whites".

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.
8.28.2007 1:53pm
Carolina:
Beyond my comments on the article (above), I'd add that I am very suspicious when institutions refuse to provide data.

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.
8.28.2007 1:57pm
Carolina:
Final point regarding law schools. If, as Yoon/Rothstein allege, it is such a good thing to admit people to law school who have only a 50% chance of becoming lawyers -- to "give them a chance" -- why is this great privilege only provided to blacks? It would seem, if this is such a great benefit, we should open 50 new law schools so whites with poor credentials can also have the privilege of spending $100,000 for a 50% chance at becoming lawyers.

Somehow, I don't see this happening.
8.28.2007 1:57pm
trp125 (mail):

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.



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?
8.28.2007 1:59pm
Brian K (mail):
Libertarian1,

"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.
8.28.2007 2:02pm
Stuart Buck (mail) (www):
Jesse Rothstein says:

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.
8.28.2007 2:03pm
theobromophile (www):

It was said before AA is eliminated legacy admissions, inheritance etc should be eliminated because they give an unfair advantage to "whites".

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.
8.28.2007 2:26pm
r78:
It is nice to see that Mr. Bernstein is now concerned with the plight of African Americans.

Welcome to the struggle!
8.28.2007 2:47pm
Libertarian1 (mail):

Brian K wrote:

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.



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.
8.28.2007 3:03pm
Tony Tutins (mail):
race cannot be a factor in the assignment of children to public schools.

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.
8.28.2007 3:59pm
loki13 (mail):
Libertarian1,

as the Roberts opinion (even with the pithy and misleading quote) the controlling opinion?

Just asking.
8.28.2007 4:02pm
trp125 (mail):
loki13 is right, I think. Roberts didn't carry 5 votes.

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.
8.28.2007 4:16pm
Cato:
I attended NYU Law School and was always struck by a comment a black friend made. He had been a staff member of a journal -- not LR -- and had interviewed with all the major law firms in NYC. Upon seeing his resume, a very high percentage of the interviewers asked him whether there was an affirmative action program for membership on that journal, the assumption being that affirmative action was the reason for his membership. It was not as he applied in a manner that did not take race into admission. However, when he replied that affirmative action was a policy of the journal, he was greeted by knowing smiles. He rarely got a callback when the question was asked. Thus I believe affirmative action hurts members of a race who succeed on merit.
8.28.2007 4:28pm
Brian K (mail):
Libertarian1,

From CNN:

Apparently you missed the extensive discussion on this very site of that very opinion.
8.28.2007 4:58pm
Mark Field (mail):

Thus I believe affirmative action hurts members of a race who succeed on merit.


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.
8.28.2007 5:13pm
Brian K (mail):
Mark Field,

exactly!
8.28.2007 5:20pm
theobromophile (www):
Mark Field,

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.)
8.28.2007 5:20pm
Carolina:
Mark/Bruce:

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."
8.28.2007 5:34pm
JosephSlater (mail):
Thebromophile: Black law students do not have the same opportunity to prove their worth against their peers.

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?
8.28.2007 5:36pm
Brian K (mail):
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.
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.
8.28.2007 5:44pm
Carolina:
JosephSlater,

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?
8.28.2007 5:45pm
Brian K (mail):
to continue:

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.
8.28.2007 5:49pm
theobromophile (www):
Joseph Slater,

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.
8.28.2007 5:51pm
JosephSlater (mail):
Theobromophile:

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.
8.28.2007 6:00pm
Mark Field (mail):

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.


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".


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.


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.
8.28.2007 6:00pm
Mark Field (mail):

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".


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.
8.28.2007 6:04pm
Carolina:

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?


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?"
8.28.2007 6:11pm
JosephSlater (mail):
Carolina:

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.
8.28.2007 6:15pm
Carolina:
JosephSlater,

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:


The median grade for all first- year and upper level courses of 40 or more students is 3.3.

Again, Duke Law School does not release class rank.


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.
8.28.2007 6:23pm
uriah (mail):
Generally speaking, the top law schools go to great lengths to sort out their very top students and make the rest appear to be clumped at the b+ level, and then force firms to interview regardless of grades or rank. Schools with less market power will issue class ranks and let law firms pre-screen after seeing the ranks. There are exceptions, but that's the general rule.
8.28.2007 6:29pm
Elliot123 (mail):
If, after all therse years of affirmative action, we still can't get blacks to pass the bar, is it possible AA doesn't work?
8.28.2007 6:35pm
JosephSlater (mail):
I agree with everything Uriah said.

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.
8.28.2007 6:35pm
Redman:
The biggest problem with affirmative action is that there is not enough of it. What we have now is really just window dressing and lip service. If the ABA was really serious about increasing minority representation in the profession, and not just increasing the number of rumps in law school chairs, they would be pushing states to awarding additional points to minorities who sit for the bar exam.

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?
8.28.2007 6:46pm
uriah (mail):

Law firms are savvy employers, and they know how to figure out what they are getting when they hire someone.


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.
8.28.2007 6:55pm
Mark Field (mail):

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.


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.


If, after all therse years of affirmative action, we still can't get blacks to pass the bar, is it possible AA doesn't work?


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?
8.28.2007 7:03pm
JosephSlater (mail):
Uriah:

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"?
8.28.2007 7:04pm
Benjamin Davis (mail):
I think we have been down the path of this discussion for a couple of hundred years in some way shape or form - starting with what was going to be done with slavery, through whether blacks would be permitted to get an education or whether it was going to be a crime to educate blacks, through the Civil War, through reconstruction and the implementation of segregation, through Plessey and dejure and defacto segregation, through Brown's call for integration and non-discrimination, through calls for equalization of school funding, through affirmative action (narrow or broad definition), through the next big or small thing.

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
8.28.2007 7:28pm
uriah (mail):
Joseph Slater,

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.
8.28.2007 7:40pm
O3L:
One thing I'd like to know: What happens to affirmative action beneficiaries at law firms? One way to describe Sander's conclusions is that the market (or at least an objective, race-blind selection process like the Bar Exam) will largely correct our attempts to engineer it. This leads me to wonder what happens when this system meets an actual market: the market for legal services.

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.
8.28.2007 7:55pm
uriah (mail):
O3L,

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.
8.28.2007 8:07pm
Benjamin Davis (mail):
David Wilkins wrote about this several years ago analogizing from the idea of "royal jelly" that makes someone go from an ordinary to an extraordinary career.

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
8.28.2007 8:21pm
uriah (mail):
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?
8.28.2007 8:38pm
Andy Freeman (mail):
> 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.

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....
8.28.2007 8:49pm
theobromophile (www):
Joseph Slater,

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.
8.28.2007 10:51pm
David M. Nieporent (www):
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?
For the same reason people don't care if there are stores that cater to rich people but do care if there are stores that cater to white people. The same reason we don't think there's something evil about a factory owner hiring his son over a better qualified non-related candidate but we do think there's something evil about a factory owner hiring a white person over a better qualified black candidate. For the same reason we don't think there's anything wrong with Pepsi preferring a famous person to be in its ads over a non-famous person, but we would think there's something wrong with Pepsi preferring a white person to be in its ads over a black person. Because racial discrimination is wrong. We can debate whether discriminating on the basis of wealth or family status is good policy, but it isn't invidious discrimination the way racial discrimination is.
8.28.2007 10:52pm
CJS (mail):
If AA were really working so well, why is it continually needed at each level? It's vastly implemented across undergrad, and yet it's still necessary to make sure there is diverse representation in professional and graduate schools? And it's used in law school, and yet it's still necessary for the big, elite firms to engage in AA to ensure they are diverse? When does this start producing more diverse grads who meet the normal admissions or hiring criteria?
8.28.2007 10:57pm
Benjamin Davis (mail):
Uriah,

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
8.28.2007 10:58pm
David M. Nieporent (www):
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.
He's not describing a "racist reaction." He's describing a purely rational reaction.

If you're interviewing two people for a job, each of whom presents a college degree as his credential, and one of these two people bought his college degree off the internet while the other one attended classes, studied, took exams, etc., which applicant would you rate higher? The one whose credential was earned or the one whose credential was handed to him? I assume you'd pick the former, on the grounds that he's probably better qualified for the job. Of course, there's no guarantee that the college graduate is actually smarter than the diploma-mill student; you're stereotyping. But it's reasonable, not an irrational prejudice. You don't have time to evaluate each job applicant fully and individually; you need to rely upon proxies, such as credentials.

But even if it were a racist reaction, your argument here would make no sense. If the purpose of AA is to help blacks, rather than to help white liberals feel less guilty, then the important issue in evaluating AA is whether it actually helps blacks. If it doesn't -- for whatever reason -- that's an argument against the policy.
8.28.2007 11:10pm
Brian K (mail):
david nieporent,

we are not talking about discrimination in general here...we are talking about affirmative action with respect to admission and hiring practices. in this regard the net effect of hiring someone because they are a minority, because they are the boss's son or because their parents went to the same school is exactly the same. it denies a place for someone who would otherwise have been accepted/hired based on some sort of "merit" system*. it also breeds resentment, envy and ill will (the definition of invidious) in coworkers/classmates that had to work to get in. the different reactions between the first and last 2 scenarios is surprising given that the end results are exactly the same.

*this is the same argument that i most commonly hear against affirmative action and one that i never hear with regards to nepotism or legacy. your post is proof positive of that.
8.28.2007 11:25pm
Brian K (mail):
If you're interviewing two people for a job, each of whom presents a college degree as his credential, and one of these two people bought his college degree off the internet while the other one attended classes, studied, took exams, etc., which applicant would you rate higher? The one whose credential was earned or the one whose credential was handed to him? I assume you'd pick the former, on the grounds that he's probably better qualified for the job. Of course, there's no guarantee that the college graduate is actually smarter than the diploma-mill student; you're stereotyping. But it's reasonable, not an irrational prejudice. You don't have time to evaluate each job applicant fully and individually; you need to rely upon proxies, such as credentials.

This is about as complete misrepresentation of what actually happens as you can possible have. it is only true if the two otherwise identical people are applying for the same job on the exact same day that they are accepted to the college. This clearly is not true for college graduates who have built up a body of class work with which to judge their performance. That is what makes it racist...you are refusing to hire the black applicant solely because he is black and for no other reason.

The following scenario properly describes the extent of what you consider "reasonable". applicant A has a 4.0 GPA and is black. applicant B has a 2.1 GPA and is white. since applicant A only got into the school because of affirmative action is he is obviously less qualified than B and should not be hired. does it still sound reasonable?
8.28.2007 11:33pm
Mark Field (mail):

But even if it were a racist reaction, your argument here would make no sense. If the purpose of AA is to help blacks, rather than to help white liberals feel less guilty, then the important issue in evaluating AA is whether it actually helps blacks. If it doesn't -- for whatever reason -- that's an argument against the policy.


I'm skipping the rest of your post because your analogy isn't really on point; the flaws in it are obvious.

Your argument in this paragraph makes no sense to me. As I read it, you're saying that we should halt AA because some (many?) people have racist reactions to it. That doesn't strike me as a particularly persuasive ground for halting a government policy. Some people, I suppose, might refuse to join the Army because it accepts black soldiers. That would hardly be a reason for the Army to end its practice.
8.28.2007 11:34pm
That Guy (mail):
theobromophile,

[...]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.

Let's suppose that there is a way for black students to prove they're equal to white students. Why should this matter? I've learned that it is almost impossible to actually know what a person thinks. It would be absurd to try an prove yourself, when you may never have access to the answers. The point is there's really no way to know if you've proven yourself. And even if you've proven yourself, what does it really matter?
8.28.2007 11:37pm
theobromophile (www):
CJS,

Affirmative action at the undergraduate level (if you do not believe the Sander's mismatch theory) can trigger the need for affirmative action at the law school level to compensate for a diminished GPA. For example, an underprepared but talented student will not do as well as his well-educated peers during the first year or two of college. Although he may be on par with them by his senior year, his grade-point average will be lower. Law schools could compensate for lower freshman and sophomore year grades in admissions.

Ben,

I think there isn't much discussion here about Hispanics and women because the preferences for those two groups, in law school, is different than those given to blacks. Women have slightly lower LSAT scores and are slightly less likely to be at the top of their class. I know that the preferences which Hispanics receive are about half those that blacks receive, but, IIRC, there are too few in law school to result in meaningful data (rather than just statistical noise).

The pipeline issue does not really exist for women the same way that it exists for blacks: there simply are not enough talented black college graduates who apply to law schools. Only 75 black LSAT takers scored above 165 on the LSAT in 2002, although over 7,500 non-black students scored above 165. One of the 399 students who scored a 175 or higher was black.

Likewise, in 1997-1998, only 20 black students scored a 170 above on the LSAT; 2,532 non-whites scored a 170 or higher.
8.28.2007 11:50pm
theobromophile (www):
That Guy,

You are free to disagree with me as to whether or not it matters. I was pretty explicit about my own reasons for thinking it matters: as a woman engineer, I faced the same "you only got in because you are a woman" nonsense until I was a junior. Now, I had a perfect score on the math section of my SAT, but I "only got in because [I am] a woman." Perhaps there was no meaningful discrimination as a result, but it was still annoying as all hell.

Proponents of affirmative action will state that there is subtle discrimination which occurs: a professor may choose a white student for a research assistant position or a boss may delegate more important tasks to a white associate. Those circumstances are certainly affected by the perception of "merit" (however such may be judged).

I do think that the spectre of affirmative action breeds disrespect for its supposed recipients among their peers (and, perhaps, those in positions of authority); regardless, their peers eventually arrive in the upper echelons and bring such attitudes with them.

You are more than free to not agree with me; I would posit, however, that you've enjoyed a presumption of success upon the merits for your entire life and cannot contemplate an existence wherein people assume that you are not qualified (or beat out more qualified people), simply because of your gender.

From a policy perspective, if a school like George Mason decides that it wants to cater to the few women and blacks who think as I do and explicitly not use affirmative action in its admissions process, it should be able to do so. As things stand with the ABA, however, law schools are bullied into using affirmative action, and, by implication, students have no opportunity to compete in a race- or gender-blind system.
8.29.2007 12:18am
Brian K (mail):
as a woman engineer, I faced the same "you only got in because you are a woman" nonsense until I was a junior. Now, I had a perfect score on the math section of my SAT, but I "only got in because [I am] a woman." Perhaps there was no meaningful discrimination as a result, but it was still annoying as all hell.
also a white male engineering student i noticed a completely different reaction to female engineering students...one of happiness. every guy i knew wanted more women in the engineering field and were happy to have them in their classes. i saw a lot of people going out of their way to "help" the female students...i put "help" in quotes because that was definitely not their real motives.

perhaps you are generalizing the reaction of a very small minority of male engineers onto the entire group? i never once heard anyone say "she's only got in because she's a woman" or something to that effect.
8.29.2007 12:38am
uriah (mail):
Ben,

If you think that school/grades is predictive only of whether a new student will get an opportunity and not of whether they will excel at the assignments given, then you and I disagree by a mile. Across large numbers, people who succeeded at law school will outperform those who did not. If we're talking about a group where over half placed in the bottom ten percent, that's a huge skill deferential to take into private practice.

Your rhetoric also implicitly assumes that new associates have zero input on what kinds of assignments they get. In general, those who "got it" in law school are far more able to make their own luck.
8.29.2007 12:53am
theobromophile (www):
Brian K,

We can disagree over whether or not it has happened; we can disagree over whether or not it's annoying, harmful, or benign; but I hope we can agree that, if prospective female engineers would like to be evaluated without regards to their sex, and schools would like to give them said opportunity, both the women and the schools should have the opportunity to do so. The system proposed by the ABA (and the one as practised now) prohibit such interaction.

If by "very small minority," you mean "about two dozen," fine. You find that to be a small minority; I find that to be a sizeable and not insignficant portion of the people with whom I interacted. Your experience as a male engineer was entirely different than mine as a female engineer. Please do not further insult me by pretending that those attitudes do not exist.
8.29.2007 1:19am
Brian K (mail):
but I hope we can agree that, if prospective female engineers would like to be evaluated without regards to their sex, and schools would like to give them said opportunity, both the women and the schools should have the opportunity to do so.
- this is a fine sentiment but the devil is in the details and i don't think you've made your case regarding AA.

If by "very small minority," you mean "about two dozen," fine. You find that to be a small minority; I find that to be a sizeable and not insignficant portion of the people with whom I interacted. Your experience as a male engineer was entirely different than mine as a female engineer. Please do not further insult me by pretending that those attitudes do not exist.
Your entire argument is predicated on experiences you had during college. I gave my counter experience to show that such experiences may be exaggerated and are otherwise not mainstream. If you don't want me insult to you (i don't see how i did this in the first...i never said they didn't exist just they were held by a small minority of people and are not common enough for me to hear it) then don't dismiss my experiences over 5 years of undergraduate schooling (i went premed and currently don't hear such sentiments in med school either) because they don't fully agree with your experiences.

and sure, i'll say "about two dozen" for the at least 800 or so students i shared classes with at some point. ucla is a very big engineering school and not all of classes were engineering classes. more accurately, lets say 1-2 for the 100 or so students i interacted with directly or indirectly on a normal basis.
8.29.2007 1:37am
Brian K (mail):
just to clarify...i have no doubt that anti-female sentiments exist and have existed for a very long time. but i've seen little evidence that AA has increased these sentiments. if anything it has decreased over the past 30-40 years. i believe it is likely that "she just got accepted because of AA" todays version of "why aren't you in the kitchen baking me a pie?"
8.29.2007 1:44am
Truth Seeker:
the net effect of hiring someone because they are a minority, because they are the boss's son or because their parents went to the same school is exactly the same. it denies a place for someone who would otherwise have been accepted/hired based on some sort of "merit" system*. it also breeds resentment, envy and ill will (the definition of invidious) in coworkers/classmates that had to work to get in.

There you have it! People are jealous because someone's parents help them, or their parents went to the same school, or they have money. Leftists want to smash those with advantage and force everyone to be equal. People aren't equal. Some are smarter, some are taller, some are beautiful, some have parent's money. Get used to it. Your totalitarian "utopia" is not to be.
8.29.2007 2:02am
Andy Freeman (mail):
> applicant A has a 4.0 GPA and is black. applicant B has a 2.1 GPA and is white. since applicant A only got into the school because of affirmative action is he is obviously less qualified than B and should not be hired. does it still sound reasonable?

Huh? According to the facts presented, applicant A, while black, probably didn't get in because of AA. (There are blacks who don't need AA to get in.)

However, let's deal with the world as it is. Suppose that I have two applicants in front of me with unknown GPAs. However, I know that AA lets in folks who don't do as well grade-wise. Does their skin color tell me anything about their likely GPAs?
8.29.2007 2:25am
Brian K (mail):
People aren't equal. Some are smarter, some are taller, some are beautiful, some have parent's money.
If you can so readily accept this, why can't you accept that some people are disadvantaged by race and/or sex? Or are you admitting that black/hispanics and women are really worth less or weaker or less capable than white males?
8.29.2007 2:27am
Just Thinking (mail):
There has been considerable call for the disclosure of information concerning admissions preferences. That should certainly happen. But pending those disclosures, I can attest, as the former chair of a law school admissions committee, that the preference given to African-American applicants is enormous. Rather than the proverbial thumb on the scale, the preference is an elephant.

The indisputable fact is that minority applicants, on average, have vastly lower numbers than white students. The question is how that should affect admission decisions. Because top-ranked schools dip well down into the minority pool to insure a signficant minority representation, lower-ranked schools must admit minority students with dubious credentials to insure that those schools, too, have a significant minority presence on campus. My view is that law schools and the profession in general would benefit if the elite schools were a little less liberal with minority admissions so that schools further down the pecking order did not have to admit so many students less likely to be successful.
8.29.2007 2:31am
Brian K (mail):
However, let's deal with the world as it is. Suppose that I have two applicants in front of me with unknown GPAs. However, I know that AA lets in folks who don't do as well grade-wise. Does their skin color tell me anything about their likely GPAs?
have you heard of this new fangled invention called a question? bear with me here as it's a little hard to explain especially since i used a question at the beginning of the explanation and it may have confused you. anyway, its this rhetorical device that allows you to find out information that you don't know. most normal people make heavy use of it during interviews...you should try using it some day.
8.29.2007 2:32am
Brian K (mail):
But pending those disclosures

and

The indisputable fact

these two don't make any sense. how can something be indisputable if you don't have any information to base the "fact" on? unless you really mean "opinion" when you say "fact" in which case it can be indisputable.
8.29.2007 2:36am
Tony Tutins (mail):
lower-ranked schools must admit minority students with dubious credentials to insure that those schools, too, have a significant minority presence on campus

Why? How does it benefit minority students to go to your school if they have no shot at passing the bar exam? To waste one to three years of their lives and take on massive debt? On the other hand, if they will make good lawyers, why shouldn't they go to an elite school? Unless your school provides the dubious ones free tuition, private tutoring, or both, you're just running a con game to make yourselves look good.
8.29.2007 2:43am
theobromophile (www):
Well, Brian, the implication with your experiences is 1) that they are more mainstream than mine; and 2) are more valid than mine. You then ask me to not dismiss your own. Um, pot, kettle... hello!

I did not interact with 800 students; I socialised with, in the relevant years (senior year of high school admissions up through sophomore year of college) perhaps 75, tops. (I was anti-social, what can I say. Studied all the time.)

Perhaps some of the issue is geography: you went to UCLA. The west coast is much friendlier towards women in the sciences (and to women in general).

Finally, what on earth do you mean by "the devil is in the details?" Really, can't the same be said for AA? Why the different burdens of proof - for AA to be presumptively reasonable (nay, required?) and for a race and gender blind system to be presumptively unreasonable? It is much simpler to set up a race/gender blind system: simply do not adjust GPAs or LSATs for race or gender. If the incoming class is 2% black and 40% female, so be it.

Somehow, I think Hell will freeze over before anyone looks at a white male and tells him that he only got into Swarthmore because he's a white male.

---

Many schools, especially liberal arts colleges, now practise affirmative action in order to increase male enrollment. Schools that are "too pink" find it hard to attract quality male and female candidates. Generally, more women graduate high school; more of those women go to college; women have better grades, better applications, and are more well-rounded; and have more rigourous courses.
8.29.2007 3:24am
David M. Nieporent (www):
If you can so readily accept this, why can't you accept that some people are disadvantaged by race and/or sex? Or are you admitting that black/hispanics and women are really worth less or weaker or less capable than white males?
You do realize that these two sentences contradict each other, right?



Your argument in this paragraph makes no sense to me. As I read it, you're saying that we should halt AA because some (many?) people have racist reactions to it. That doesn't strike me as a particularly persuasive ground for halting a government policy. Some people, I suppose, might refuse to join the Army because it accepts black soldiers. That would hardly be a reason for the Army to end its practice.
No; I'm saying that if AA is intended to help black people, and if -- that's an "if" -- it doesn't, then one should halt it regardless of whether it doesn't work because of Sanders' "racial mismatch" or because of "racist reactions" or because of sunspots.

I think "the policy doesn't work" would be "a particularly persuasive ground" for halting it.

(Although there's some basis for that view, that's not my argument against AA; my argument is based on social justice. But if AA doesn't work, that would make supporting it particularly ridiculous.)
8.29.2007 3:33am
Brian K (mail):
You do realize that these two sentences contradict each other, right?
good point. that's what i get for typing out a response while attempting to read about the mechanism of drug actions in my pharmacology lectures.

what i should have said in the first place:
if you believe that some things can be advantageous to someone then a required corollary is that some things can be disadvantageous to someone. if you think being taller is better then you must also believe that being shorter is worse. so why can't you admit that being black/hispanic or a women puts you at a distinct disadvantage even though there is no biological basis to infer that they are worth less or weaker or less capable than white males?

I'll add that statistical studies have proven that the minorities are indeed disadvantaged. e.g. healthcare
8.29.2007 3:47am
Brian K (mail):
Well, Brian, the implication with your experiences is 1) that they are more mainstream than mine; and 2) are more valid than mine. You then ask me to not dismiss your own. Um, pot, kettle... hello!
i didn't dismiss yours. i said that in my experience your experiences are not as prevalent as you make it seem...that is not the same thing as saying that your experiences never really happened. i know what you experienced can and does happen...i thought i made that clear.

my interactions with a greater number of people and the fact that i was very social and rarely studied seems to imply that my experiences are more mainstream. although the geographic disparity in our schools is a confounding variable that needs further analysis.

Why the different burdens of proof - for AA to be presumptively reasonable (nay, required?) and for a race and gender blind system to be presumptively unreasonable? It is much simpler to set up a race/gender blind system: simply do not adjust GPAs or LSATs for race or gender. If the incoming class is 2% black and 40% female, so be it.
what makes you think i apply different burdens of proof? you appear to be arguing that all AA should be ended. i have never once said that i categorically support all forms of AA...in fact i don't. where have i said that race/gender blind systems are unreasonable? i'm waiting for the day when society has advanced to the point that AA is no longer necessary and we are closer now than we have ever been as a country. if anything, your argument is definitely biased. you are making the presumption that all AA programs give the perception that "he only got in because he is black or a woman".

Somehow, I think Hell will freeze over before anyone looks at a white male and tells him that he only got into Swarthmore because he's a white male. directly contradicts this statement Many schools, especially liberal arts colleges, now practise affirmative action in order to increase male enrollment. Schools that are "too pink" find it hard to attract quality male and female candidates according to your logic.

Generally, more women graduate high school; more of those women go to college; women have better grades, better applications, and are more well-rounded; and have more rigourous courses.
hmmm...couldn't affirmative action programs have had something to do with this? the answer is a most definite yes. you can certainly make the argument (and i have) that AA is no longer necessary for women in general.
8.29.2007 4:01am
Happyshooter:
applicant A has a 4.0 GPA and is black. applicant B has a 2.1 GPA and is white. since applicant A only got into the school because of affirmative action is he is obviously less qualified than B and should not be hired. does it still sound reasonable?

Yes, at the University of Michigan Law School that is correct. The MAP program has the effect of raising the GPAs of black students above what it would otherwise be.

Also, the law review quota insures that many blacks on that publication also have not earned their position there.
8.29.2007 10:25am
Truth Seeker:
why can't you admit that being black/hispanic or a women puts you at a distinct disadvantage even though there is no biological basis to infer that they are worth less or weaker or less capable than white males?

If they are at a disadvantage, then what is the basis if not biological? Maybe cultural for families that don't own many books or teach their children that school is important.

I know what you'll say! The oppressive pratriarchal racist society! But that was 1950. This is 2007. What's their excuse???
8.29.2007 10:33am
J. Kindley (mail) (www):
All these headaches, all caused by the law profession's protection of its own interests and high legal fees via UPL laws at the expense of consumers of legal services and those who could otherwise earn money by providing legal advice. I'm sure there are plenty of minorities (and non-minorities) who could not pass the bar but who nevertheless are smart enough to learn particular areas of the law and provide good legal advice and services to others in their communities (including former criminals who have first hand experience of the system but are now prevented from becoming lawyers no matter how well do they do on the LSAT). Get rid of licensure laws (and keep private certification in its place so consumers still know whether a given legal advisor felt it necessary to attend seven years of higher education or to take and pass a bar exam) -- Problem solved.
8.29.2007 11:38am
Mark Field (mail):

People are jealous because someone's parents help them, or their parents went to the same school, or they have money. Leftists want to smash those with advantage and force everyone to be equal.


This makes no sense at all. The advantages you cite have nothing whatsoever to do with merit. If liberals want to curb the influence of those factors, that's a step towards meritocracy, not away from it.


No; I'm saying that if AA is intended to help black people, and if -- that's an "if" -- it doesn't, then one should halt it regardless of whether it doesn't work because of Sanders' "racial mismatch" or because of "racist reactions" or because of sunspots.


I'm surprised to find you supporting a heckler's veto. I know from 1A threads that you oppose them in that situation. In any case, and as I said above, such a veto is not a legitimate basis for opposing AA in my view. There may be other grounds for opposing it in general, or for opposing a specific program, but letting racist reactions define public policy is not high on my list of good ideas.
8.29.2007 12:33pm
Mark Field (mail):

If they are at a disadvantage, then what is the basis if not biological?


Do you intend to claim the biological inferiority of women and blacks as a serious argument, or are you just trolling?
8.29.2007 12:35pm
JosephSlater (mail):
Uriah:

I don't see any significant disagreement.

Thebromophile:

We seem to be miscommunicating. I thought I was responding to your claim that law was different than the sciences, in that in law there is no way to figure out how well students were doing, once admitted to the program. In fact, there are all sorts of ways that future employers use, including but not limited to grades/transcripts.

You now say your point was that there is no way for a black students' *classmates* -- "peers" -- to know how well a black student is doing. If that was always your point, and I misunderstood, I apologize.

I have two responses to that. First, yes, it is harder for classmates to know how other classmates are doing, although it's not impossible to get a decent sense. Students do talk about their grades with each other, and while some law reviews practice AA, many don't. And students get impressions of each other from class participation, moot court, clinics, and other law school functions.

But I'll grant that students typically know less about the performance of other students than employers typically discover. And I'll grant that some whites may feel that some blacks are "worse" students because they are the product of affirmative action in admissions.

My question is, should that really be a strong argument against the use of affirmative action? Especially since data shows that blacks themselves approve of affirmative action? I would bet that the majority of blacks in law school, if asked, would say, "yes, I think some of my white classmates think I'm less qualified than them because of AA, and I don't like that; BUT on the whole I'm still happy that there was an AA program that got me in."

That shouldn't be dispositive about AA policies as a whole. But as I said way upthread, given that a large majority of blacks support affirmative action, I would be skeptical about arguments (made mostly by white people) that we shouldn't use AA because it makes black folks feel bad.
8.29.2007 12:42pm
Andy Freeman (mail):
>> However, let's deal with the world as it is. Suppose that I have two applicants in front of me with unknown GPAs. However, I know that AA lets in folks who don't do as well grade-wise. Does their skin color tell me anything about their likely GPAs?

> have you heard of this new fangled invention called a question?

Yes, I have. It turns out that most interactions are not interviews where one gets to ask questions. You have to act on limited information.

Moreover, as it becomes known that different skin colors have different gpa distributions, the gpa question will become suspect and unaskable. (Employers can't prove that gpa is important but the distribution is such that acting on it will have a discriminatory effect, so out it goes.)
8.29.2007 1:12pm
Andy Freeman (mail):
>> However, let's deal with the world as it is. Suppose that I have two applicants in front of me with unknown GPAs. However, I know that AA lets in folks who don't do as well grade-wise. Does their skin color tell me anything about their likely GPAs?

> have you heard of this new fangled invention called a question?

Yes, I have. It turns out that most interactions are not interviews where one gets to ask questions. You have to act on limited information.

Moreover, as it becomes known that different skin colors have different gpa distributions, the gpa question will become suspect and unaskable. (Employers can't prove that gpa is important but the distribution is such that acting on it will have a discriminatory effect, so out it goes.)
8.29.2007 1:12pm
oshton (mail):
Just Thinking,

Your point is one that Sander made in his first article. If, for example, the top 15 schools took fewer applicants outside their normal credentials range, then a lot of schools could admit African-Americans without any preferences. Sander claims that the stats show that African-Americans perform like any other law students when their credentials match.

Notice, however, that you raise an issue of class war within the legal academy. Harvard would have to relinquish its lion's share of the best African-American students, and that's just not going to happen. Other top schools would have to do likewise. Again, that's just not going to happen.

In fact, Sander's entire project is threatening to elite law schools. It's not been surprising to see the vehemence his writings have received from those quarters. Because you were on an admissions committee, I assume you already know about all this. But to date there has been almost no airing of this issues.
8.29.2007 1:18pm
Brian K (mail):
Yes, I have. It turns out that most interactions are not interviews where one gets to ask questions. You have to act on limited information.
ahh...i see. you've switched scenarios because your first one didn't work out. this is no longer an interview for a job then but normal everyday interactions...and yes as joseph slater has pointed out numerous of times of this board there are ways of figuring out how good a person is at their job. anyone who has ever worked in an office setting can tell you that coworkers know who slacks off, who does lousy work, who is the go to guy, etc. your claim really is quite ridiculous.

Employers can't prove that gpa is important
Really? they can't prove this? this certainly is new information to me. for starters, if it can't be proven why is it in use? what is the logic of basing hiring decisions on something that has absolutely no predictive value? why do colleges always ask for it and why do most first time employers want to see it? i don't know how anyone can get through college let alone the first interview without knowing the answer to this question...it can be found in every guide to interviewing i've ever seen.
8.29.2007 2:16pm
theobromophile (www):
Joseph Slater,

We agree in principle, although not in application.

My issue (for a long time) has been the way that the ABA chooses to implement affirmative action - i.e. by mandate and by threatening schools with loss of accredition if they do not comply. Now, in the '60s and '70s, the ABA used its accrediting authority to demand access, but I do believe that there is a fundamental difference between equal opportunity and equal outcome.

As a libertarian, I really believe that the free market of education will work this out. If George Mason wants to admit purely based on merit (or, more specifically, without regards to race), such should be its prerogative. Some people would prefer such a system; we should not forbid such people an opportunity simply because the majority of blacks might not take it.

There is also something a bit strange about mandating affirmative action because blacks like it or may prefer it. We have operated under such a system for hundreds of years, except those who dictated admissions were white males.

I will, however, take slight issue with your assertion that blacks approve of affirmative action. Surely, one who gets into the University of Michigan instead of, say, Loyola, will concur; however, those who were do not pass the bar (and really had no chance of passing the bar). I do think that probability of success should trump AA - otherwise, we are putting blacks in a bad situation so that whites can have a better classroom experience.
8.29.2007 2:19pm
A.C.:
Brian K -

Sorry to take so much time to get back to you. My question for you is where you get your information. Most of the sources I've read about affirmative action have the following three things to say against it:

1) It hurts working class whites and Asians (not the real elites) most;
2) It creates an artificial bidding war for the top African American and Latino talent, often providing the most benefit to people from wealthy families who would be competitive (although not always quite so competitive) without it; and
3) It sets the most marginal African American and Latino students up for failure.

The piece that started this discussion off doesn't contradict any of this.

I've always seen AA as an effort by white elites to coopt members of the African American elite, not as a sincere effort to provide opportunity across the board. It's a way to be a good liberal without actually changing the structure of privilege in society.

And once you go down this line of reasoning, isn't the next step to look at the structure of privilege? I'm not a socialist, and I don't want to bankrupt the rich. However, I do think it's important for UNIVERSITIES to provide a merit-based route for individuals (not groups) to advance based on their own efforts. At the moment, they seem to be turning into a way to solidify and transmit upper and upper-middle class status. Bad move. This is the main problem I see, not affirmative action itself.

If I had to boil my problem with admissions AA down to one sentence, I'd say that it allows universities to buy their social justice credentials WAY too cheaply.

The connection to legacy admissions and admissions based on donations should be clear. That sort of thing is like all those old British novels about people buying commissions in the army. It's a good thing we haven't come to that.
8.29.2007 3:32pm
hughie (mail):
AC,

You are correct to focus on the class issue. The most vocal defenders of current AA practices in law schools will make an argument that is silently (or sometimes expressly) premised on the notion that it's for the good of society that many different groups pay a price so that a small group of elite institutions and a small group of elite URMs garner huge benefits.

I've never heard that argument made by anyone who is actually paying the price. You hear it from people who reap the benefit and expect others to pay the price.
8.29.2007 3:41pm
Brian K (mail):
My question for you is where you get your information.
I'm not sure which claims in specific you are referring to.

As to you claims:
1) I agree. which is why i am for or against certain AA programs depending on how i perceive its potential impact on whites and minorities.
2) I agree...this is not a problem with AA in general, but only with the "on the cheap" AA that is practiced all too often. I prefer outreach and targeted education programs that start at a young age over quotas. but i realize that there must also be some preference in current admission policies because there is a 15-20 year time lag in outreach programs.
3) I disagree here. its not the AA program itself that sets people up for failure...its what happens after the AA program.

I've always seen AA as an effort by white elites to coopt members of the African American elite, not as a sincere effort to provide opportunity across the board. It's a way to be a good liberal without actually changing the structure of privilege in society.
I don't really know what to say here...i find this observation so patently absurd in regards to the vast majority of AA supporters.

However, I do think it's important for UNIVERSITIES to provide a merit-based route for individuals (not groups) to advance based on their own efforts.
In an ideal world this would be true. but given the massive disparities in K-12 education between rich and predominately white schools and poor and predominately black schools this is not realistic at this time. (this is why i prefer outreach programs as they combat this disparity). until you give individuals equal chances to compete in a merit system institutionalizing one will just restrict certain people to the lower rungs of society solely because they were born black or brown or poor or female.

The connection to legacy admissions and admissions based on donations should be clear.
its not. does the mere fact that someones parent or uncle graduated from yale automatically make them more likely to succeed at yale? if you truly want a merit based route you'd argue for the eliminatino of both of these types of admissions because neither of them are clearly based on merit. they are practiced in order to bring in more donations and an argument can be made for them for this reason. more money + increased school loyalty = better post graduation jobs + better perception. but the exact same argument can be made for admitting blacks in order to increase diversity (i.e. AA). more diversity = better social perception + money and support from certain segments of the population = better post graduate jobs. i don't see how you can be for a system based on merit and simultaneously support legacy and wealth based admissions...especially when both "solidify and transmit upper and upper-middle class status" to use your own words.
8.29.2007 4:08pm
Elliot123 (mail):
I would suggest that race be an option on applications. Those who choose not to disclose their race will be evaluated in the normal pool of applicants, and will compete head to head with everyone else. Those who choose to disclose race, and are black, will receive the special preferences. However, the subsequent transcripts will disclose if the non-AA option was chosen. Those who earned their place without regard to race should have that fact clearly displayed.
8.29.2007 4:33pm
BigLaw escapee:
Anyone who has worked in BigLaw has seen certain dynamics involving new African-American lawyers. Some get dumped with all the doc review. Others get trotted out to all court appearances, especially before minority judges, but are given little responsibility for preparing the papers. Many wash out in the first three years, or are allowed more float time until 5-6, but that's it.

The solid achievers, who did not need AA to get into their schools, usually have to perform at a higher level to convince the powers that be that they got a "real" Harvard [or whatever] degree, not the AA freebie. Many of them oppose AA, and resent their washout peers, in their hearts, and will admit it to close friends, but do not want to publicly speak out and get trashed like Clarence Thomas. ("How dare you oppose AA after it helped you . . ." etc.)

The BigLaw washouts often end up in government, where one can get very far with little skill or work. That's not to say that there aren't many brilliant and hard-working public servants, including lawyers. But anyone who doesn't admit that there are many unproductive paper shufflers in government either (a) hasn't worked in government or (b) isn't honest.

The real losers in AA-for-lawyers are the clients of the marginal, fourth-try bar passers. Ineffective assistance abounds.

But if it makes white liberals feel good, and allows us to avoid facing massive structural change in K-12, then it's all worth it, right?
8.29.2007 5:17pm
JosephSlater (mail):
Theobromophile:

I'm glad we agree in principle. I'm not sure to what extent we disagree in application, because in this thread, I have not advocated for or against any particular type of affirmative action in law school admissions. All I've said was that (i) employers (current and prospective) and to a lesser extent classmates can evaluate how students admitted pursuant to AA have done/are doing in school; and (ii) I'm skeptical of claims made by mostly white folks that an important reason to oppose AA is that it makes black folks feel bad, given my understanding that a clear majority of black folks favor AA.

I haven't commented on the ABA policy because, frankly, I haven't studied it. As to your hypo re George Mason, I would repeat that whether black folks generally approve of affirmative action is not a dispositive reason to have AA, but it should some pause to those who argue against AA specifically because they claim it makes AA beneficiaries feel badly.

To the extent I support some types of AA, it's not in order to give white students a better experience. I support certain AA measures because of historical and continuing discrimnation against certain groups. Unfortunately (IMHO), the Supreme Court decided that correcting this wasn't a sufficiently compelling state interest; instead, "diversity" was. So AA proponents have mostly been forced to argue the merits of diversity.

I would continue, but the discussion could go on forever, and without some pretty specific examples of policies, it would be hard to have a meaningful discussion.

Finally, as to folks who get into lower ranked law schools and fail the bar, I don't have specific stats on how much they do or don't like AA, I won't presume to speak for them, and I assume opinions may differ. But I wouldn't assume most of them felt bad about AA -- I might think many were happy to have had the opportunity. Again, that only goes to rebut the "oppose AA because it makes its beneficiaries feel bad" argument.
8.29.2007 5:21pm
78486 (mail):

The solid achievers, who did not need AA to get into their schools, usually have to perform at a higher level to convince the powers that be that they got a "real" Harvard [or whatever] degree, not the AA freebie.


The number of African-American students who fall into that category number only about two or three dozen each year. Virtually all of them go to Yale, Harvard or Stanford. Virtually none of them are from lower socio-economic backgrounds.
8.29.2007 5:59pm
A.C.:
Brian K -

We do agree on more than it seems at first. I am very much in favor of ABOLISHING legacy admissions and breaks for children of the rich. I don't want to keep such programs, and indeed I think that getting rid of them is a higher priority than getting rid of AA. A few people here want to keep them while getting rid of AA, but that's not me. My concern is always for the kid who gets no preference based on social advantage OR disadvantage -- the vast lower middle, of whatever color. It's the group that gets ignored (or sometimes disparaged) in academic conversations, but it's where the up-and-comers actually come from.

We also agree on outreach in poorer school districts. And I would bet we also agree on self-help within minority communities. Asian and non-elite white groups have figured out how to work standardized testing to their advantage... a killer LSAT score can do a lot to compensate for a resume that includes lots of restaurant work and no posh internships. I am quite certain that African Americans and Latinos can do this too (I certainly don't believe there's any problem about innate intelligence in either case), but there may not be enough incentive to do so under the current system.

I don't think AA will actually go away in the next decade, but I do think we will see it morphing into a socioeconomic phenomenon rather than a racial one. It's long past the time we could assume that all black and Latino students were disadvantaged -- many are from the ruling classes in other countries, and plenty of minority Americans are becoming prosperous. And it was never the case that all white Americans were part of the elite. I went to college with a white woman whose parents were mentally retarded. She was definitely not, but she stood out among the children of lawyers and business executives.

As for the coopting, what do you call what actually goes on? Not the stated rationale, but what actually happens? Or are the current social hierarchies so entrenched that nobody even expects to see them challenged?
8.29.2007 6:27pm
Brian K (mail):
I am very much in favor of ABOLISHING legacy admissions and breaks for children of the rich.
i apologize for misunderstanding your argument.

My concern is always for the kid who gets no preference based on social advantage OR disadvantage -- the vast lower middle, of whatever color.
I agree and have argued in the past that AA based on relative poverty level would be better than AA based on race (but i don't think the same can be said for AA based on sex).

And I would bet we also agree on self-help within minority communities.
you'd be right.

Asian and non-elite white groups have figured out how to work standardized testing to their advantage
i've seen some pretty convincing studies that standardized as currently written favor certain socioeconomic groups...particularly with respect to word and/or passage choice. but i agree that incentives to fix the system are lacking.

I don't think AA will actually go away in the next decade, but I do think we will see it morphing into a socioeconomic phenomenon rather than a racial one.
I hope so.

As for the coopting, what do you call what actually goes on? Not the stated rationale, but what actually happens? Or are the current social hierarchies so entrenched that nobody even expects to see them challenged?
I few people take advantage of the AA movement for power, just like a few people take advantage of the "family values" movement for power...i don't like it, but i can't deny that it happens. Most of the AA supporters genuinely want to reverse the disparities between white and minority, male and female, poor and wealthy and even the playing field. To do this they have to fight against entrenched social hierarchies and, absent revolution or some similar upheavel, that is a very difficult and time consuming process. in my experience the majority of AA support comes from upper and middle middle class white and lower class minorities. these people either have the most to gain or the least to lose from AA. most of the people against AA are lower income whites and the upper class, regardless of race, as these people have the most to lose. to get back to your original point...i think you have it backwards. people do not support AA to further entrench existing class structures but people oppose AA to maintain existing class structures. (it should go without saying that this only describes the majority of people...individuals will have varying reasons and many probably haven't thought their positions out to the logical conclusions)
8.29.2007 6:54pm
Brian K (mail):
My concern is always for the kid who gets no preference based on social advantage OR disadvantage -- the vast lower middle, of whatever color.
i'm going to add to this that i don't see this as a valid reason to abolish all forms of AA. you don't correct harm to one group of people by ensuring that harm continues to occur to another group of people. this is a reason to alter some of the current AA programs to more accurately help those that need help and only those that need help.
8.29.2007 6:58pm
random guy:
If many or most African-American applicants to law school are now well-off, and from better schools, why is there still such a lag in LSATs? Could it possibly be that some don't prep for the test in the knowledge that they need not clear as high of a bar? Or is it the social pressure not to study in undergrad or high school for fear of "acting white," and such lack of study shows up in even standardized test scores?

Something has to explain the horrible numbers about how so few hit the highest LSAT ranges, when the pool of upscale applicants has grown so much. I'm not buying any Bell Curve type stuff about inborn IQ, so something has to explain this. Ideas?
8.29.2007 7:11pm
Andy Freeman (mail):
> you've switched scenarios because your first one didn't work out. this is no longer an interview for a job then but normal everyday interactions.

No, I haven't changed anything - I never said anything about interviews. I said that one was in a situation where two facts were known about two people and a decision had to be made. Since when is it common to interview multiple candidates together?

>>Employers can't prove that gpa is important
> Really? they can't prove this?

I'm going off what I can't ask in another field, where my company's attorneys have told me that I can't ask candidates to demonstrate certain skills that are part of the job. gpa is certainly less relevant, even if the argument hasn't been made in court. Then again, maybe the rules are different for law firms.

> for starters, if it can't be proven why is it in use? what is the logic of basing hiring decisions on something that has absolutely no predictive value?

Lots of things are used in interviews that turn out to have no predictive value. That's one of the consistent results of studying interviewing.

> why do colleges always ask for it

Grades do predict grades, we're talking about grades predicting lawyering.

However, if you're going to argue that gpas do predict, why would a potential client (who is in no position to ask gpa), consider a lawyer whose skin color has an unfortunate gpa distribution?
8.29.2007 8:18pm
theobromophile (www):
Joseph Slater,

The ABA issue is whether or not schools can be FORCED to implement affirmative action. As is my understanding, they are pressured to now; the new interpretation of the diversity rule would essentially require them to do so. (They could theoretically meet the "concerte commitment to diversity" standard by other means, but none of them would guarantee continued accreditation, and risk-adverse law school administrations would be unwise to test the waters.) The end result is that schools monitor, daily, the number of minority admits, admit virtually the same percentage every year, and, should they try to abolish AA, are threatened with loss of or suspension of their accreditation.

IMHO, this is insanity. If AA is a Constitutional freedom (academic freedom of universities), it cannot be forced upon law schools. It is much akin to forcing law students to carry guns, as the right to do so is guaranteed under the Second Amendment.

I come to my understanding of the negative effects of AA upon blacks from research, what others have said to me, and correlations with my own life as a female engineer and a supposed recipient of affirmative action. (Oddly, women outperform their male peers in most engineering schools and are a more self-selected applicant pool; the effect of AA is minimal and its perception arises entirely from the higher admissions rate of women into those programmes, not any gap in credentials or performance. Even with those stats, good luck proving yourself.) It is often said that blacks or women are presumed incompetent; IMHO, affirmative action only provides more ammunition. If someone doesn't want to give their detractors the ammo, such should be their choice; if schools want to exist in a race-blind manner, such is their Constitutional prerogative.
8.29.2007 8:36pm
Brian K (mail):
Andy,

Suppose that I have two applicants in front of me with unknown GPAs.

What are they applying for? and since race is usually not listed on resume, i assumed the hypothetical person is making this judgement the first time he meets the applicants - usually at the interview.
8.29.2007 8:43pm
JosephSlater (mail):
Theobromophile:

Reading up on the ABA policy is on my list of things to do. FWIW, I was never much enamored of the "AA is OK because of academic freedom" argument. Again, I think advocates of AA got put in an awkward spot because the Supreme Court rejected the justification based on historic and on-going societal discrimination -- the best justification for AA, IMHO.
8.29.2007 8:46pm
theobromophile (www):

Again, I think advocates of AA got put in an awkward spot because the Supreme Court rejected the justification based on historic and on-going societal discrimination -- the best justification for AA, IMHO.

Well, yes. That justification also gets you to the ideal place I mentioned a day or so ago: the top tier of schools would take the black kids who are capable, while the lower tiers would be, for the most part, lilly-white.

I still have not heard a good justification for FORCING schools to implement AA. Again, equal opportunity and equal outcomes are different creatures.

Been meaning to blog about this for a while (a year, actually).
8.29.2007 9:00pm
just me:
Mr. Slater -

If the better justification is remedying historical discrimination, and not the diversity theory, then would you limit AA to the descendants of those that American society has discriminated against, i.e., African-Americans descended from slaves, Native Americans, etc.

Today's AA disproportionately helps fresh-off-boat Caribbeans and Africans, as well as the occasional Saudi prince's kid and so on. Or, if not fresh immigrants, it's often second-generation Caribbeans whose parents came in the 60s.

To justify helping them, one has to focus less on the horrible legacy of slavery, and more on either (1) the recent or present discrimination they've faced in America, or (2) the theory that we ought to consider how different groups have been mistreated in their homelands outside the USA.

On idea (1), I don't want to open the whole argument on how things are good or bad today, but it is a fair question whether the last few decades of residual racism are, standing alone, enough to justify favored treatment. Also, in many cases, a new Nigerian immigrant may face no more discrimination in 2007 America than a new Pakistani immigrant, but the latter get lumped under "Asian" and are screwed by AA more than any Euro-descended American. Those whose parents came in the 1940s, like Colin Powell's, would fall in the middle, as they did still see segregation in America, but not slavery or sharecropping. Trying to weight that is impossible, but not trying means a big mismatch between the intended recipients and the actual recipients.

Option (2) seems even worse. Many groups around the world have been mistreated in their home countries by another group, and more so than Jamaicans in Jamaica. Kurds? Hmong? How about Jews whose ancestors were one step ahead of the Holocaust? But again, they're on the losing end of AA. Would we create an index of "how much our ancestors got screwed around the globe?" ??

So if you're going to switch theories from diversity to remedying history, you'd also have to radically change AA's practical operation, wouldn't you?
8.30.2007 6:31pm
Elliot123 (mail):
We might also add the Mexican who crosses the border and then benefits from AA. Why?
8.31.2007 4:18pm
Benjamin Davis (mail):
Enjoyed reading all the comments. On blacks with high grades in law school not needing affirmative action, a generation ago blacks with high grades in high school were not allowed in more than token numbers (like one every ten years) to other than historically black colleges. In addition, even having done well in those schools there was no room at the inn in other than historically black law schools. And, even if one had got through law school with high grades getting a job and doing something was problematic at one of the toney law firms, as a professor at a majority law school, or in the clerkships etc that are the positions of "success" in this society. All these places routinely discriminated against blacks and women and jews. Does anyone remember a Howard grad in the 50's getting a Supreme Court clerkship? At that time you could not find a black (or more than one or two) at Harvard or Stanford or wherever.

I think all blacks need affirmative action because in the absence of it, this society has shown a fairly strong disposition over 400 years to keep blacks out of the paths to success. With affirmative actions presence, the gatekeepers at the entryways to success in this country are forced to do more than just sit around and be passive about the absence of minorities in the given profession. Once in, those minorities have a chance to perform that I think would not be there without affirmatice action because the school's would keep them out. And the same at the law firms and other employers.

As to there being relatively more affirmative action candidates who are black as opposed to hispanic, asian or white women, one of the things I love is that persons seem to forget 30-40 years ago when none of these persons were seen in law schools. And after 1970 and Nixon starting affirmative action, so many of these persons came into the law and flourished. Prior to 1970 many of these people had great scores but were steered other places because law schools were a white male preserve.

And, I salute those who take the chance on the poorest and weakest - the least of these as I learned in my faith - to try to lift them up.

"The arc of the moral universe is long but it bends towards justice" as Martin Luther King said.

Peace,
Ben
9.1.2007 4:11pm
Elliot123 (mail):
Ben,

Today blacks need AA because many can't compete head to head with other groups. Those who can compete certainly don't need it.

The country has indeed shown a tendency to discriminate on race. Is it your contention that without AA today's universities would be rejecting blacks because of their color? Wouldn't it be very simple to police that by releasing grades, test scores, and race of all applicants? (Anyone remember the flap at Georgetown Law when such records were released by a student?) Do you see a tendency or inclination among admission deans to keep blacks out of school because of their color? Where? What schools?

You are correct that Asian and white women were not represented in law schools. However, as you note, the major problem was that they had both grades and test score to compete, but were still rejected. When the racial/gender discrimination was lifted, they had no problem.

And those gatekeepers to professions? Is it their job to ensure the best future practitioners, or to ensure diversity withing the profession? Is the bar association a gatekeeper? Should it be using AA on the bar exam?

I don't know why middle class blacks can't compete head to head with poor whites. Given the history of the country is it your position that blacks should have AA forever? Is it the country that has to change, or is it the achievement level of the black applicants that has to change before AA can be dropped? Does AA help that achievement level?

Joseph Jett wrote a fascinating book a few years back titled Black and White on Wall Street. Jett is black, and refused to apply to MIT as a black. He checked the "white box." He was admitted and excelled. He also checked the white box when applying to Kidder. Again he was hired and excelled. But, at both places, he said, he incurred the wrath of the black equal opportunity personnel people because he refused to participate in any of their special programs for blacks. They insisted all blacks had to receive their AA help. Jett, to his credit, refused. (The book is far more than a racial study. Bond traders and anyone who has ever wrestled with securities regulators will find it very interesting.)
9.1.2007 4:53pm