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Wednesday, December 01, 2004

Is affirmative action hurting black law students?

A Lucas Morel editorial for the Ashbrook Center reports that an upcoming article by Richard H. Sander of UCLA in Stanford Law Review tackles the question of whether affirmative action in law school admissions actually benefits black students (here is a pre-publication draft). Not to spoil a good read, but Sander's conclusions are astounding. First, he finds that there are only two real benefits to such policies: (1) black students can expect a 20-50 step bump (out of 184) in the quality of school they would attend if race were not taken into consideration, and (2) over 500 additional black students are able to get into law school than would without affirmative action.

On the other side of the coin, Sanders identifies six major costs to allowing affirmative action:

1. Black students have are at a large academic disadvantage, with nearly 50% of first year black students finishing in the bottom 10% of their respective classes.

2. The poor grades of black students create an attrition rate for black students 135% greater than for white students.

3. Low grades and poor performers also lead to much lower bar passage rates than white students.

4. The job-finding benefits of graduating from a more prestigious school are offset by the comparative lower GPA in 2 out of 3 cases.

5. Few of the 14% of black law students who would not be in law school were preferences abolished become successful lawyers (with on 1/5 passing the bar on the first attempt and, astoundingly, more than 2/3 never passing the bar).

6. According to Sander's calculations, if racial preferences were abolished, we could expect roughly 8% more black attorneys graduating this year and 22% more passing the bar on the first try.

After noting that his research destroys the justification for O'Connor's decision in Grutter, Sanders states,

All of the Supreme Court's decisions about affirmative action in higher education presume that the discrimination involved is fundamentally benign. It is tolerable only because it operates on behalf of a politically vulnerable minority--that is, African Americans. A preferences program that operated on behalf of whites would be unconstitutional beyond question.

Yet if the findings in this Article are correct, blacks are the victims of law school programs of affirmative action, not the beneficiaries. The programs set blacks up for failure in school, aggravate attrition rates, turn the bar exam into a major hurdle, disadvantage most blacks in the job market, and depress the overall production of black lawyers. Whites, in contrast, arguably benefit from preferences in a number of ways.
Sander, a confirmed liberal, admits that his calculations regarding the effect of racial preferences on matriculating black lawyers is open to debate, but he states that even under a best case scenario such preferences are of no actual benefit to blacks. It doesn't take a Subway Sandwich Artist to tell that this conclusion is going to spawn a cottage industry of critique articles (Milbarge alone should be able to drum up 5,000 words without breaking a sweat). Anticipating the heat, Sander states over and over that the negative conclusions in his article are not a result of race, but of less qualified candidates being allowed access to law school. I have little doubt that this honest disclaimer will have as much effect stemming the hellfire from the race-quota supporters as a blade of grass has of damming a river, but hope springs eternal.

While it's clear that Sander believes that affirmative action should be abolished, it is equally clear that quota pushers will be churning out there own numbers contesting this entire conclusion. Sanders, realizing this, has suggested instead that all black law applicants should receive a sheet from each school showing (1) the median academic index (or test scores and undergraduate grades, if no index is used) of admitted and enrolled applicants, by race; (2) the median class rank of each racial or ethnic group whose identity is a factor in admissions; and (3) the pass rate of recent graduates from each group on the bar of the school's home state. Such an unbiased report would at least give the applicant an understanding of his or her chances of success.

Sander and his critics aside, thanks to institutionalized preference systems we really don't know what the impact of affirmative action has been on the average black student. The Supreme Court has built their affirmative action support around diversity -- not for its own sake, but because it yields educational benefits, such as "break[ing] down racial stereotypes, and 'enabl[ing] [students] to better understand persons of different races.'" If Sander is correct, the Supreme Court has officially ordained the principal that states can benefit white students (though having a diverse student body) at the expense of black students (by limiting their ability to become successful lawyers).
Centinel 2:07 PM #


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