Well, after thirty years, the L.A. Slimes in finally getting it right. "In
general, research shows that 50% of black law students end up in the
bottom
10th of their class, and that they are more than twice as likely to drop
out
as white students. Only one in three black students who start law school
graduate and pass the bar on their first attempt; most never become
lawyers." Yeah, Tyrone, it's time you buckled down and studied instead of
whining about your skin color...
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Does affirmative action hurt minorities?
Racial preferences may be setting up many black and Latino law students
for
failure.
By Vikram Amar and Richard H. Sander
September 26, 2007
IMAGINE, FOR A MOMENT, that a program designed to aid disadvantaged
students
might, instead, be seriously undermining their performance. Imagine that
the
schools administering the programs were told that the programs might be
having this boomerang effect -- but that no one investigated further
because
the programs were so popular and the prospect of change was so politically
controversial.
Now imagine that an agency had collected enough information on student
performance that it might, by carefully studying or releasing the data,
illuminate both the problem and the possible solutions. What should the
agency do?
This is not a hypothetical question. The schools involved are dozens of
law
schools in California and elsewhere, and the program is the system of
affirmative action that enables hundreds of minority law students to
attend
more elite institutions than their credentials alone would allow. Data
from
across the country suggest to some researchers that when law students
attend
schools where their credentials (including LSAT scores and college grades)
are much lower than the median at the school, they actually learn less,
are
less likely to graduate and are nearly twice as likely to fail the bar
exam
than they would have been had they gone to less elite schools. This is
known
as the "mismatch effect."
The mismatch theory is controversial. One of us (Sander) has advanced it
in
the academic literature. The other (Amar) believes that while it raises
substantial questions, it has not been empirically proved. Some dismiss
the
whole idea as nothing more than a politically motivated attack on
affirmative action or, even worse, an attack on blacks and Latinos -- the
main recipients of current preferences. Many rightly point out that
definitive conclusions are difficult because the data available to
researchers thus far have been limited in very important ways.
Still, certain facts are indisputable. Data from one selective California
law school from 2005 show that students who received large preferences
were
10 times as likely to fail the California bar as students who received no
preference. After the passage of Proposition 209, which limited the use of
racial preferences at California's public universities, in-state bar
passage
rates for blacks and Latinos went up relative to out-of-state bar passage
rates. To the extent that students of color moved from UC schools to less
elite ones (as seems likely), the post-209 experience is consistent with
the
mismatch theory.
In general, research shows that 50% of black law students end up in the
bottom 10th of their class, and that they are more than twice as likely to
drop out as white students. Only one in three black students who start law
school graduate and pass the bar on their first attempt; most never become
lawyers. How much of this might be attributable to the mismatch effect of
affirmative action is still a matter of debate, but the problem cries out
for attention.
A lot of legal scholars who focus on empirical work agree that the
mismatch
effect deserves serious study. A few weeks ago, the U.S. Commission on
Civil
Rights issued a 280-page report on these issues that came to the same
conclusion.
The best data in the nation for studying any mismatch effect in law
schools
reside in the archives of the State Bar of California, the state agency
that
administers the bar exam and oversees the conduct of lawyers. Starting in
the 1980s, the California bar has maintained careful records on the
backgrounds of bar exam-takers and their performance on its tests. With
this
data, it is possible to compare how students with similar college grades
and
LSAT scores do on the bar when they've attended different law schools and
experienced different types of legal education. It is also possible to
more
deeply compare the bar performance of minority students before and after
Proposition 209 and use other careful techniques to test whether the
mismatch effect exists.
Given the richness of the data and the intensity of interest in the
mismatch
issue, it was not surprising that a blue-ribbon panel of diverse scholars
(including both of us) approached the bar with a detailed proposal to
study
its data, backed by full funding and letters of support from dozens of
scholars, law school deans and public officials.
But although the California bar was initially enthusiastic, one of its
committees recently rejected the study proposal. Its stated reasons are
implausible; it expressed concern, for example, about disclosing
confidential information; but the proposed study includes the bar's own
in-house expert, thus mooting the need for any data release.
It seems more probable that the bar, like many law schools, is simply
queasy
about touching a delicate area. The Society of American Law Teachers
captured this sentiment in a letter it sent the California bar, cautioning
it against releasing the information because, it said, "SALT is concerned
about the potential negative impacts upon minority bar applicants and
attorneys" who "already face a variety of misperceptions about their
qualifications." By this reasoning, no one should seriously attempt to get
to the bottom of racial disparities in bar performance because the attempt
itself would make more people aware of the disparities!
We know of no serious scholar who has denied, or reasonably could deny,
that
the study we're proposing would shed some important light on a vital
public
policy issue. It would not be the final word on mismatch theory, no doubt,
but it would be an important step that would advance understanding of the
subject. We hope the bar's board of governors, which oversees what is,
after
all, a public agency, will reconsider in the coming weeks and decide to
make
its make its information available for research.
A generation ago, the late U.S. Supreme Court Justice Harry Blackmun wrote
in Regents of UC vs. Bakke, the famous UC Davis affirmative action case,
that for society to get beyond race, the government must first take
account
of race. Last summer, Chief Justice John G. Roberts Jr. countered that the
way to get beyond racial discrimination was for government to stop using
race as a consideration. We suspect both justices would agree that however
one feels about race-conscious school admissions policies, it is vital
that
we do our best to understand the effects of those policies, and doing that
requires more, not less, analysis of real-world data.
Vikram Amar is a professor of law at UC Davis School of Law. Richard H.
Sander is a professor of law at UCLA.
http://www.latimes.com/news/opinion/commentary/la-oe-sander26sep26,0,6771289.story?coll=la-home-commentary
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