See Part One and Part Three of our three-part series on affirmative action.
Groucho Marx’s quip “I don’t want to belong to any club that will accept people like me as a member” is considered a classic confession of low self-esteem. But what if the quick-witted man with the mustache was right? What if turning down an invitation from a prestigious organization — say, an educational institution — is ultimately in one’s self-interest?
That appears to be the case for some students accepted into top-tier law schools as part of an affirmative action program, said law professor Richard Sander of the University of California, Los Angeles. His provocative research suggests affirmative action, at least on the law school level, may be doing more harm than good.
“We shouldn’t be hurting anyone who is being given what is being advertised as help,” insisted Sander, who favors race-conscious admissions strategies in principle but sees huge problems in their implementation. In a landmark study published in the May 2005 Stanford Law Review, he challenges assumptions the educational community has accepted for decades. Among his findings:
“The admission preferences extended to blacks (in America’s law schools) are very large and do not successfully identify students who will perform better than one would predict based on their academic indices. Consequently, most black law applicants end up at schools where they will struggle academically and fail at higher rates than they would in the absence of preferences.
“The net trade-off of higher prestige but weaker academic performance substantially harms black performance on bar exams and harms most new black lawyers on the job market. Perhaps most remarkably, a strong case can be made that in the legal education system as a whole, racial preferences end up producing fewer black lawyers each year than would be produced by a race-blind system.”
In an interview, Sander backed off slightly from that final assertion of three years ago. “If part of what affirmative action is doing is persuading minority students that law schools are an inviting place,” the net result may indeed be more black lawyers, he said.
Nevertheless, he remains convinced that many black law students are being hurt by affirmative action. Sander calls this the “mismatch hypothesis,” in which students are admitted into rigorous programs in spite of having LSAT scores and undergraduate grade-point averages that are far below their peers. In such an environment, they understandably find it difficult to keep up. Sander considers this a major reason why black students are far more likely than whites to drop out of law school.
“When a student has credentials much lower than their classmates, it’s plausible they will learn less than in an environment where their classmates are closer to them academically,” Sander said. “I don’t think that situation necessarily has bad effects in every learning environment. You can easily imagine situations where being surrounded by stronger peers has a stimulating effect and encourages you to rise to the challenge. But the evidence suggests the effect is quite bad in law school.”
Evidence such as?
“My second Stanford piece looked at a group of law school students, some of whom went to the most elite school that accepted them and others of whom went to the second- or third-most elite school that accepted them,” he said. “They passed up their ‘first choice’ school because of geographical or financial concerns. It turned out that the black students who went to less-elite schools were half as likely to fail the bar exam once they graduated, compared to those who went to the more-elite schools.
“That lines up with all sorts of other data we have found. At a number of individual law schools, students who received large preferences have very low bar-passage rates — sometimes in the 20 to 30 percent range, even though students with similar credentials are doing much better at less-elite schools.”
Other scholars who study affirmative action have reacted to these findings with caution and some skepticism, often questioning his methodology. (Sander says follow-up studies by himself and others are coming out later this year, which should put to rest such concerns.) The environment at the nation’s top law schools is, arguably, more intense and competitive than it is for undergraduates, so it’s not clear if his formula is applicable to higher education as a whole.
“His ‘mismatch hypothesis’ — if you’re sending someone to the wrong school, they’ll get overwhelmed — makes sense in theory,” said Angelo Ancheta, an assistant professor of law at Santa Clara University. “I’m sure that can occur. But I don’t think it’s an indictment of the entire system of affirmative action.
“No school wants to admit someone who is not qualified and can’t do the work. At the margins, you might say, ‘Let’s be careful about this particular student.’ But I don’t think that’s sufficient reason to trash the entire system.”
Goodwin Liu, an assistant professor of law at the University of California- Berkeley, finds Sander’s findings somewhat counterintuitive. “His argument is that black students, over the course of generations, have essentially been fooled by affirmative action,” he said. “They’ve been told to go to these great schools, at considerable expense, even though, according to him, it eventually hurts them in the aggregate. Is it really possible that over the course of 20 or 30 years, nobody has caught on?
“That’s not to say his data is wrong. But if you’re going to accept Sander’s conclusion, you have to wonder why these students continue to hurt themselves year after year after year by going to those top schools. If you can’t (pass the bar or) get a job afterwards, you’d think people would wise up. An alternative thought is there are some effects that Sander identifies, but the students who go to these schools believe there are other benefits that outweigh those costs.”
What happens if additional research shows Sander is right?
“Then the question is should law schools could provide more attention to (these students)?” Liu said. “One implication might be that those better schools should be devoting more attention to the needs of those students to increase their bar-passage rates.”
Sander’s unhesitating embrace of that idea suggests he and his critics share a significant amount of common ground.
“We have many elite schools, and even second- and third-tier schools, that (accept certain students on the basis of affirmative action), but don’t take any responsibility for the academic outcomes of the beneficiaries of those preferences,” he said. “That’s something the profession needs to be concerned about. If schools are going to admit someone, they should track their performance and provide opportunities for interventions if the student is having trouble.”
Of course, that would entail taking a hard look at how well a school is functioning and being willing to make major changes —characteristics that aren’t universally true of educational bureaucracies.
“Universities are allergic to asking questions that touch on the area of preferences,” Sander said. “Throughout higher education, we need more transparency and greater accountability.”
Top law schools as ranked in the ninth annual Thomas M. Cooley Law School Judging the Law Schools Study (2007):
1 Harvard University
2 Georgetown University
3 University of Texas
4 University of Virginia
5 Northwestern University
6 New York University
7 Columbia University
8 Yale Law School
9 University of Michigan
10 University of Minnesota
Ranked by total minority enrollment and how the top schools and selected well-known schools compared:
1 Inter American University 833
2 Thomas M. Cooley Law School 805
3 University of Puerto Rico 692
4 Texas Southern University 545
5 Harvard Law School 526
6 Pontifical Catholic University of P.R. 509
7 Loyola Law School 505
8 American University 503
9 Georgetown University 478
10 George Washington University 438
—
11 University of Texas 416
18 Columbia University 360
20 New York University 345
22 University of California – Los Angeles 321
23 University of Michigan 314
33 Northwestern University 266
35 University of California – Berkeley 264
40 University of Southern California 238
44 University of Pennsylvania 231
68 University of Chicago 179
71 Yale Law School 171
73 Stanford University 168
Ranked by total minority enrollment and how the top schools and selected well-known schools compared:
1 Inter American University 100
1 Pontifical Catholic University of P.R. 100
3 University of Puerto Rico 98.6
4 Howard University 84
5 Texas Southern University 82.8
6 Florida A&M University 68.6
7 University of Hawaii 68.2
8 Southern University 57.5
9 Florida International University 53.9
10 North Carolina Central University 51.6
—
15 University of Southern California 39.3
20 Northwestern University 34.6
28 University of Texas at Austin 31.7
30 University of California – Los Angeles 31.5
30 Stanford University 31.5
33 Harvard Law School 30.6
34 University of Pennsylvania 30.3
36 University of California – Berkeley 30
37 University of Chicago 29.8
38 Yale Law School 29.5
39 Columbia University 29.2
43 University of Michigan 27.8
51 George Washington University 25.9
60 Georgetown University 24.2
62 New York University 23.9
113 University of Virginia 17.4
Source: Thomas M. Cooley Law School Judging the Law Schools Study 2007
Next: Class and the classroom
