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Race-based affirmative action admissions

An upcoming law review article rekindles a controversial issue

Vikram David Amar,
FindLawexternal link Columnist
Special to CNN.com


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(FindLaw) -- A forthcoming law review article by UCLA professor Rick Sander is causing a big stir in the legal academic community. Sander's piece in the Stanford Law Review argues that race-based affirmative action as practiced by American law schools during the past 30 years actually ends up hurting the group -- African American law students -- it is most intended to help.

In this column, I shall sketch out some of the basic points Sander tries to make. In Part Two, I will describe some of the critiques and criticisms of Sander's piece that other academics are making, and share some of my own reactions as well.

A liberal's attack takes a different tack

Before unpacking Sander's project -- which he styles as a "Systematic Analysis of Affirmative Action in American Law Schools" -- I want to briefly mention a couple of the reasons why his article in particular is generating a lot of buzz. First, Sander is someone whose credentials, past work, and personal life would seem to place him firmly in the so-called progressive camp when it comes to racial issues.

As a graduate student (he is a social scientist as well as a lawyer), he devoted much of his time to helping eradicate housing segregation. More recently, he co-founded a civil rights group that has been instrumental in enforcing fair housing rights in California. His son is biracial -- part white and part black -- so that, in Sander's words, "the question of how nonwhites are treated and how they fare in higher education gives rise [in him] to all the doubts and worries of a parent."

Because he is critiquing a liberal policy from the perspective of someone personally committed to liberal causes, Sander has a certain credibility that right-wing critics might lack.

Second, the "costs" of affirmative action to blacks that Sander emphasizes are not the "costs" to blacks that others have raised repeatedly against race-based affirmative action. Most opponents of affirmative action who argue that it hurts blacks focus on the dignitary or stigmatic harms to the intended beneficiaries; these opponents assert that because some blacks are admitted to institutions by virtue of affirmative action, the outside world may assume that most or all blacks are not capable of making it "on their merits."

By contrast, Sander focuses on the material or tangible harm to black law students. If, as Sander argues, affirmative action actually hurts blacks in terms of their career paths and not just in terms of their psyches, then much of the support for affirmative action programs today would need to be reconsidered, if not abandoned.

The weight placed on weight in admissions

Professor Sander lays the foundation for his critique by describing the kind of race-based affirmative action that law schools use today.

Under the Bakke and Grutter Supreme Court precedents, public (as well as private) law schools are prohibited from making use of quotas, two-track admissions schemes, or fixed points added to the numerical indices of minorities.

Indeed, such a "numerically fixed point method" was precisely the kind of program used by the University of Michigan undergraduate school struck down in 2003 by the Supreme Court in Gratz, the same day as it upheld the Michigan law school's approach in Grutter. The Michigan law school's plan was constitutionally preferable and permissible, said the Grutter Court, because it used race in a more individual-specific, nuanced and flexible way; race was just one factor among many diversity factors that might have enhanced an applicant's chances.

Professor Sander argues that, in fact, the Michigan law school program, despite its seeming flexibility and inscrutability, employs race in just as ambitious (critics would say aggressive) a way as did the Michigan undergraduate plan.

Using sophisticated statistical techniques, Sander concludes that the "law school operated an admissions system that gave greater weight to race. . . than the college's. ... [I]t is difficult to see how Justice O'Connor could have thought the Law School system passed constitutional muster, or that blacks and whites were in any sense on the same 'playing field' in admissions. ... Race is obviously given far more weight than all of the other 'diversity' factors together. ... It may be that Justice O'Connor did not understand that the Law School and College admissions policies were functionally identical in their treatment of race. . . [o]r it may be that Justice O'Connor cared only about form, not substance."

Moreover, and more important, Sander argues, the way race is used at the Michigan law school is the same way race is used in many if not most law school affirmative action programs. Indeed, Sander says that he has "been unable to find a single law school in the United States whose admissions operate the way Justice O'Connor describes in Grutter" -- that is, where race is used as a flexible plus factor that does not effectively dominate over all other diversity criteria.

The system of aggressive racial preferences is not, Sander says, confined to the "elite" law schools. Rather, "it is a characteristic of legal education as a whole."

According to Sander, law school affirmative action across law schools is characterized by a "cascade" effect. As the elite schools "snap up" the blacks who otherwise would have been admitted to and have attended the next tier of schools, that next tier of schools snaps up the blacks who would have otherwise attended the tier below. And so forth.

The mismatch effect

This systematic cascade phenomenon is important, because when race is being used so weightily in schools all the way down the ladder, the result is that the African Americans who are admitted to each school under an affirmative action program are significantly less numerically qualified than are their white competitor students at that school, who were admitted outside the affirmative action plan.

Sander calls this phenomenon the "mismatch" effect -- black beneficiaries of affirmative action are "mismatched" at schools whose non-affirmative action students possess better credentials and skills.

Because of the pronounced mismatch effect that extends down the law school hierarchy, blacks tend to suffer poor grades in law school. According to the data Sanders adduces, the median black law student's GPA at the end of the first year of law school places him at the 7th or 8th percentile of his class. Put another way, more than 50% of black law students are in the bottom one-tenth of their law school class (in terms of grades) at the end of the first year.

The long-term costs of the mismatch effect

This poor academic performance in law school, in turn, creates two distinct costs for African Americans. First, Sanders argues, the poor grades lead to a very poor bar passage rate. As he points out, "only 45% of black law students in the 1991 cohort completed law school and passed the bar on their first attempt." That number is far worse than the comparable number for whites.

Sanders goes on to argue that many of these blacks with poor grades would have had better grades - and have ended up with a higher chance of passing the bar - if they had been at law schools more commensurate with their academic skills. Sander's data suggests to him that black students at any law school who have the same law school grades as white students at that school pass the bar in the same percentages. In other words, blacks with good law school grades don't fail the bar any more than whites with the same grades.

The problem, Sanders suggests, is that law schools have "mismatched" blacks in schools where they are unlikely to get good grades. By placing black students in environments where their grades will be higher -- less competitive law schools -- the system could improve their overall bar pass rate.

(Sander doesn't delve into why a particular black student with poor grades at a more competitive school would pass the bar more easily had he himself attended a less competitive school -- where his grades might have been better. But the explanation might turn on how receiving poor grades is demoralizing for even able and smart students, and/or how students who get high grades also get the lion's share of professorial advice and mentoring, and/or how less competitive schools might focus more on the basic skills needed to pass the bar than do more highly-rated schools.)

From all this, Sander argues that if race-based law school affirmative action were eliminated or reduced, the black bar passage rate would actually go up. According to his calculations, in the absence of preferential admissions, this rate would rise to 74 percent from the 45 percent he observed.

But what about all the blacks who would not be in any law school at all but for affirmative action? Sander argues that there are not as many of those as you might think. If affirmative action were eliminated, most black law students wouldn't be ousted from law school entirely -- they would simply attend law schools that "match" their numerical credentials more tightly. In other words, elimination of affirmative action would simply eliminate the mismatch effect -- blacks would simply be attending less competitive and less prestigious schools than they are currently attending.

And of those blacks who would be displaced from the bottom of the legal academic system altogether (i.e., those who need affirmative action simply to get into the least competitive schools), many of them today do not end up passing the bar and entering the legal profession in any event.

Indeed, Sander argues, counterintuitively enough, that because so few black law students who are currently passing the bar would be eliminated from the legal academy altogether were affirmative action ended, and because many blacks at more highly-ranked schools who currently fail the bar would pass the bar if they attended the lower-ranked schools they would have attended absent affirmative action, the elimination of affirmative action might actually increase the absolute number of blacks who pass the bar and enter the ranks of the profession.

Second, and related, Sander says that blacks at better schools, but with poor grades, get worse jobs than they would if they were at lesser schools and had better grades. In other words, Sander argues, at all but the most elite schools, grades matter more than the school from which one graduates for black law job applicants.

The upside of attending a better school is more than outweighed - in terms of employment options - by the downside of getting weak grades at that school, compared to the better grades that could have been obtained at a less competitive school.

This nonobvious conclusion might make some sense. Legal employers do like to hire from the top, or at least the top half, of almost any law school class. A high-performing student at a second-tier school may look more attractive than a student with a mediocre record from a top school. And virtually no one is eager to hire C and D students, from even the very best school.

So whether one focuses on passing the bar, or getting a good job, Sander says, there is a case that race-based affirmative action hurts, rather than helps, black law students.

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Vikram David Amar, a FindLawexternal link columnist, is a professor of law at the University of California, Hastings College of the Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. Before teaching, professor Amar practiced at the firm of Gibson, Dunn & Crutcher.


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