Affirmative Action hurts Black Students?

December 22, 2004 9:07 AM

Affirmative Action hurts Black Students? Richard Sander, a professor of law at UCLA, examined empirical data on black law students' graduation rates and BAR results, and found that affirmative action reduces the number of total black lawyers. He claims that there is a mismatch-effect between the school a student matriculates in and one that he is qualified to attend. Dissenting opinion. Sander's remarks at Volokh. Hat Tip: Kevin Drum.
posted by nads (35 comments total)

The mismatch effect basically results in students struggling at school, with Sander's claiming as a result the median Black student is in the bottom decile of his class. This results in lower graduation rates and a lower chance of passing the BAR. Sander's suggests if affirmative action is removed, fewer black students may attend the top law schools, but they would still be more than qualified to attend second tier schools. Those who attended second tier schools before on AA, would most likely attend third tier schools. Since students would be a better fit for the curriculum, graduation and BAR passing rates would equalize.

The dissenting opinion provided isn't so good, and doesn't really deal with the empirical data Sander's provides. I think the most promising arguments Liu makes are that there are other benefits to attending an elite school (networking) and that eliminating aa might actually reduce the black applicant pool to law schools.

Is this the type of argument that could kill affirmative action? That it actually hurts those its meant to help? Sander's results are only a starting point, it would be interesting to see results from medical school or business schools.
posted by nads at 9:16 AM on December 22, 2004

Is this the type of argument that could kill affirmative action?

If this were the argument that was able to kill affirmative action, it would have done so a long time ago, since it's one of the oldest, and most sensible objections the practice.
posted by Faze at 9:38 AM on December 22, 2004

You're missing the point. Affirmative action is not to help the minorities selected for admission at elite universities. It's to assuage the guilt of the administration and faculty for not having more minorities there in the first place.
posted by monju_bosatsu at 9:45 AM on December 22, 2004

This would be more interesting if the study (or the report on it mentioned) used control groups.

Assuming there are no flaws in the study:

Do white students with similar academic credentials show the same phenomena?

Do white students admitted under Legacy Admission programs show this?
posted by Critical_Beatdown at 9:51 AM on December 22, 2004

Elite schools (all schools, actually) enjoy letting in children of graduates and large donors even if they don't quite qualify to be admitted to the school on their own merits alone. Graduates and large donors at elite universities are very, very white. Students admitted because of alumni connections or large donors far outnumber students admitted from affirmative action. No one seems to care much about the students who are admitted because of who their parents are.

I would say that affirmative action is about the only way to level the playing field in the long run. There are built-in prefences for white students as the system is now. Once there are large numbers of black alumni who can get their kids in, too, then the system will not be so white-preferential. And then affirmative action will not be necessary.

On preview: Thanks for the link, critical_beatdown.
posted by flarbuse at 10:03 AM on December 22, 2004

Sander's made a remark on volokh saying that in his model, the underperformancce could be predicted from GPA and LSAT scores. I.e. it wasn't necessarily due to race.

It's important to note that this performance gap has nothing to do with race per se; whites who attend law schools where their credentials are far below most of their peers have pretty much the same types of troubles. The performance gap is a function of preferences. (Now, it's true that the preferences come about in the first place because of the black/white credentials gap - but that is another story, which I'm happy to address later if readers are interested.) There is no credible evidence I've seen that, if schools used race-blind admissions, blacks would underperform whites at all. (I will discuss this issue further, and respond to some reader commentary, this Friday.)

So it seems like legacies who were also underqualified would have a problem too. Perhaps why Bush got straight C's at yale.
posted by nads at 10:29 AM on December 22, 2004

I would say that affirmative action is about the only way to level the playing field in the long run. There are built-in prefences for white students as the system is now. Once there are large numbers of black alumni who can get their kids in, too, then the system will not be so white-preferential. And then affirmative action will not be necessary.

Are you saying that legacy admissions are a built-in prefence for white students? I think you forgot to insert the phrase "a few".
posted by trharlan at 10:38 AM on December 22, 2004

Bush couldn't get into Texas Law (there is no legacy admission process there for example). That's why he went to Harvard for Business School instead. This is counter to Texas A&M University, which until recently gave thousands of applicants "legacy points" every year (not really "a few," trharlan).

A very interesting link, but why do you keep capitalizing BAR?
posted by grouse at 10:43 AM on December 22, 2004

A very interesting link, but why do you keep capitalizing BAR?

Good point. It's not an acronym.
posted by oaf at 10:44 AM on December 22, 2004

Yes, I am saying that legacy admissions are a built-in preference for white students. And it is more than fair to point out -- as you did -- that it is for "a few" white students.

However, bear in mind that those "few" still outnumber affirmative action admissions. So it is equally fair to say that affirmative action helps out only a few black students.
posted by flarbuse at 10:45 AM on December 22, 2004

A few thoughts:

Legacy/donor admits are vastly exceeded by affirmative action admits in elite law schools. My theory is that the last think that most rich kids want to do (and kids of graduates of elite law schools usually are rich kids, even if their parents weren't) is to take on the 5-10 years of grinding labor invariably which law school and the early portion of legal practice. My elite law school was a profoundly middle class place; I can't (off hand) think of a single classmate of mine who had a Master of the Universe type parent.

Law school is a poor laboratory for the subjectivity of affirmative action concepts of merit. Grade and competitive journal admissions are exceptionally well correlated in any particular class with LSAT and undergraduate GPA. Far from being surprising, it is a virtual certainty that any cohort admitted with low LSATs and UGPAs is going to be towards the bottom of the class standings.

The underrepresentation of blacks and latinos in the top reaches of the legal profession reflects not the failure of affirmative action, but, in fact, the juxtaposition of its SUCCESS and the grim realities of being a lawyer. Blacks and latinos with the smarts and discipline to reach the top of the legal profession have, because of affirmative action, a wide array of FAR BETTER CHOICES. Some just love the law and stay lawyers, but many -- and probably the savvier many, I'd say -- take the more creative and better paid jobs they can get outside the profession thanks to affirmative action.
posted by MattD at 10:50 AM on December 22, 2004

monju: Affirmative action is not to help the minorities .... It's to assuage the guilt...

Sadly, only too right.

My problem with affirmative action as it is currently practiced is that it's a "trickle down" theory -- if we help the ones at the top then everything will magically get better. It's a cheap cop out for doing essentially nothing.

If we cared about everybody in society getting a decent shake we wouldn't worry about law school admission, we'd try to really try to do something about the state of inner city schools. Help the bottom and you'd really do some good. Of course to help them effectively we would also have to try to solve a host of other social ills that afflict the poorer ends of our society: health care, and so on. Much easier just to put the thumb on the scales for a few trophy individuals and keep doing business as usual.
posted by Quinbus Flestrin at 11:19 AM on December 22, 2004

It is safe to say that poverty is more prevalent and oppressive than racism, these days.

Why not replace race-based affirmative action with dollar-based affirmative action?
posted by AlexReynolds at 11:35 AM on December 22, 2004

AlexReynolds, there are two, sadly simple, reasons why that substitution hasn't occurred.

First, white liberals are scared of being called "racists." (White conservatives don't like either, but don't let it get in the way of taking policy positions they see as correct).

Second, no one has anything to gain from such a shift, except for poor whites, who are powerless, and poor asians, who are small in number and don't vote, anyway. Weighed against the power of upper middle class blacks and latinos, who would lose tremendously, it's no contest.
posted by MattD at 11:44 AM on December 22, 2004

MattD: the best answer to that question I have seen. Very sad.
posted by grouse at 12:04 PM on December 22, 2004

Why not replace race-based affirmative action with dollar-based affirmative action?

How would that have any impact on the effect that Sander claims to have observed? Are you saying that Black students are less able to compete in elite law school classes because of their race, and that white students with similar incoming credentials would do better?

It seems that Sander's thesis (which I find compelling, though I'm reserving final judgement until I read a response that looks critically at his data) is a sound argument against any form of preferences, racial or income-based. By bringing students into environments in which they are poorly equipped to compete, you're automatically putting them at a disadvantage.


This would be more interesting if the study (or the report on it mentioned) used control groups.

It does. Sander controls by incoming credentials: LSAT scores and undergraduate GPA. He finds that while these credentials are not necessarily predictive of individual performance in law school, they do correlate well with group performance, regardless of race. Since Black students are given preferential admissions, they have, as a group, below-median credentials, and they perform accordingly. I hope I'm not misrepresenting this: that's from my memory of a radio interview of Sander.

I think it might also be worthwhile to say that Sander is not criticizing affirmative action from a conservative viewpoint. He's a self-avowed liberal, and he seems to sincerely believe that the elimination of affirmative action would be good for Black law students and would increase the number of working Black lawyers. For whatever that's worth.
posted by mr_roboto at 12:17 PM on December 22, 2004

Of course, the real disgrace is the underperforming inner-city schools where even very bright kids have almost no opportunity to acquire the skills that would enable them to compete at top colleges and law schools. Affirmative Action is a band-aid to hide a much larger problem.
posted by LarryC at 1:20 PM on December 22, 2004

I was recently tangentially involved in the administration process to a professional school, and these days, they do look at socioeconomic disadvantage. The school I was at, had a specific form to rate disadvantage on a 1 to 4 scale. So it is more general. As Mr_Roboto is saying though, Sander's analysis appears to apply to all forms of preference. By the time you're at law school, you aren't going to have the tools to compete.

I agree that A.A. is definitely just a band-aid over the real problem. But, at the same time, if you are a university administrator, its not like you are personally in charge of inner city schools.


IANALS, so I had no idea what the bar stood for or is, other than the fact that its some semi-standardized licensing exam.
posted by nads at 1:32 PM on December 22, 2004

Wikipedia: Bar exam

It's called the bar exam because you have to take it to be admitted to the bar, defined by Merriam-Webster:

3 a (1) : the railing in a courtroom that encloses the place about the judge where prisoners are stationed or where the business of the court is transacted in civil cases
(2) : court, tribunal
(3) : a particular system of courts
(4) : an authority or tribunal that hands down judgment
b (1) : the barrier in the English Inns of Court that formerly separated the seats of the benchers or readers from the body of the hall occupied by the students
(2) : the whole body of barristers or lawyers qualified to practice in the courts of any jurisdiction
(3) : the profession of barrister or lawyer
posted by grouse at 3:23 PM on December 22, 2004

I agree that under-performance is, inherently problematic. However, who really cares what your GPA was at Harvard Law? If you pass the bar and you've got a degree from harvard, under-performance at harvard is fairly irrelevant.

That, I think is the benefit provided by AA, and legacy programs.

I think an interesting followup would be to then compare the wage levels following this group of students to see if GPA and LSAT scores had any ramifications concerning compensation, or if the primary factor was diploma prestige.
posted by Freen at 3:28 PM on December 22, 2004

I think LarryC really nails it. The real problem is the disparity of public education at the preschool-12th grade level across our country.
posted by chaz at 3:34 PM on December 22, 2004

However, who really cares what your GPA was at Harvard Law? If you pass the bar and you've got a degree from harvard, under-performance at harvard is fairly irrelevant.

This is true: everyone who graduates from Harvard Law gets a job (although Sander would point out that Black students have both higher drop-out rates and lower bar passage rates). Only a tiny percentage of those subject to affirmative action have the opportunity to go to Harvard, though.

The real problem comes in second-tier-quality students who are bumped into first-tier schools (other than the top 3 or 5). Or third-tier students bumped into second-tier schools, etc. It's a systemic problem that affects students throughout the system, not just those in the top handful of schools.
posted by mr_roboto at 4:14 PM on December 22, 2004

LarryC: Spot on. However, those who attack Affirmative Action, are rarely also those who support significant funding/reform for inner city schools.

mr_roboto: True, not passing the bar is problematic. However, would those students pass the bar if they went to a school that was "more their speed"? I also think that there is at least some benefit of simply attending a slightly better school, and performing poorly, yet passing, and receiving the benefits of a "better" education. This is certainly more true of the top 10 schools, than it is between second and third tier schools. I am just wondering how much it counts, particularly for law schools and post graduate education. I personally think that it is not an insignificant advantage.
posted by Freen at 4:21 PM on December 22, 2004

Whether you receive a "better" education at an elite law school is debatable. Professors at elite schools are hired due to their ability to create and publish innovative legal theories, not their ability to teach. Also, the subject matter of the courses in elite schools, especially "national" law schools that cannot tie their curriculum to the law of a particular state, is not especially relevant to passing the bar. It's possible that someone who would be a marginal student at Harvard would be better off at a regional or state school which focused its curriculum on the nitty gritty of legal practice and black letter law.
posted by amber_dale at 5:42 PM on December 22, 2004

Yes, amber_dale. I agree. I put quotes around the word better, for precisely the reasons you indicated above.

However, people who graduate from tier-one schools might tend to make more money. Is this a question of garbage in- garbage out? Or is it because the schools are better? (garbage in- better lawyers out) Or is this because of prestige? Or perhaps networking, becoming a member of a specific class of individuals?

I just think that maybe under-performance, while being a bad thing, may not necessarily negate the benefits of going to a "better" school.
posted by Freen at 6:18 PM on December 22, 2004

It depends on what your goals are. The top firms aren't going to recruit at State U Law. But if you have crap grades at Harvard, you won't get a job at a top firm, even after accounting for firm-practiced affirmative action. So you will end up at the same mid-tier, probably regional firm that you could have worked for if you'd been a good student at State U Law, except passing the bar is a huge hurdle because you've spent the last three years struggling with amorphous theory rather than the law you need to know as a practicing attorney. You're going to make the same salary in both cases.

If you want to be a professor, being marginal at a good school may be better; it will provide more networking advantages. If you want to be a stellar litigator, especially if you want to go back to your community and work, you're probably better off getting a solid education in the fundamentals.
posted by amber_dale at 6:44 PM on December 22, 2004

I also agree with LarryC. Affirmative action is like putting a bandaid on a gunshot wound. Anecdotally, I haven't found minority students to be any worse than white students, at least in classroom discussions. Some minorities are very smart, some are average, and some below, just like everyone else, not that classroom discussions can really give you much of a clue on how well one does on exams.
posted by gyc at 7:25 PM on December 22, 2004

amber_dale: yeah, you're probably right.
posted by Freen at 7:58 PM on December 22, 2004

It does. Sander controls by incoming credentials: LSAT scores and undergraduate GPA.

I don't see that in the link. It seems to be comparing black students as a whole to white students as a whole.

I don't see where a controlled comparison is made. In other words, if a black student with a GPA of X accomplishes Y, what does a white student with GPA X accomplish? At, below, or above Y, and by how much?
posted by Critical_Beatdown at 1:13 AM on December 23, 2004

Before Affirmative Action black folks couldn't get in to law school. It may need to change at some point, but not yet.
posted by nathanrudy at 5:12 AM on December 23, 2004

But if you have crap grades at Harvard, you won't get a job at a top firm, even after accounting for firm-practiced affirmative action. So you will end up at the same mid-tier, probably regional firm that you could have worked for if you'd been a good student at State U Law, except passing the bar is a huge hurdle because you've spent the last three years struggling with amorphous theory rather than the law you need to know as a practicing attorney. You're going to make the same salary in both cases.

This is overstated.

First, in most states, the bar ain't that hard. CA and NY aside, in most places you need only keep awake for a 6 week bar pass course in order to be ready to take the test. In IL, which includes one of the "top" markets, the pass rate is something like 70%. If you can't pass that test, it isn't because you don't know the law--it's because your basic reading and writing skills are so below par that no amount of studying the law is going to help, imho.

Second, it is my sense that even people with pretty poor grades at elite law schools get elite jobs if they have minority status. It obviously depends on how bad the grades are, but I personally know people who I am pretty sure were C students at an elite school who had no problem getting jobs at fairly elite firms. Below a C and I'm sure things get a lot more bleak, but remember that falling below a C at an elite school is pretty hard to do.
posted by Mid at 6:27 AM on December 23, 2004

Freen, I think you'll find that those who oppose affirmative action are virtually 100% in favor of the only reform which can resuscitate inner-city education: complete, radical school choice.

While affirmative action strikes me as theoretically objectionable, it has certainly produced some benefits for society, which may outweigh the costs. There are no white Columbia Law School grads who are starving on street corners because their Harvard Law School seat was given to an African American, after all.

However, I'm quite certain that anyone who opposes school choice while supporting affirmative action is quite unserious, or completely hypocritical, in their thinking.
posted by MattD at 7:28 AM on December 23, 2004

Mid, you are right that it's hard to get below a C at an elite law school, and if by elite job you mean working at *a* firm for 80-100K/year, then yes, anyone can get one. But that's not considered an elite job at an elite school.

Re: the bar: it's my understanding that regional schools spend a significant amount of time doing either practical work (legal writing, clinicals) or ramming home the substantive law of the jurisdiction in which their graduates will practice. If you're a marginal student, having 3 years of bar prep is better than 6 weeks. But if you're an AA admit whose numbers should have put you at Michigan instead of Yale, you are probably smart enough to pick it up in 6 weeks regardless.

nathanrudy, are you actually saying that black folks would still not be able to get into law school without AA? When does it stop? At the end of O'Connor's 20 years?
posted by amber_dale at 8:01 AM on December 23, 2004

Well, sure, there's elite (say, Skadden), and then there's elite (say, Wachtell). But, come on, once you're at a starting salary of more than 125k (for people as young as 25), you're talking pretty fine distinctions.

The people I was talking about (the C students) could get a Skadden-level elite job, I think.
posted by Mid at 8:17 AM on December 23, 2004

I disagree, if only because I have URM friends with GPAs below a B who can't get a job at a Skadden-level firm, or at least not in a major market city. All the usual qualifications about anecdotal evidence apply, I suppose.

P.S. Skadden actually pays a higher starting salary than more "elite" firms, but that's because they're a sweatshop of the highest order.
posted by amber_dale at 12:25 PM on December 23, 2004