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Thursday, March 24, 2005

Does Affirmative Action Reduce the Number of Black Lawyers?

Ian Ayres

In a recently published article in Stanford Law Review, UCLA law professor Richard Sander argues that affirmative action reduces the number of practicing black lawyers. Even though Sander estimates that affirmative action increases the number of African-American students entering law schools, he argues that affirmative action causes these students to have poorer entering credentials than their peers, to have dramatically lower grades, to fail out of law school and to fail the bar at disproportionate rates. Sander argues that without affirmative action, African-American students would not be overmatched by their peer students and would therefore earn higher grades and become lawyers at substantially higher rates.
In a forthcoming response in the Stanford Law Review, Richard Brooks and I evaluate Sander’s claims. We replicate his results concerning racial disparities in grades and in the probability of becoming a lawyer. But we challenge his claim that these disparities are caused by affirmative action. We find evidence that affirmative action increases the likelihood that blacks will become lawyers. When we look at African Americans with the same entering credentials, we find that those that go to a higher quality law school have a higher probability of becoming a lawyer. This means that we find a “reverse mismatch” effect – in that students can be pulled along by higher quality peers to achieve more. The possibility of a reverse mismatch effect should not be so surprising. Long before I studied this issue, I had long advised my nephews and cousins to shoot for the stars in trying to attend the best possible college – saying to them, “If you haven’t been rejected by more than half of your colleges, you haven’t shot high enough.”

But Brooks and I find in the 1991 data even with the help of affirmative action that a large proportion of black students are at risk of not graduating from law school. On the first day of law school, we estimate that 42.6% of blacks entering law school had less than a 50% chance of becoming lawyers. (while virtually no whites students -- .23% -- were in this high risk category). These at-risk students predominantly attend low ranking law. While Sander’s lobbies for a world where without affirmative action where the top ranking law schools would become largely all-white, we consider a world where some of the African-American students attending lower ranking law schools would choose not to attend if they knew the real risks involved.

Comments:

[[This means that we find a “reverse mismatch” effect – in that students can be pulled along by higher quality peers to achieve more.]]

Then they aren't higher quality. They are higher quantitative.
 

I transfered law schools precisely for the "reverse mismatch" effect. Had I stayed at my lower ranked school I could have been in the top 2-5% of the class. But transferring to an ivy puts me in the situation where the conversation moves more quickly and at a higher level. Adjusting to and achieving in this environment will, in my opinion, make me a better lawyer.
 

Did you compare the "reverse mismatch" against other demographic groups and law students as a whole? When I see "reverse mismatch," I think "grade inflation." Harvard rarely gives grades below C, Yale doesn't give grades at all, and neither fails nearly as many students as any reasonable curve would suggest.

Maybe the schools just shuttle the vast majority of their students through, whether they perform adequately or not; that's certainly the opinion of most students.
 

"Maybe the schools just shuttle the vast majority of their students through, whether they perform adequately or not; that's certainly the opinion of most students."

I sincerely hope this is not the case... I would hope that students realize that one advantage of failing early is that, in the end, you save time and money.

Borrowing 150,000 for a top law school, being 'shuttled through' and then not passing the bar exam ends up harming students far more than shifting gears after the first semester.
 

ayers' and brook's results sound similar to the conclusions reached in 'Shape of the River' - it certainly seems intuitively plausible to me, i know i lifted my effort a lot after shifting to Yale Law School from a relaxed graduate program. i think that was mostly because of my peers (although i'm not prepared to call them 'higher-quality' peers).

also, i don't want to sound like too much of a snob here but harvard and yale law schools shouldn't be setting up grade curves that lead to many failing grades. while grade inflation is rampant in the ivies' undergrad colleges (and at yale law school where about 50% of class grades are 'honors') the reality is that poor work at these schools may still be decent. a professor shouldn't give a failing grade unless a student has truly failed to learn the material. a failing grade should mean more than falling in the bottom 5th (or 2nd or whatever) percentile. on the other hand, Cs could be given out for falling in a low percentile.

oh, and yale law school does give grades (H, P, LP, F). As one professor explained, 'the grading system is designed to give employers the impression that 80% of the students graduated in the top 10% of the class.'
 

[...we consider a world where some of the African-American students attending lower ranking law schools would choose not to attend if they knew the real risks involved.]

i'm not sure that this is all that different from what sander is suggesting. by eliminating, or rather restricting race preference to just 4% for top law schools, sander shows that the absolute bottom of black applicants are never accepted by a law school.

that said, i'm very interested to read an alternative explanation for the black-white achievement gap.
 

Yes apparently there is some disagreement about whether affirmitive action really helps black students (in a very direct fashion ignoring any larger effect it might have on race relations). However, the real question is why did it take so long to do these studies. Why haven't there been large scale compelling studies demonstrating the effectiveness of affirmitive action?

Basically my position on the entire matter is that I'm willing to support affirmitive action if I am convinced that it is an effective means to hurry racial integration and equality. What horrifies me is that we have engaged in decades of expensive social policy without having first convincingly settled the efficacy of the program.

Moreover, what should be proved is not only that affirmitive action is more help than hurt but that it is a good use of resources. Clearly in real terms affirmitive action uses about amounts of political capital, public support of projects for minorities and other harder to quantify resources and we should be convinced that simply concentrating on pre-college education or pre-law education wouldn't be a much more efficent use of resources.
 

I'm curious what is meant by "success". I recall hearing an interview with Sander where he included african american law students who fail the bar as part of his "failed" group, which made me wonder whether these were people who failed once, but ultimately became lawyers, or people who never became lawyers. I know many people in California who failed the bar on their first try, but who today, 10 years later, are quite successful attorneys.
 

James said he's "interested to read an alternative explanation for the black-white achievement gap." But Sander's study doesn't offer an explanation for the black-white achievement gap; it merely asserts, without any reason to do so, that the gap is due to affirmative action.

Sander's study is designed such that black students are the "treatment" group and white students are the "control" group. By comparing white and black achievement, Sander aims to measure the effect of the affirmative action "treatment." But this *assumes* that the only difference between black and white students is affirmative action. It does not explain the achievement gap, which has been detected in places, such as public elementary schools, where affirmative action isn't at issue.

For a rigorous critique of Sander's study design, see Daniel Ho's forthcoming comment in the Yale Law Journal, entitled "Does Affirmative Action Cause Black Students to Fail the Bar?", as well as Sander's response and Ho's rebuttal.
 

James said he's "interested to read an alternative explanation for the black-white achievement gap." But Sander's study doesn't offer an explanation for the black-white achievement gap; it merely asserts, without any reason to do so, that the gap is due to affirmative action.

Sander's study is designed such that black students are the "treatment" group and white students are the "control" group. By comparing white and black achievement, Sander aims to measure the effect of the affirmative action "treatment." But this *assumes* that the only difference between black and white students is affirmative action. It does not explain the achievement gap, which has been detected in places, such as public elementary schools, where affirmative action isn't at issue.

For a rigorous critique of Sander's study design, see Daniel Ho's forthcoming comment in the Yale Law Journal, entitled "Does Affirmative Action Cause Black Students to Fail the Bar?", as well as Sander's response and Ho's rebuttal.
 

"Basically my position on the entire matter is that I'm willing to support affirmitive action if I am convinced that it is an effective means to hurry racial integration and equality."

but is the goal of affirmative action just the achievement of racial integration and equality? if so, all affirmative action programs are destined to fail -- our country, nor any country in the world, can achieve such a goal. furthermore, i would challenge the assumption that the purpose of affirmative action is merely to bring blacks and whites together -- the purpose of affirmative action is to give a historically disadvantaged minority, African-Americans, the same opportunity to succeed enjoyed by those not burdened by wide-spread and systemic racial discimination, harassment and segregation.

bar passage rates, which sander's relies heavily on, are not an accurate measure of success of law school affirmative action programs. not everyone who enters law school decides to immediately (or ever) practice law. a more accurate measure of the worthiness of law school affirmative action programs requires a more thoughtful and rigorous analysis of where blacks students who attend lower-tied law schools end up vis-a-vis their black peers who do not attend law school.
 

I've known law school students that never became lawyers. And, I've sat on juries where both opposing counsel and the judge did such a bad job that passing the bar cannot be said to have effectively screened incompetence.
 

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