Does Affirmative Action Reduce the Number of Black Lawyers?

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.