Affirmative Action Backfires Have racial preferences reduced the # of black lawyers?

Great Debates
1

The link above is to a WSJ article on the subject.

The gist of the article is that racial preferences in law school admissions have led to a lower number of practicing black attorneys. Why? Because with affirmative action you have students going to schools which are beyond their abilities. They learn less than they would have if they had gone to an appropriate school, they are less likely to pass the bar exam.

Full disclosure here: I’m a libertarian and have been for a few years. Sometimes pure libertarian, sometimes libertarian Republican. So I’m biased, even before I read an article like this, to agree with its conclusions. The basic point being that when the government intervenes, there are often, maybe always, unintended consequences, and they usually make the situation worse.

If I’m missing something in this article I’d be open to hearing what it is.

2

Richard Sander isn’t claiming that affirmative action has reduced the number of black lawyers in this country. I mean seriously - do you honestly think there were more black lawyers in 1960 then there are in 2007?

What Sander is saying is that in his opinion if we did not have affirmative action there would be more black lawyers now then there actually are. As a hypothetical opinion it’s impossible to disprove. But I certainly don’t think it’s as likely a possiblity as Sander claims.

3

It all began in the late 1800s when the govt banned slavery, then the feds made the states allow Negros to sit anywhere they wanted to on the bus. Been downhill since then.

4

A good libertarian would tell you that if the government hadn’t gone rushing in, economic pressures would have ended Jim Crow laws in another century or two anyway. You’ve just got to be patient and let these things work themselves out.

5

The article is right that this a serious question that deserves study. I have a few problems with the argument as presented by the article.

One of the central assumptions is that elite schools focus less on the basics, preferring abstract legal theory to black letter law. While there might be some truth to this, I think it is over-exaggerated. I attend a top school. I have had a few visiting professors from lower-ranked schools in the city who teach the same syllabus they teach at their school. There just isn’t a dramatic difference. We learn the same basic rules of contracts as everyone else. If this assumption is false, the main causal explanation in Sanders argument is absent.

Another central causal mechanism is the demoralization caused by lower grades. I guess I’d like to see the Sanders’s info on this one. At my school, even bottom-of-the-curve grades will get you a good job at graduation. Avoiding the demoralization of getting poor grades that shut you out of meaningful post-graduation employmentis the whole point of going to an elite school. So I find it hard to believe that having fewer blacks at elite schools will somehow mean less demoralization.

Sanders and the article make a point of discussing grade disparities. Sanders should know better. Getting poor grades does not mean learning less. Law school GPA is curved, so it only speaks to what one has learned relative to one’s classmates (to the extent that it reflects learning at all). Let’s suppose that instead of being in the middle of my class on natural talent, I am at the bottom of my class because I was placed above my skill level. Does that mean I have learned less? No, it just means my classmates performed better on the exam than they otherwise would have.

The real comparison would be to test whether those blacks who attend elite schools perform better on the bar than those who attend lower-ranked schools, wouldn’t it? I would be very surprised if the latter performed better. We don’t have that information, obviously (and I think California is silly for not providing it). Without it, the argument rests on a lot of conjecture, and what looks to me to be fairly weakly supported conjecture.

6

Wow – does that count as a new variant of Godwin’s law?

7

No, it’s just good old fashioned sarcasm.
Damned uppity Godwins…

8

Of course! If my synopsis in the OP led you to think otherwise, my bad.

9

Well said, and given your location and the description of your school, there is a big ugly pegasus on the outside. If so, howdy, I’m an alumn.

10

Well, the thread title was “Have racial preferences reduced the # of black lawyers?” and you did say “The gist of the article is that racial preferences in law school admissions have led to a lower number of practicing black attorneys.” So I did think you were talking about an actual reduction of the number of black lawyers.

11

Thanks for the thoughtful response to the OP.

I think the question is answered in the article:

"paradoxically, black students as a whole have dramatically lower bar passage rates than white students with similar credentials. Something is wrong.

The Sander study argued that the most plausible explanation is that, as a result of affirmative action, black and white students with similar credentials are not attending the same schools. The white students are more likely to be attending a school that takes things a little more slowly and spends more time on matters that are covered on the bar exam. They are learning, while their minority peers are struggling at more elite schools."

It is conjecture, no doubt about it. Let’s agree on that. But the question is: How else to explain the discrepancy? I guess that’s what science boils down to. Is your conjecture better than mine, and can we design an experiment to test yours vs. mine?

Also, a bit of personal experience - or anecdotal evidence - is relevant here. I was never a beneficiary of affirmative action. But I was usually a A-/B+ student and pretty shy as a kid. Which means that sometimes I was in a class with A/A+ students and sometimes I was the smartest kid. Almost without exception, when I was the smart one, I learned much more than when I was the dumb one. In the latter case I spent more energy getting nervous than learning. Fortunately the older I got the more the problem solved itself and by the time I hit 40 I was able to argue pretty well with the geniuses in my field.

12

You’re right. That was bad writing on my part.

13

You might also need to look at the undergraduate numbers. IIRC, one problem with affirmative action at elite schools was that minority freshmen would get accepted to schools that were a level above what they were prepared for, and would then drop out at higher rates. So a lot of kids who would have done fine and gotten degrees at second-tier schools–didn’t. Some of them would have gone on to law school, too.

Plan B, your experience is interesting to me. In college, I was usually the dumb kid in the room, since I had a woefully inadequate HS education and then went to a prestigious college. Although I missed out on some things through sheer ignorance, I also learned to enjoy college more than many of my smarter friends. They felt the need to perform and get A’s every time, and had a lot of anxiety. I felt lucky to get B’s, and so I was free to do my best and then let go. I would have preferred to have been more clueful, really, but it wasn’t all bad.

14

I don’t want to sidetrack the OP, but I’d like to share my own experience. I went to an engineering school known for a rigorous curriculum and was involved in a program devoted to increase matriculation rates of minority students. One way the program staff did this was by scaring the shit out of us. If we didn’t study eleventy-billion hours a day, arrive five minutes early to every class and sit in the front of the lecture room, and befriends all of our professors then we weren’t going to get an A. And if we didn’t get As, then we wouldn’t make Dean’s List. And if we didn’t make Dean’s List, then we wouldn’t be able to get a good job. And without that, then you were wasting your time, might as well drop out right now. I had six weeks of this brainwashing in a summer orientation program and then it continued throughout freshmen year. Every year, the program would give awards to the students who had made Dean’s List.

Sometimes I worry if this “Scared Straight” approach actually did more harm than good. Yeah, we got good advice that we wouldn’t have otherwise received, and then there was the social networking aspects, but by constantly reminding us about the consequences of failure, it made college seem all the more daunting. I know on more than one occassion, I felt ashamed about a low grade not only because it meant I was that much closer to working at McDonald’s for life, but because I felt like I was letting the team down, making us look bad. You show up to class early not only because it’ll help you be prepared, but because showing up late makes blacks look bad. Asking stupid questions in class makes blacks look bad. Making a bad grade makes blacks look bad.

So I worked much harder than necessary at the expense of fun.

15

Some more commentary on the article, from Protein Wisdom, via Instapundit:

http://proteinwisdom.com/?p=9667

16

I think AA programs were a completely reasonable solution to a very real problem in the 60s and 70s–how to quickly move minorities into professional fields that they had been barred from. I’ve long thought that AA programs should be phased out, and I do agree that we should study whether AA programs are helping or not. To that end, I think data from schools and the bar should be available for study.

I think there’s significant economic pressure currently on the top law firms to have diverse staff, so even if eliminating AA meant there were less minorities at the top law schools, my guess is the top law firms will go to second-tier schools in order to diversify. I’m unclear if the same type of pressure exists at smaller law firms, but if it doesn’t, perhaps a better solution is to make it easier to get a Small Business Administration loan to start businesses like law firms.

The article posted by the OP, however, has several flaws, I think. As pointed out, it is merely conjecture. Furthermore, the article seems to assume law school serves as preparation for the bar exam. Most people take a special class after law school in order to take the bar, and any analysis as to pass rates is going to have to include data on whether the people who failed took the special class. It could very well be that minorities are faililng the bar at higher rates because they aren’t taking this special class at the same rates as non-minorities–in which case the whole question would shift to the issue of why minorities don’t take the special class.

Furthermore, the article criticizes the top tier law schools for focusing too much on theoretical frameworks. As already pointed out, most schools have pretty much the same curriiculum. Furthere, there are 6 core subjects on the bar exam, and those are covered in the first year of law school. By the time a law sudent sits for the bar, 2 years will have passed since taking the core subjects. I really don’t see what difference a pratical approach would make to pass rates. After two years, the law will have changed, and a number of practical things will need to be relearned anyway for the bar.

Additionally, most law students I know simply didn’t take classes for all the subjects on the bar by the time they finished law school. I tried, and I still wasn’t able to take 2 classes because of scheduling conflicts. If you don’t take the class, then whether the curriculum is practical or theoretical is irrelevant.

As I stated earlier, the issue should definitely be studied. But, like most things in real life, my guess is that the data is not going to point to any clear cut solutions. What if the data says that AA helps Latinos or Native Americans? Then what are we supposed to do?

Plan B, I have to say that when I read stuff like that proteinwisdom link, I tune out of AA discussions. I think that much of his argument is unnecessarily nasty, shrill, and antagonistic.

17

Jim Crow was imposed by the government, not by private businesses. When Southern states imposed the first Jim Crow laws in the 1890’s, requiring railroads to segregate passengers by race, the railroads took them to court and lost.

18

I hope a good libertarian would tell you that Jim Crow laws are no more necessary or helpful than AA laws.

For any field with a defined standard at the end–particularly a standardized exam–AA is not a successful strategy unless the recipients of AA have a pass rate close to normal. The best AA can do is create opportunity. Where the candidates are unsuccessful in meeting the standard despite having been given the opportunity, AA simply adds to the stigma already inferred from the need for race-based AA in the first place: This is a group who cannot otherwise compete successfully.

Blind determination to categorize groups on the basis of race–even with worthy intent–is going to continue to backfire, in my opinion, as traditional excuses for poor performance fall one by one. If there are inherent differences among races, race-based AA is one of the best ways of proving it to the world. And who gives a rat’s a$$, anyway, anymore?

The day is not far off when the next Bakke will go after the NBA and the farce of AA will come full circle.

19

It’s my understanding that AA is not simply equivalent to quotas (for admission to school, or any other quota system).

AA can also encompass programs like targeted recruitment (which wouldn’t necessarily use a quota), or things like additional education for targeted groups.

Edited to add an example: Say a school made an extra effort to go into certain neighborhoods for recruitment, or they advertised more to attract minority students, but they still kept their entrance requirements the same - that is still usually considered to be affirmative action.

20

A lot depends on what we mean by Affirmative Action.

I went to an Ivy League school. Was I qualified? Did I have the grades and the SAT scores? Sure- but I don’t kid myself. There were undoubtedly hundreds of other applicants who had similar grades and similar test scores, and if I’d elected to go someplace else, my slot wouldn’t have gone unfilled. They’d have replaced me in a heartbeat with someone else who was just as good as me.

In the same way, I’ve been perfectly qualified for every job I’ve ever held. But if I’d turned down those jobs, I’d have been replaced by another applicant who was about as qualified as I was.

That’s USUALLY the case with elite jobs and elite schools. And that’s why I had no problem with the Bakke decision, which is where the SUpreme Court said race and gender could be PART of the decision making process.

I’m making up numbers, but let’s say there are 800 openings in the freshman class at Harvard. They may get 5000 applicants. Maybe 1000 of those applicants are clearly unqualified. Maybe 400 of the applicants are so outstanding, so far above the others, they get right in.

That leaves 3600 perfectly good applicants for only 400 openings. At this point, everybody who gets rejected has a right to gripe and moan, because none of them DESERVE to be rejected. It just so happens that some kids are going to get lucky and some are going to get screwed.

Since it’s a crapshoot anyway, I don’t see the harm in saying “We want a diverse student body, so we’ll take a black A+ student over a white A+ student, or a Latina valedictorian over a white valedictorian.” When that happens, I don’t see where anyone is being done a disservice, nor do I think the elite black or Latina student is likely to struggle more than white classmates.

The problem comes when affirmative action changes the standards. Using race or gender as a tiebreaker is a much different thing from lowering the standards.

Fine, pick a black kid with a 4.0 GPA a white kid with a 4.0, but if you pick a black kid with a 3.0 over a white kid with a 4.0, you’re screwing over the white kid AND putting the black kid in a situation he probably won’t be able to handle.