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Thursday, January 17, 2013

Heriot: The Sad Irony of Affirmative Action

National Affairs LogoNational Affairs:  The Sad Irony of Affirmative Action, by Gail Heriot (San Diego):

The biggest change since Grutter, though, has nothing to do with Court membership. It is the mounting empirical evidence that race preferences are doing more harm than good — even for their supposed beneficiaries. If this evidence is correct, we now have fewer African-American physicians, scientists, and engineers than we would have had using race-neutral admissions policies. We have fewer college professors and lawyers, too. Put more bluntly, affirmative action has backfired. ...


The problem of relative performance and credential mismatch does not end with college graduation. It extends to professional schools as well, and is particularly evident at America's law schools. Shortly after Cole and Barber's book was published, Mismatch co-author Richard Sander published a study of law schools titled A Systemic Analysis of Affirmative Action in American Law Schools. His findings were similar. Outside of historically black colleges and universities, up and down the law-school hierarchy, the average African-American student had an academic index — a combination of GPA and LSAT score — more than two standard deviations below that of his average white classmate. Indeed, at some law schools, there was no overlap between the entering credentials of African-American students and those of white students (Sander did not study Hispanic students). These gaps in entering credentials affect student performance: Sander's research demonstrated that more than half of African-American law students had first-year GPAs in the bottom 10% of their classes. Even critics of Sander's ultimate conclusions agreed that these findings were both true and troubling.

Only slightly more controversial was Sander's finding that this effect was almost entirely the result of affirmative action. When African-American and white law students with similar entering credentials competed against one another, they performed very close to the same. Race-based admissions were thus creating the illusion that African-Americans are somehow destined to be poor law students. The truth is that, if they were attending schools where their credentials matched the average student's, they would be just as likely to do well.

Strangely, however, African-American and white students with identical entering credentials were not performing similarly on the bar exam. Sander showed that the likely reason is that they are not attending the same schools. The African-American students were more likely to be at law schools that are more theoretical in their approach and where "teaching to the bar exam" is considered déclassé. Rather than benefiting from the more competitive learning environment these schools offer, African-American students were falling behind their white academic counterparts who were attending somewhat less competitive schools. Sander's critics, on the other hand, had no explanation for why white students perform better on the bar exam than African-American students with identical credentials.

Under Sander's calculations, if law schools were to use race-neutral admissions policies, fewer African-American students would be admitted to law schools. But since those who were admitted would be attending schools where they were very likely to do well, fewer would fail or drop out. In the end, more would pass the bar exam on their first try (1,896 versus 1,567 successful African-American first-time test takers among the graduating class of 2004) and more would eventually pass the bar (2,150 versus 1,981 among that same class) than under current admissions practices.

Sander's research was criticized by proponents of race-preferential admissions on the ground that it was just one study, and Sander agreed that more research would be desirable. He used the best and most recent data available at the time, and his calculations have been verified by others, but surely confirming the results with a different and more recent database would have been useful. In a report issued in 2007, the U.S. Commission on Civil Rights urged grant-making agencies to fund research into this issue and requested that state bar associations cooperate with this research.

Unfortunately, something closer to the opposite has happened. In order to confirm his initial findings, Sander assembled an ideologically diverse team of investigators and sought data from the State Bar of California. Urged not to cooperate by some of the very same people who had previously complained that Sander needed more evidence, the state bar denied the team access. It didn't matter that Gerald Reynolds, chairman of the U.S. Commission on Civil Rights, flew to San Francisco to ask personally for the state bar's cooperation. It didn't matter that the data had been cheerfully shared with other researchers. The California bar wanted no part of this important research. A court battle is now underway.

Meanwhile, Sander and University of Arizona law professor Jane Yakowitz Bambauer have taken to examining one the most dearly held beliefs of affirmative-action advocates — that enrolling in the most prestigious school one can get into is the key to success. This premise, central to affirmative action, turns out to be false: In predicting future income, getting good grades in law school matters more than getting into a top law school. And as Sander and Bambauer demonstrate in The Secret of My Success: How Status, Eliteness and School Performance Shape Legal Careers, this is true for law students generally, not just under-represented minorities.

Put differently, aspiring lawyers who tear their hair out to get into the most prestigious law school possible — figuring they can just cruise to a law degree once they get to campus — are making a mistake. They need to be putting at least as much effort into excelling once they are in school. If students at Harvard don't work hard, their professional stars may be eclipsed by lawyers with similar entering credentials who attended lesser law schools and made better grades.

Again and again, the results are the same, no matter what the area of study: Attending a highly competitive school is a good thing. But so is getting good grades. Indeed, getting good grades is somewhat more important than attending a prestigious school. A public policy that ensures that African-American and Hispanic students will disproportionately attend schools where their grades are likely to be worse than their classmates' thus works to the minority students' disadvantage.

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Anyone who has been to college, law school or medical school recently has seen this in action (if you are older, ask your kids). Unfortunately, many who have pointed this out in the past have been called racist.

The fact of the matter is that anyone who is let in for reasons outside their academics(be it racial preferences or the so-called white privilege of "legacy") is being set up for failure. The fact remains that by and large, universities are meritocracies whereby the smartest students will rise to the top. However, and I'm going to use a boxing analogy, when you put someone above their weight class, they may succeed but chances are much better than will get crushed. As a result, you aren't doing any favors by letting a kid into Harvard law who has Cincinnati scores (just to use the Professor's school as an example).

Hopefully, the academics in charge of universities will finally realize this.

Posted by: Michael | Jan 17, 2013 10:08:01 AM

I have said this in prior posts but I think it bears repeating. Here is some great anecdotal evidence from my law school (ranked in the 50s or 60s depending on the year). Black students represented maybe 10-15% of the school, yet not a single one graduated with honors (roughly the top 20% of the class). I think it is safe to assume that any black student who had the ability or preparation to place them at the top of my class was enrolled at a much higher ranked school.

Preferences just follow these poor kids all through life. They get into a better college than they are prepared for and struggle or shift to an easy major. Then they get into a law school that is not matched to their ability or level of preparation and struggle. If they pass the Bar, due to all the diversity and inclusiveness crap they will likely get a job where their qualifications pale in comparison to their peers. This will be quite evident as they perform their work in the first few years, but diversity is so important to firms now that they will likely be given easier assignments and treated with kid gloves unless they are so bad they cannot afford to be retained. And the poor kid is left wondering if they really belong in the job they hold.

Who benefits from this system besides the people who pat themselves on the back for having such great diversity statistics?

Posted by: Todd | Jan 17, 2013 11:33:22 AM

Michael, what are you talking about? Of course you're doing kids plenty of favors admitting them into universities and colleges that their academic scores don't invite. Those universities and colleges teach the same curriculum as another other institution. And most employers who are obsessed with named schools don't give a damn what your GPA is so long as you have some "reputable" school to place beside your name on the company's website.

Posted by: Donna | Jan 17, 2013 12:34:28 PM

No one is comparing Harvard and Cooley, which is what your comment seems to suggest. We are comparing schools that are arguably close (the A+ schools with the A-/B+ schools or the B+ schools and the B-, etc.). Yes, all things being equal, an employer will probably pick the kid from the better school. However, as the story reports, all things arent equal. The kids getting into the better schools who aren't qualified to be there are struggling.

As a result of the struggling, they won't even qualified to apply for the job. Most big law, gov't, in-demand public service, and clerking jobs have very stringent hiring requirements (ie top % in class, certain gpa etc). As a result, if you went to a school you weren't qualified for your school and thus have crummy grades, you don't even have the chance to apply. Additionally, its not just the school name that employers care about, they also want to list your law review article, honors, dean's list etc. and for the kids who struggled these don't exist. So yeah, you may be able to tick the box for "school" (since this is not just a top school issue) and "minority" but you miss out on all the accomplishment boxes. My guess is youd be much better off having gone to the slightly worse ranked school and kicking butt, then you may miss out on the "school" box but you'd have all the accomplishment boxes, which are definitely more important for that first job.

Posted by: Michael | Jan 18, 2013 9:32:53 AM

Affirmative action is somewhat like many college football programs that successfully recruit top black players based upon their athletic ability rather than success in the classroom -- once the players have served their purpose, those who have smugly congratulated themselves for getting them to join the team don't care if the players graduate or are ready for jobs outside of football.

Posted by: Woody | Jan 18, 2013 9:45:40 AM

I'm left with a sad hunch that affirmative action persists not so much because it's supposed to give underrepresented minorities a professional education but because it's supposed to give the white kids a social education.

Posted by: Twononymous | Jan 18, 2013 4:56:42 PM


The thing your post seems to miss is that AA has a cascade effect down the school hierarchy. To use California schools as an example, it may be true that a kid that gets into Stanford or Berkeley is better off even if he doesn't do well academically. But is also true for the kid that gets into UCLA or USC? What about Davis? What about Pepperdine or Hastings? Loyola? Santa Clara?

At some point (and I would say that point is right after Stanford or Berkeley), the school name is no longer enough of a big deal to make up for the poor performance.

Posted by: john | Jan 18, 2013 5:31:38 PM

Social engineering always has its unwanted consequences which the proponents of affirmative actions don't want to talk about. You can only end racial discrimination by ending racial discrimination, not by starting a new kind of racial discrimination.

Self-righteous social engineering always fails. And once again, so eloquently argued by Prof. Gail Heriot in her well-written essay "The Sad Irony of Affirmative Action".

Asian Americans Against Affirmative Action (AAAAA)
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Posted by: AsianAmericans | Jan 20, 2013 1:07:46 PM

I find the suggestion that legacies aren't benefiting from going to a higher ranked college fairly remarkable. Their parents are rich, well educated, successful, and intelligent.

They generally don't waste their money.

So why would all of these successful people be throwing away money to get their kid into a top school if they didn't think it would help them later in life? Why all of the donations and committee work and extracurriculars and sports for their kids? Why the high-priced private K-12 education?

Why aren't rich parents scouting out the schools with the dumbest kids they can find so that they're kids can get straight As?

Something is fishy about these affirmative action critiques. It's do as we say, not as we do.

Posted by: Anon | Jan 20, 2013 3:29:58 PM

I am a disabled attorney. Once I earned my JD from a first-tier law school, I spent years unemployed but not for want of trying. I applied for literally thousands of jobs and with the Army JAG. Without exception, I was rejected from each one. The scumbag proponents of "diversity" for gays and women should answer to the disabled. As a group, our poverty rate is over 25% (a rate comparable to American Indians) but no one, NO ONE is advocating for us.

The crapola about "unconscious bias" is nonsense. Disabled people are entirely invisible and tragically coalitions for the able-bodied (i.e., NAACP, NOW, and GLAAD spring to mind) seeking to remedy this problem of unconscious bias just entrench the problem.

Law firms that tout being "family friendly" are the worst offenders. For years I used to scan the National Association of Law Placement (NALP) to see what firms might hire the disabled. Without exception, no top 100 law firm had ANY disabled lawyers or partners. These were the same law firms that trumpet how gay and family friendly they are. It is POINTLESS FOR THE DISABLED TO GET LAW DEGREES BECAUSE THEY WILL NEVER GET HIRED BY A LAW FIRM AND NEVER REPAY THEIR CRUSHING LAW SCHOOL DEBTS.

Might I add, debts made increasingly by the practice of capitalizing unpaid debt back into the principal if the student should fall ill and become unable to repay it. After graduation, I diligently repaid my private loans until the day I fell ill. I was proud to see the principal fall until then. One year later when I returned to work, the principal was even larger than the day after I graduated. I will NEVER REPAY my loans until the day I retire.

Until society opens up for its disabled members, affirmative action remains a bright and shining lie.

Posted by: Affirmative Action is Bright and Shining Lie | Feb 26, 2013 9:23:02 PM