Thursday, January 17, 2013
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 MISSING BLACK LAWYERS
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.