Paul L. Caron

Tuesday, August 28, 2007

Commission on Civil Rights Releases Affirmative Action in American Law Schools

The U.S. Commission on Civil Rights today released Affirmative Action in American Law Schools, a critical evaluation of the use of racial preferences in American law school admissions. From the press release:

This Commission finds that "admitting students into law schools for which they might not academically be prepared could harm their academic performance and hinder their ability to obtain secure and gainful employment..." Moreover, the Commission finds that racial preferences might also contribute to racial income and wealth disparities. The Commission expresses particular concern about the lack of transparency in law school admissions, urging legislation to require federally-funded law schools to publicly disclose their use of racial preferences.

The Commission admonished that the ABA's Council of the Section of Legal Education and Admissions of the Bar has adopted a diversity standard that tacitly prods law schools to use racial preferences in student admissions. The Commission criticizes the ABA standard because it "substitutes the judgment of the Council for that of the law schools in deciding whether diversity is essential to their educational mission."

Chairman Gerald A. Reynolds commented, "Race-based admissions have been found to harm minority law students by setting them up for failure. Law schools that continue to use racial preferences despite this evidence should at least disclose the risks of academic mismatch to minority student applicants." Continuing, Chairman Reynolds said, "A true civil rights strategy would focus on these students much earlier in their educational development, rather than providing them with inadequate training and then using preferential treatment to admit them into schools at which they are likely to fail."

For the full 220-page report, see here.  For press and blogosphere coverage, see:

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This article should be dismissed because it is deceptive and is nothing short of propaganda. For instance, the author of this article draws on the authority of the press release but does not accurately express the entire debate. Much of what is in the press release seems to be a paraphrase of the comments made by Professor Richard Sanders of UCLA. In response to his comments, the official report includes an alternative view point made by Professor Richard Lempert of the University of Michigan Law School. The report reads as follows:

“Professor Lempert criticized Sander’s research methodology as flawed and unscientific. He referred to survey data that appear to contradict Sander’s findings by showing race, ethnicity, and LSAT score had no role in predicting future income or career satisfaction. Lempert also argued that elimination of racial preferences would result in significant decreases in minority admissions and a 21 percent decrease in the number of African-American lawyers, not the increase projected by Sander. While he agreed that the racial disparities in academic performance and bar passage are a cause for concern, he disagreed that academic mismatch was the cause. Rather, he attributed these disparities to both the greater and often unmet financial need of African-American law students and poor elementary and secondary education.”

Later, the report cites a detailed critique of Professor Sander's study by Professor Lempert. The report reads in this manner:

"Professor Lempert first responded to Professor Sander’s testimony by presenting findings of a survey that he and several colleagues conducted of African-American graduates of the University of Michigan Law School from a 27-year period. The great majority of these students were admitted with substantially lower admissions credentials because of racial preferences. He and his colleagues found that, in the 1970s, 98.5 percent of respondents to this survey graduated and passed the bar; for the 1980s, 95.1 percent; and for the 1990s, 96.1 percent. They also found that race, ethnicity, and LSAT score had no role in predicting post-law school income or career satisfaction. Professor Lempert thought these survey results showed that gaps in applicant credentials do not necessarily result in poor achievement, contrary to Sander’s hypothesis."

"In his oral remarks, Lempert referred the Commission to his written testimony for his in-depth critiques of the reliability of Sander’s findings, in addition to his published articles on the subject and to noted academics who disagreed with Sander’s conclusion, namely Ian Ayres and Richard Brooks of Yale University, Daniel Ho and Michelle Dauber of Stanford; Jesse Rothstein of Princeton, and Albert Yoon of Northwestern, among others."

Thankfully, someone was in the room to be the voice of reason when Professor Sander's argued against the promotion of diversity and equal access through affirmative action. I only wish there was a voice of reason in the room the day this article was published on the web for all of us to see.

Posted by: Tremaine Ross | Jul 22, 2008 12:17:31 AM

Many discussions and articles discounting the benefits of Affrimative Action (AA) fail to address both sides of the equation. For instance, along with an increase in the % of failed students also comes an increase in the quantity of successful graduates. Many more African-Americans have graduated law school each decade from the 1960s. In addition, there are no discussions addressing why AA is needed to begin with, which is the institutionalized inferior education African-Americans received way before Brown. For some reason, opponents to AA feel that the effects of such treatment disappears immediately upon integration.

Posted by: Ali | Jan 2, 2008 10:43:30 PM

You are all missing the point.

Posted by: Mark | Dec 12, 2007 1:15:54 PM

Success or failure isn't as important as the opportunity!

Posted by: Malcolm | Nov 13, 2007 4:42:00 PM

This experience was, predictably, quite stressful and destructive of their self-confidence.

Law school does this to most students! Many 1Ls drop out because of stress! Every black student in my law school class graduated and passed the bar on the first time.

Posted by: Zoe | Aug 30, 2007 7:49:47 AM

Are there comparable mandates for medical schools, and if so why?

Posted by: brian | Aug 29, 2007 2:53:11 PM

There are no comparable "diversity mandates" for Cardiothoracic Surgeons or Airline Pilots. Wonder why?

Posted by: Tom | Aug 29, 2007 7:19:15 AM

The Commission's finding that racial preferences in law school admissions is exactly what I observed when I was in law school, which was and is a highly regarded law school. There were six African-American law students in my section of about 105 students. Of those six, only one--a bright lady who didn't need an unlevel playing field to compete on an equal level with her peers--graduated. The others were thrown into an unfair competition with better qualified students in a blind grading system. This experience was, predictably, quite stressful and destructive of their self-confidence.

The five who would not have been admitted but for racial preferences didn't even come back for their second year. The racial preferences resulted in zero or less than zero benefit to those they were intended to benefit. At the same time, the racial preferences surely deprived five more qualified students from the opportunity to enroll at the law school of their choice.

Posted by: DJ | Aug 29, 2007 5:35:02 AM