People who believe that racial discrimination is a legitimate means to a desirable political end (at least if your heart is pure and you mean well) are all in a swivet over a report just released by the U. S. Commission on Civil Rights on affirmative action in law school admissions.
The report recommends that law schools “voluntarily provide disclosure to the public and, at the very least, to potential applicants on student academic performance, attrition, graduation, bar passage, student loan default, and future income disaggregated by academic credentials.”
If it isn’t immediately obvious why this should be controversial, you perhaps don’t understand that “disaggregated by academic credentials” is polite politician-speak that really means accounting for the fact that law schools admit black students with far weaker credentials, on average, than they require of white and Asian students.
That’s not just what critics say about law-school admission policies; it’s what university officials themselves claim in defense of their policies. “Defense,” mind you. Officials at the University of Michigan, arguing the benefits of “diversity” in the case Grutter v. Bollinger, conceded that if they evaluated students from “underrepresented” minority groups by the same criteria they used for whites and Asians, three of every four would not have been admitted.
One consequence is distressingly high failure rates on the bar exam. According to a study by the Law School Admission Council, 96.7 percent of white law grads who take the bar exam eventually pass it, that is, 3.3 percent never do no matter how many times they take it. The comparable failure rate for blacks is 22.4 percent (cited by John Rosenberg on his blog www.discriminations.us, which has multiple posts and links).
Gail Heriot, who joined the commission just this year, said in an Aug. 26 op-ed for the Wall Street Journal (subscription, but there’s a Google cache) that the prospects for eventual success for those entering law school are really even worse than that.
Under current practices, only 45% of blacks who enter law school pass the bar on their first attempt as opposed to over 78% of whites. Even after multiple tries, only 57% of blacks succeed. The rest are often saddled with student debt, routinely running as high as $160,000, not counting undergraduate debt. How great an increase in the number of black attorneys is needed to justify these costs?
She discusses a study released by UCLA law professor Richard Sander in 2004 and published the following year in the Stanford Law Review. He attributes the high failure rate in part to the mismatch between black law students and the institutions they attend. Because the top schools dip further into the pool of black applicants, law schools in every tier find the pool depleted of applicants comparable to the white students they admit, and black law students cluster disproportionately at the bottom of their class. As a result, Sander believes, there are actually fewer black lawyers than there would be without racial preferences in admissions.
Sander’s explanation for the disparity in outcomes has been angrily rebuffed (though not, in my view, successfully refuted) by supporters of preferential admissions policies. If Sander is right all justifications for such policies are beside the point. They don’t accomplish what they are supposed to, and moreover can do harm to students who don’t know before they choose a law school how likely they are to succeed there.
More research might settle the question, but Sander’s request for data on bar passage rates has been denied by the California State Bar. Rosenberg points out that exactly the kind of data Sander requested has been obtained, and used, by some of the very same people who are now trying to prevent him from getting it.
If the commission’s recommendations were followed, Sander and anybody else who wanted to could do the research. That’s why the demand for transparency and honesty is a threat to people who believe that racial discrimination in pursuit of equal outcomes is no vice, and colorblindness in pursuit of equal opportunity is no virtue.