By Gail Heriot
(Ms. Heriot is a member of the U.S. Commission on Civil Rights. This piece is adapted from Ms. Heriot's Commissioner Statement for the Civil Rights Report on Affirmative Action at American Law Schools released last fall.)
I have no doubt that those who originally conceived of race-based admissions policies - nearly forty years ago - were acting in good faith. By lowering admissions standards for African-American and Hispanic students at selective law schools, they hoped to increase the number of minority students on campus and ultimately to promote minority integration into both the legal profession and mainstream society. Similarly, however, I have no doubt of the good faith of those who opposed the policies. Indeed, their warnings that academic double standards cannot solve the nation's problems and may well exacerbate them seem especially prescient in light of recent research.
The real conflict over race-based admissions policies has not been about good or bad faith or about whether we should aspire to be a society in which members of racial minorities are fully integrated into the mainstream. There is no question we should. The conflict is about whether racial discrimination - something that nearly all Americans abhor - is an appropriate tool to achieve that end. Put starkly: Should the principle of non-discrimination be temporarily sacrificed in the hope that such a sacrifice will, in the long run, help us become the society of equal opportunity that we all aspire to?
Justice Stanley Mosk warned of the risks associated with such temporary compromises with principle over thirty years ago, when, writing for the California Supreme Court in Bakke v. UC Regents (1976), he held racially discriminatory admissions policies to be unconstitutional:
To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.
Mosk would probably laugh to hear his view characterized as "conservative" today; far more frequently he was accused of the opposite tendency. But whatever his political persuasion, Mosk had been a staunch ally of the civil rights movement from its beginning. Far from seeing a contradiction between his support for the civil rights movement and his opposition to the "minority friendly" race-based admissions policies in Bakke, he viewed them as one and the same. His opposition to race discrimination was a matter of principle. And he was unwilling to sacrifice that principle for the "dubious" practical gains promised by preference supporters.
Mosk's vision of civil rights did not prevail. His opinion in Bakke was superseded by the U.S. Supreme Court's fractured decision in Regents of the University of California v. Bakke (1978) and again by the just-as-fractured decision in Grutter v. Bollinger (2003) twenty-five years later. Despite Mosk's warning, race-based admissions policies mushroomed on college and university campuses, and a thriving diversity bureaucracy was established to administer them.
If Mosk was right, the mistake will be difficult to correct at this late date. It isn't just the iron rule of bureaucracy at work today - that first and foremost, bureaucracies work to preserve themselves. Many distinguished citizens - university presidents, philanthropists, judges and legislators - have built their reputations on their support for race-based admissions. Their jobs are not at stake, but their sense of accomplishment may be. Overcoming that will not be easy.
But if anything can cause supporters of race-based admissions policies to stop and reconsider, it is Dr. Richard Sander's careful study of the effects of race-based admissions on the legal profession. If his findings are correct, there are today approximately 7.9% fewer, not more, practicing attorneys as a result of race-based admissions policies. It is unlikely that any but the most evidence-resistant devotee of these policies would want to support them if their effects are precisely the opposite of what was intended. Indeed, if the consequences of race-based admissions policies turn out to be simply a wash - neither increasing nor decreasing the number of practicing attorneys - it is doubtful that many of their current supporters will remain so.
Sander attempts to gauge the consequences of "academic mismatch." He finds what many who are familiar with law schools already knew: When elite law schools lower their academic standards in order to admit a more racially diverse class, schools one or two academic tiers down feel they must do likewise, since the minority students who might have attended those second- or third-tier schools based on their own academic record are instead attending elite schools. The problem is thus passed to the fourth and fifth tiers, which respond similarly. As a result, there is now a serious gap in academic credentials between minority and non-minority law students at all levels. Up and down the pecking order, the average black student has an academic index that is more than two standard deviations below that of his average white classmate. Only historically minority law schools appear to have escaped the full effect of the cascade.
Not surprisingly, such a gap leads to problems. Students who attend schools where their academic credentials are substantially below their fellow students' tend to perform poorly. The reason is simple: While some students will outperform their entering academic credentials, just as some students will underperform theirs, most students will perform in the range that their academic credentials predict.
No serious supporter of race-based admissions denies this. For example, William G. Bowen and Derek Bok, authors of The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions and leading advocates of racially preferential admissions policies, candidly admit that the problem is serious in the undergraduate context: "College grades [for affirmative action beneficiaries] present a... sobering picture," they wrote. "The grades earned by African-American students at the [schools we studied] often reflect their struggles to succeed academically in highly competitive academic settings."
The picture is no less sobering in law schools. Sander's research demonstrates that in elite law schools, 51.6% of African-American law students had first-year GPAs in the bottom 10% of their class as opposed to only 5.6% of white students in 1992 (the year for which Sander was able to find national data). Nearly identical performance gaps existed at law schools at all levels (with the exception of historically minority schools). At mid-range public schools, the median African-American student's first-year grades corresponded to the 5th percentile among white students. For mid-range private schools, the corresponding percentile was 8th, and for lower-range private schools it was 7th. With disappointingly few exceptions, African-American students were grouped towards the bottom of their class. Moreover, contrary to popular lore, the performance gap did not close as students continued through law school. Instead, by graduation, it had gotten wider. (The Sander study did not look at Hispanic law students.)
I am not aware of any critic who disputes these figures. Even his most passionate critics - and there are some - have to concede that the relative performance of African-American law students is very discouraging.
Only slightly more controversial is Sander's finding that all this was almost entirely the result of race-based admissions. When African-American and white law students with similar entering credentials competed against each other, they performed very close to the same. Race-based admissions, therefore, were creating the illusion that African-American students were destined to do poorly in law schools at every level. The real problem was far less daunting. There were fewer African-American students than anyone would prefer with the entering academic credentials necessary for admission on a color-blind basis to the most elite law schools. But there were many more who would likely do well at mid-tier schools - if they were only attending those schools.
In the past, supporters of race-based admissions often asserted that, despite the likelihood of poor grades, minority students were better off accepting the benefit of a preference and graduating from a more prestigious school. Someone had to be at the bottom of every class; there was no real harm in its being minority students. It is still better to be a Harvard graduate than an honors student at a state university like Texas or Virginia - or so the argument ran. (Interestingly, the best available evidence shows that attendance at an elite college or university does not add to earnings capacity. When students at such schools are matched with students with similar entering credentials who were accepted to an elite school, but chose to be educated elsewhere, the earnings of the elite school enrollees are the same or possibly less.)
The fear among preference opponents, however, is that students actually learn less, not more, when they are grouped with other students who are much better prepared for the course material. (I have little doubt, for example, that I would learn less in a physics class at a school like Cal Tech, which specializes in the training of the best prepared science students, than I would at a university geared to a non-physics major like me.) In addition, in a class in which all students have roughly similar entering credentials, the students who wind up at the bottom of the class are often those who put the least effort into their studies. When grades come out, a valuable lesson can be learned by all: Hard work produces results. On the other hand, when the differences in student performance are a reflection of differences in academic skills and preparation, the lesson to be learned is less clear. It may be easy for students to become demoralized and even resentful of the standards that are being used to measure their performance.
Few advocates of race-based admissions made any effort to demonstrate that preference beneficiaries were in fact better off than they would have been had they attended a school in which their entering credentials matched those of their peers. It was taken on faith. That's why the Sander study is so important. Unfortunately, the news he provides tends to bear out the fear that mismatch is hurting African-American students.
Sander notes two important effects of race-based admissions policies. First, African-American students attending law schools failed or dropped out at much higher rates than white students (19.3% vs. 8.2%). Overwhelmingly, this phenomenon was associated with poor performance and not financial hardship. Since many of these students who left law school would likely have performed better at a less competitive law school, they were, in a very real sense, victims of race-based admissions.
Second, among African Americans who graduated and took the bar, the proportion who passed on their first attempt was not just lower than that for whites, it was lower even when one controls for academic index (LSAT and college GPA). For example, 71% of African Americans with an index of 400-460 failed the bar on their first effort, while only 52% of whites did. Similarly, 26% of African Americans with an index between 640 and 700 failed their first time, while only 13% of whites did.
Ultimately, only 45% of African Americans who entered law school passed the bar on their first attempt as opposed to over 78% of whites. Even after multiple attempts, only 57% of African Americans succeeded. The gap was thus never closed.
Something was clearly wrong. When African-American and white law students with similar academic credentials competed against each other at the same school, they earned about the same grades. And when African-American and white students with the same grades from the same tier school took the bar examination, they passed at the same rate. Yet African-American students as a whole had dramatically lower bar passage rates than white students with similar credentials. What could explain this?
As Sander points out, the most plausible answer is that they were not attending the same law schools. The white and Asian-American students were 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 were learning while their minority peers were struggling at more elite schools. It is this phenomenon that has been dubbed "mismatch."
Sander calculates that if law schools were to use color-blind admissions policies, fewer African-American law students would be admitted to law schools (3182 vs. 3706), but, since those who were admitted would be attending schools where they had a substantial likelihood of doing well, fewer would fail or drop out (403 vs. 670). In the end, more would pass the bar on their first try (1859 vs. 1567) and more would eventually pass the bar (2150 vs. 1981) than under the current system of race-based admissions.
Sander's findings are stunning to anyone who has supported race-based admissions. But this is just one study. Sander himself is happy to concede that his work can be improved upon by further research. That is precisely why the U.S. Commission on Civil Rights (on which I sit) has recommended that more research be funded and undertaken.
The stakes are high. If Sander is right or even partly right, it may fairly be said that almost forty years of race-based admissions at law schools will have been for nothing - or indeed worse than nothing. Just as Justice Mosk warned, the principle of nondiscrimination will have been sacrificed "for the sake of a dubious expediency" - a practical gain that never materialized. Indeed, just the opposite will have happened: Fewer African-American attorneys will have been produced than would have been under a color-blind admissions system. Alas, such irony is hardly unfamiliar in the world of public policy. When principle is sacrificed to expediency, often the results are not what the advocates of expedience are expecting.
Some supporters of racial preferences essentially argue that Sander has reported a lightning bolt from a clear, blue sky - startling to hear about, but ultimately just a mistake. In fact, however, the skies have been clouding up for quite some time, and Sander's study is consistent with an increasing body of research.
Rogers Elliott, A. Christopher Strenta, et al. have looked at why African-American and Hispanic students are less likely to follow careers in science than white or Asian-American students. In 1996, they published "The Role of Ethnicity in Choosing and Leaving Science in Highly Selective Institutions," in which they found that African-American and Hispanic students at elite colleges and universities are about as likely as white or Asian-American students to start off intending to major in science. But they abandon those intentions in larger numbers. The authors concluded that mismatch probably played a major role:
Why are so many talented minority students, especially blacks, abandoning their initial interests and dropping from science when they attend highly selective schools? The question has many possible answers, but we will begin with the factor we think most important, the relatively low preparation of black aspirants to science in these schools, hence their poor competitive position in what is a highly competitive course of study. As in most predominantly-white institutions, and especially the more selective of them, whites and Asians were at a large comparative advantage by every science-relevant measure ..., and on the composite predictor, the Academic Index, they were at a 1.75 [standard deviation] advantage.
That it is the comparative rather than the absolute status of the qualifications is clear from two strands of evidence. First students at historically black colleges and universities (HBCUs) have quite low average SAT scores and high school grades ... but they produce 40% of black science and engineering degrees with only 20% of total black undergraduate enrollment. For example, with SATM scores averaging 400, half the students at Xavier University are reported to be majoring in natural science; with scores somewhat higher (about 450), Howard University is the top producer of black undergraduate science and engineering degrees....
[T]hat brings us to the other strand of evidence for the competition argument. .... [Our evidence] shows how science degrees are distributed within each institution as a function of terciles of the SATM distribution.... Put concretely, a student with a SATM score of 580 who wants to be in science will be three or four times more likely to persist at institutions ... where he or she is competitive, than at institutions ... where he or she is not.
Similarly, in 2003, Drs. Stephen Cole and Elinor Barber published Increasing Faculty Diversity: The Occupational Choices of High Achieving Minority Students - a project funded by the Mellon Foundation. The authors' mission was to determine why more minority members are not attracted to careers in academia. Their conclusions, reached after extensively questioning 7,612 high-achieving undergraduates at 34 colleges and universities, pointed to mismatch as the culprit:
The best-prepared African Americans, those with the highest SAT scores, are most likely to attend elite schools, especially the Ivy League. Because of affirmative action, these African Americans (those with the highest scores on the SAT) are admitted to schools where, on average, white students' scores are substantially higher, exceeding those of African Americans by about 200 points or more. Not surprisingly, in this kind of competitive situation, African Americans get relatively low grades. It is a fact that in virtually all selective schools (colleges, law schools, medical schools, etc.) where racial preferences in admission is practiced, the majority of African American students end up in the lower quarter of their class...
African American students at the elite schools (the liberal arts colleges and the Ivy League) get lower grades than students with similar levels of academic preparation (as measured by SAT scores) than African American students at the nonelite schools (state universities and HBCUs). Lower grades lead to lower levels of academic self-confidence, which in turn influence the extent to which African American students will persist with a freshman interest in academia as a career. African American students at elite schools are significantly less likely to persist with an interest in academia than are their counterparts at nonelite schools. (Emphasis supplied.)
Even if Sander's specific finding that affirmative action has decreased the number of African-American practicing attorneys is proven wrong, however, his study has raised concerns that must be addressed. Given the hidden risks of academic failure that students with lower academic indices face (which are undisputed and indisputable), law schools have an obligation to give students, of all races and ethnicities, the information they need to decide for themselves about their future. And the U.S. Commission on Civil Rights has so recommended.
Some have expressed concern that requiring each law school to disclose the likelihood that a graduate with a particular range of entering credentials will pass the bar will only discourage minority students with lower indices. To me, however, disclosure as both a moral obligation and a matter of simple consumer fairness. Sander's findings that students with low academic indices tend to fare poorly in law school are not disputed. Nor is it disputed that this problem has a disproportionate impact on African-American law students.
A law school education is shockingly expensive - from the most prestigious schools to the least. At the University of San Diego, for example, where I am a member of the faculty, tuition and fees for the 2007-08 school year is $37,704 with an additional $956 for books and supplies and $800 in student loan fees. With modest living expenses, the University predicts that each student will have spent $57,100 this year. It is routine for law students to graduate with $160,000 or more in debt - a huge investment that ordinarily must be recouped by the increased earnings capacity of an attorney.
If the highest-paying law firms hired only from the most prestigious law schools, then prospective students offered an admissions preference might rationally choose to attend even if they knew this entailed significant academic risks. But Sander contends that elite schools confer no such unique advantage, and that getting good grades in law school - not attending the most elite law school possible, no matter what the cost - is more strongly associated with a successful legal career. Abundant anecdotal evidence bears this out. At Hogan & Hartson, which I selected because it is the firm at which I once practiced, associate salaries now start at $160,000, and fewer than half of the firm's associates graduated from top ten schools. Good grades at mid-tier or even less prestigious law schools can pay off. Many associates there attended law schools with moderate rank in the pecking order such as Albany Law School, the University of Maryland, Santa Clara University, the University of Tennessee, and West Virginia University. On the other hand, a student who fails or drops out of a top school or never passes the bar cannot practice at any law firm.
It is one thing for a student to decide to take a risk and enroll in a more prestigious law school than his academic credentials alone would justify (or indeed enroll in any law school). If he ends up doing poorly, at least he made his choice with his eyes open. It is another thing entirely to be the unwitting victim of affirmative action policies (or any other policy that admits students with comparatively low academic credentials). Yet, under current conditions, many students are exactly that - unwitting victims.
Law schools can and routinely do provide potential students with information about their graduates' overall bar passage rate. And it is right that they should. But it is not enough - not when many students are admitted to the class with entering credentials far below those of the average student. For them, the likelihood that the average student will pass the bar is worse than useless. It is entirely misleading. They need to know the likelihood that someone with their particular academic credentials at that school will pass the bar.
The Commission's recommendation is for all law schools, in the interest of fairness to all, to provide students with their bar passage rates analyzed by academic credentials. A potential student should be able to look at statistics indicating the likelihood that someone with similar LSAT scores and college GPA will succeed in law school and pass the bar upon graduation. If law schools are unwilling to adopt this modest reform voluntarily, such disclosure should be required of them.
Gail Heriot is a professor of law at the University of San Diego and a member of the U.S. Commission on Civil Rights.