Do Racial Preferences Affect Minority Learning in Law Schools?

• Date: 01 June 2013
• DOI: http://doi.org/10.1111/jels.12007
• Author: Doug Williams
• Published date: 01 June 2013

Do Racial Preferences Affect Minority

Learning in Law Schools?

Doug Williams*

An analysis of the The Bar Passage Study (BPS) reveals that minorities are both less likely to

graduate from law school and less likely to pass the bar compared to whites even after

adjustments are made for group differences in academic credentials. To account for these

adjusted racial gaps in performance, some researchers put forward the “mismatch hypoth-

esis,” which proposes that students learn less when placed in learning environments where

their academic skills are much lower than the typical student. This article presents new

results from the BPS that account for both measurement-error bias and selection-on-

unobservables bias that makes it more difficult to find a mismatch effect if in fact one exists.

I find much more evidence for mismatch effects than previous research and report magni-

tudes from mismatch effects more than sufficient to explain racial gaps in performance.

I. Introduction

Racial preferences are a pervasive aspect of college and graduate school admissions.1

Although these preferences aim to create more diverse campus environments and to

expand the opportunities available to targeted groups, some social scientists argue that

large racial preferences may have harmful, unintended consequences for the intended

beneficiaries.2A poverty of good data has hindered efforts to test these arguments, but the

release of the Bar Passage Study (BPS), a large and comprehensive panel data set on law

students, held out the promise of studying the effects of racial preferences in the nation’s

law schools.3An analysis of the BPS reveals not only that there are large racial gaps in

*Frank W. Wilson Professor of Economics, University of the South, Sewanee, TN 37383; email: dwilliam@

sewanee.edu.

1Although the term “racial preferences” is often used synonymously with “affirmative action” (and is sometimes used

that way in this article), preferential admissions are only one part of most affirmative action programs, including those

in higher education. Affirmative action also embraces such activities as targeted outreach, reexamination of tradi-

tional admissions criteria, and preferential financial aid. None of these activities are implicated by the mismatch

hypothesis discussed in this article.

2Early proponents of the mismatch hypothesis include James Davis (1966), Clyde Summers (1970), and Thomas

Sowell (1985).

3Richard Sander (2004) was the first to use this new data set to examine the effects of racial preferences on law school

performance.

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Journal of Empirical Legal Studies

Volume 10, Issue 2, 171–195, June 2013

171

performance but, more importantly, that these gaps persist even after controlling for credentials.4

In other words, minorities are both less likely to graduate from law school and less likely to

pass the bar compared to whites even after adjustments are made for group differences in

entering academic credentials.

Advocates of the “mismatch hypothesis” argue that such gaps are both unsurprising

and explicable because racial preferences, by creating educational settings where minority

students have much lower academic credentials than the majority of their classmates, will

cause the students receiving large preferences to learn less and to accumulate less human

capital than they would in a classroom setting where they were better “matched.”5As a

consequence of mismatching engendered by preferences, students who receive prefer-

ences are less likely to graduate and less likely to pass the bar than whites with the same

credentials.

With the exception of Sander (2004), previous research using the BPS has concluded

that the balance of evidence is against the mismatch hypothesis. This article also uses the

BPS but builds on and differs from previous research in three ways. First, it focuses on bar

passage as the most direct important measure of learning outcomes found in the BPS. Prior

research has generally neglected bar passage and has focused instead on how racial pref-

erences ultimately affect the number of minority lawyers.6In particular, this article

addresses the effect of preferences on the quality of human capital rather than the effect

of preferences on the diversity of the lawyer population. Second, this article avoids unob-

servables bias issues related to race by restricting the article to within-race analyses. Third,

this article presents new estimates of mismatch effects after accounting both for the

measurement-error bias due to the absence of specific information about law school

selectivity and for selection-on-unobservables bias. Both biases have made it empirically

challenging in previous research to find a mismatch effect if in fact one exists. By presenting

consistent measurements of many outcomes across a variety of tests, this article helps

integrate and explain the findings of past mismatch scholarship. Finally, the article presents

results for a larger minority subgroup that includes blacks, Native Americans, and Hispanics

(prior research has focused only on blacks). I find much more evidence for mismatch

effects than previous research; indeed, I find that several different approaches to measuring

mismatch consistently produce estimates that appear to largely account for minority under-

performance on the bar exam.

The article proceeds with a literature review (Section II) and a more in-depth

examination of mismatch theory (Section III). Section IV introduces the BPS in greater

detail and summarizes the extent of credential disparities across racial groups, and both the

4The use of preferences will create a student population where the mean academic credentials of whites exceed the

mean academic credentials of blacks. It would be surprising if this racial gap in credentials did not by itself lead to

some racial gap in performance.

5Sander (2004).

6The effect of racial preferences on the number of minority lawyers is of obvious importance, but Sander’s observation

that preferences, by reducing graduation and bar passage rates, might decrease the number of minority lawyers was

at least partially responsible for this focus.

172 Williams