The real impact of eliminating affirmative action in American law schools: an empirical critique of Richard Sander's study.

• Author: Chambers, David L.
• Position: Response to Richard H. Sander, Stanford Law Review, vol. 57, p. 367, November 2004

INTRODUCTION I. THE EFFECTS OF ENDING AFFIRMATIVE ACTION ON THE PRODUCTION OF AFRICAN AMERICAN ATTORNEYS A. The Effects on Law School Applications, Admissions, and Matriculation 1. Sander's projections are based on 2001 data, which does not reflect current trends 2. Sander overestimates the numbers of African Americans who would apply to law school, get into the law school to which they would apply, or choose to enroll B. The Effects on Law School Performance, Graduation, and Passage of the Bar 1. Concerns about statistical methods 2. Law school performance and graduation 3. Performance on the bar examination C. The Bottom Line: The Net Effects on the Numbers of African American Lawyers II. THE IMPACT OF ENDING AFFIRMATIVE ACTION ON THE DISTRIBUTION OF AFRICAN AMERICAN STUDENTS AMONG LAW SCHOOLS CONCLUSION INTRODUCTION

In 1970, there were about 4000 African American lawyers in the United States. Today there are more than 40,000. The great majority of the 40,000 have attended schools that were once nearly all-white, and most were the beneficiaries of affirmative action in their admission to law school. American law schools and the American bar can justly take pride in the achievements of affirmative action: the training of tens of thousands of African American (as well as Latino, Asian American, and Native American) practitioners, community leaders, judges, and law professors; the integration of the American bar; the services that minority attorneys have provided to minority individuals and organizations once poorly serviced by white lawyers; and the educational benefits that law students of all backgrounds derive from studying in a racially diverse environment. (1)

But not every student admitted through affirmative action realizes his or her ambition to practice law. Of the African American students who entered law school in the fall of 1991, the one year for which we have good data, about 43% either did not graduate or graduated but had not passed a bar exam within two years of graduation. Only 17% of the white students in the 1991 cohort suffered either of these fates. (2)

In A Systemic Analysis of Affirmative Action in American Law Schools (Systemic Analysis), Professor Richard Sander argues that if affirmative action were eliminated in law school admissions, the rate at which African American students fail to graduate and pass the bar would be reduced substantially without any concomitant loss in the numbers of African Americans joining the bar. (3) He acknowledges that fewer African American students would be admitted to law school, but predicts that those who were admitted would graduate and pass the bar at much higher rates because they would no longer be attending schools where the competition was too stiff for them. Sander builds to an astonishing forecast: "that the number of black lawyers produced by American law schools each year and subsequently passing the bar would probably increase if those schools collectively stopped using racial preferences." (4) In particular, he predicts that the cohort entering law school in 2001 would have produced 7.9% more new black lawyers entering the bar. (5)

We agree with Sander that the high rate at which African American students fail to graduate and fail to pass the bar is alarming. (6) Indeed, we take the problem so seriously that despite the high value we place on racial diversity within law schools, the four of us would not support affirmative action as currently practiced in law school admissions if we believed that employing race-neutral admissions criteria would in fact lead to a net increase in the number of African Americans passing the bar. (7) We find, however, that while Sander has appropriately forced us and others to take a hard look at the actual workings of affirmative action, he has significantly overestimated the costs of affirmative action and failed to demonstrate benefits from ending it. The conclusions in Systemic Analysis rest on a series of statistical errors, oversights, and implausible assumptions. It is these empirical shortcomings that we address in this Response.

The next Part of the Response deals step-by-step with the process of becoming a lawyer, from application, admission, and enrollment in law school through graduation and sitting for the bar exam. At each stage we explain why the findings and claims in Systemic Analysis are not supported by the data. We conclude that if affirmative action was ended, there would be a substantial net decline in the number of African Americans entering the bar rather than the 7.9% increase that Sander forecasts. We cannot say precisely how severe this decline would be, but our best estimate is that it would be in the range of 30% to 40%.

In the final Part, we shift to a related question: without affirmative action, how would African Americans be distributed across the range of American law schools? Sander acknowledges that the numbers of African Americans at the dozen or so most elite schools would be reduced by at least three-fourths, but expects that most other schools would have as many African American students as they do today. We disagree. We believe that the numbers of African Americans would decline substantially at the great majority of the nation's fifty to eighty most selective law schools and expect that this decline would be followed in turn by a decline in the number of African Americans attaining the sorts of leadership positions that graduates of these schools attain today.

As we begin, we want to emphasize the limited scope of our Response. First, Sander confines his analysis to African Americans, and we have done the same. His findings and ours might be quite different for Latinos, Native Americans, and other groups that have benefited from affirmative action. Second, Sander addresses more aspects of the affirmative action system than we examine here. We focus solely on the likely consequences of ending affirmative action because we agree with Sander that it is a "central question." (8) Indeed, it is almost certainly the central question of interest to policymakers and the public that his article raises. We want to make clear, however, that our silence on other claims Sander makes, such as his claims regarding the evidence before the Court in Grutter v. Bollinger on the University of Michigan Law School's admissions procedures (9) or his analysis of the job market for African American graduates, (10) does not mean that we agree with Sander. Had we been allowed more space, we would have disputed aspects of these claims as well.

Indeed, space prevents us from being as detailed as we would like in dealing with some aspects of Systematic Analysis we do address. For those readers who desire a finer-grained analysis, we have created a longer version on the Web. (11) It is on the Web also that we will respond point by point to the counterclaims that Sander makes in this issue.

1. THE EFFECTS OF ENDING AFFIRMATIVE ACTION ON THE PRODUCTION OF AFRICAN AMERICAN ATTORNEYS

   1. The Effects on Law School Applications, Admissions, and Matriculation

      Part VIII of Systemic Analysis estimates the impact on African American enrollments in law school if affirmative action were ended tomorrow. (12) Sander's estimate is built of the following steps: (1) an assumption that there would be no decline in African American applications to law school; (2) an estimate that there would be only a 14% decline in the numbers of African American applicants who would be admitted to at least one school and an assumption that those eliminated would be the 14% of current African American law students with the lowest entry credentials; (3) an assumption that among those admitted, African Americans would maintain current matriculation rates (i.e., that "cascading" to lower schools would not reduce the rate at which admitted African Americans chose to enroll in law school); and hence, (4) a forecast that there would be only a 14% decline in the total number of African Americans matriculating in American law schools. We believe each of these assumptions and predictions is unsound, and that all of them err in the direction of overestimating the probable levels of matriculation by African Americans.

      Sander rests his conclusion that ending affirmative action would produce only a 14% decline in African American matriculation to law school on the research of Linda Wightman, who directed the Bar Passage Study for the Law School Admission Council (LSAC). (13) Using what she referred to as the "grid" method, which applies white admission rates to African Americans with similar LSAT scores and similar undergraduate grade point averages (UGPA), Wightman concluded that, in 2001, if African American law students had been admitted in the same proportions as whites with similar credentials, 14% of the African American students who received at least one offer of admission would not have received any offers at all, even if they had applied to a wide range of schools to which they never actually applied. (14) Sander accepts Wightman's 14% figure as a realistic estimate of the probable decline in African American admissions. For two different sets of reasons, the actual decline in matriculation by African American students would be much greater.

      1. Sander's projections are based on 2001 data, which does not reflect current trends

         Sander bases his predictions on data from the year 2001, which was the most recent year available to Wightman when she wrote her article. While Sander treats 2001 as representative of what would happen if affirmative action ended at law schools today, (15) no single year can serve that function. Further, 2001 turns out to have been one in a group of adjacent years when white and overall application levels to law school were comparatively low.

         In Table 1, we provide for each year from 1991 through 2004 grid model estimates based on exactly the same procedure that Wightman used for 2001. (16) The table...