A systemic analysis of affirmative action in American law schools.

• Author: Sander, Richard H.

INTRODUCTION I. A NOTE ON ORIGINS II. DEFINING THE ROLE OF RACE IN LAW SCHOOL ADMISSIONS III. THE CASCADE EFFECT OF RACIAL PREFERENCES IV. AN ASIDE ON THE VALUE OF ACADEMIC INDICES V. EFFECTS OF AFFIRMATIVE ACTION ON ACADEMIC PERFORMANCE IN LAW SCHOOL VI. EFFECTS OF AFFIRMATIVE ACTION ON PASSING THE BAR VII. THE JOB MARKET VIII. THE EFFECTS OF DROPPING OR MODIFYING RACIAL PREFERENCES CONCLUSION INTRODUCTION

For the past thirty-five years, American higher education has been engaged in a massive social experiment: to determine whether the use of racial preferences in college and graduate school admissions could speed the process of fully integrating American society. Since Bakke, (1) universities have often tended to justify affirmative action for its contributions to diverse classrooms and campuses. But the overriding justification for affirmative action has always been its impact on minorities. Few of us would enthusiastically support preferential admission policies if we did not believe they played a powerful, irreplaceable role in giving nonwhites in America access to higher education, entree to the national elite, and a chance of correcting historic underrepresentations in the leading professions.

Yet over the years of this extraordinary, controversial effort, there has never been a comprehensive attempt to assess the relative costs and benefits of racial preferences in any field of higher education. The most ambitious efforts have been works like The Shape of the River and The River Runs Through Law School. (2) These have provided valuable evidence that the beneficiaries of affirmative action at the most elite universities tend, by and large, to go on to the kinds of successful careers pursued by their classmates. This is helpful, but it is only a tiny part of what we need to know if we are to assess affirmative action as a policy in toto. What would have happened to minorities receiving racial preferences had the preferences not existed? How much do the preferences affect what schools students attend, how much they learn, and what types of jobs and opportunities they have when they graduate? Under what circumstances are preferential policies most likely to help, or harm, their intended beneficiaries? And how do these preferences play out across the entire spectrum of education, from the most elite institutions to the local night schools?

These are the sorts of questions that should be at the heart of the affirmative action debate. Remarkably, they are rarely asked and even more rarely answered, even in part. They are admittedly hard questions, and we can never conduct the ideal experiment of rerunning history over the past several decades--without preferential policies--to observe the differences. But we can come much closer than we have to meaningful answers. The purpose of this Article is to pursue these questions within a single realm of the academy: legal education in the United States. Several remarkable data sets on law schools and the early careers of young lawyers have recently emerged. Together, they make it possible to observe and measure the actual workings of affirmative action to an unprecedented degree. Here we begin the application of that data to the question of how much affirmative action across American law schools helps and hurts blacks seeking to become lawyers. The results in this Article are not intended to be definitive; they are intended to take us several steps in a new direction.

My goal in this Article is to be systemic--that is, to analyze legal education as a complete, interlocking system. As we will see, the admissions policies of law schools, as within any discipline, are necessarily interdependent. Individual schools have less freedom of action than an outsider might assume. Moreover, one cannot understand the consequences of racial preferences without understanding the relative trade-offs for students attending schools in different tiers of the education system. In many ways, law schools are an ideal subject for this type of systemic approach. The vast majority of states have fairly uniform educational requirements for lawyers, and the vast majority of law schools are licensed by the same national organizations. Nearly all aspirants to law school go through a similar application process and take a uniform exam, the Law School Admission Test (LSAT). First-year law students across the country follow similar curricula and are graded predominantly on a curve. Nearly all graduates of law school who want to practice law must take bar exams to begin their professional careers. (3) These uniformities make comparisons within the legal education system much easier. At the same time, the 180-odd accredited law schools in the United States encompass a very broad hierarchy of prestige and selectivity; like the legal profession itself, legal education is more stratified than most nonlawyers realize. This makes legal education an excellent candidate for the systemic analysis of affirmative action. If racial preferences are essential anywhere for minorities to vault into the more elite strata, they should be essential here.

My focus in this Article is on the effects racial preferences in admissions have on the largest class of intended beneficiaries: black applicants to law school. The principal question of interest is whether affirmative action in law schools generates benefits to blacks that substantially exceed the costs to blacks. The "costs" to blacks that flow from racial preferences are often thought of, in the affirmative action literature, as rather subtle matters, such as the stigma and stereotypes that might result from differential admissions standards. These effects are interesting and important, but I give them short shrift for the most part because they are hard to measure and there is not enough data available that is thorough or objective enough for my purposes. The principal "cost" I focus on is the lower actual performance that usually results from preferential admissions. A student who gains special admission to a more elite school on partly nonacademic grounds is likely to struggle more, whether that student is a beneficiary of a racial preference, an athlete, or a "legacy" admit. If the struggling leads to lower grades and less learning, then a variety of bad outcomes may result: higher attrition rates, lower pass rates on the bar, problems in the job market. The question is how large these effects are, and whether their consequences outweigh the benefits of greater prestige.

My exposition and analysis in this Article focus on blacks and whites. I do this principally for the sake of simplicity and concreteness. Many of the ideas that follow are complicated; to discuss them in the nuanced way necessary to take account of American Indians, Hispanics, and Asians would force me to make the narrative either hopelessly tangled or unacceptably long. And if one is going to choose a single group to highlight, blacks are the obvious choice: the case for affirmative action is most compelling for blacks; the data on blacks is the most extensive; and law school admissions offices treat "blacks" as a group quite uniformly--something that is not generally true for Hispanics or Asians. I concede that any discussion of affirmative action that ignores other ethnic groups (who often make up a majority of the recipients of preferences) is seriously incomplete. I am nearing completion of a larger work (to be published as a book) that, among other things, replicates many of the analyses found in this Article for other racial groups.

No writer can come to the subject of affirmative action without any biases, so let me disclose my own peculiar mix. I am white and I grew up in the conservative rural Midwest. But much of my adult career has revolved around issues of racial justice. Immediately after college, I worked as a community organizer on Chicago's South Side. As a graduate student, I studied housing segregation and concluded that selective race-conscious strategies were critical, in most cities, to breaking up patterns of housing resegregation. In the 1990s, I cofounded a civil rights group that evolved into the principal enforcer (through litigation) of fair housing rights in Southern California. My son is biracial, part black and part white, and so the question of how nonwhites are treated and how they fare in higher education gives rise in me to all the doubts and worries of a parent. As a young member of the UCLA School of Law faculty, I was deeply impressed by the remarkable diversity and sense of community the school fostered, and one of my first research efforts was an extensive and sympathetic analysis of academic support as a method of helping the beneficiaries of affirmative action succeed in law school. (4) Yet as I began my studies of legal education in the early 1990s, I found myself troubled by much of what I found. The first student survey I conducted suggested that UCLA's diversity programs had produced little socioeconomic variety; students of all races were predominantly upper crust. (5) Black-white performance gaps were very large, and this had visible effects on classroom interaction. I began to ask myself some of the questions explored in this Article, but for years the lack of data seemed an insuperable barrier to anything more than casual speculation. At the same time, I was somewhat dismayed by the unwillingness of many architects of racial preferences at law schools to be candid about how these preferences operated. It seemed to me that debate and discussion in the area were unduly circumscribed; hard questions about what we were doing were rarely asked within the academy--in part, admittedly, because of the desire to protect the delicate sense of community.

I therefore consider myself to be someone who favors race-conscious strategies in principle, if they can be pragmatically justified. Racial admissions preferences are arguably worth the...