Through a different lens: a reply to Stephan Thernstrom.

• Author: Wightman, Linda F.
• Position: Response to article by Stephan Thernstrom in this issue, p.11

In a continuation of the debate over the role of preferential admissions in higher education, Professor Stephan Thernstrom prepared an evaluation of my study The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions.(1) He purports to set forth three broad critiques of the study: (1) the analysis is "badly flawed," (2) key questions that could have and should have been asked never were asked, and (3) the evidence runs directly counter to the conclusions. I address his critique first generally and then more technically, to show that his conclusions represent neither the intent nor the substance of my study.

I.

First, my study examines the consequences of abandoning race as a factor in admission to law school and analyzes the success of minority students in their quest to enter the legal profession. My study presents to Professor Thernstrom a glass that is three-quarters full, but he criticizes it for not trumpeting that the glass is one-quarter empty. In his review, he mischaracterizes important aspects of the purpose, design, and conclusions of my study, and then criticizes the study based on those mischaracterizations.

Second, Professor Thernstrom utilizes provocative language to make a strong political statement as a response to my technical analyses. He decries "inferior academic qualification[]" of students who received "racial preferences in admissions" under affirmative action "double standards."(2) Yet, nowhere does he set forth what his criteria are for second-guessing the judgments of many law schools' own academic standards. In referring to the students for whom race was a factor in their admission as having had "intellectual handicaps,"(3) Professor Thernstrom incorrectly implies that I have claimed that their "initial handicaps apparently vanished."(4) On the one hand, he never supports his assertion that students were "handicapped"; while on the other hand, he discounts the value-added efforts the students and law schools performed that may have compensated for the students' earlier under-preparation.

Third, Professor Thernstrom introduces an implicit "divide and conquer" strategy to his agenda by suggesting that the elite law schools gave a greater boost to blacks than to other minority groups.(5) Continuing with that line of attack, he asserts that "African American applicants to law school receive much heavier preferences than members of any other racial or ethnic minority."(6) He further contends that preferences were stronger in the "top three tiers" than "down in the very unselective and undistinguished fifth-tier law schools."(7) My study did not make those kinds of judgments about law schools and it is not obvious what policy objective would make such statements relevant.

Fourth, Professor Thernstrom presents a global indictment of the ability of law schools and states conducting bar examinations to do their jobs when he denounces both law school graduation rates and bar examination passage rates as "indefensibly crude dichotomous measures of achievement."(8) He says that since most law students graduate, one could not expect law school graduation "to be a strong discriminator."(9) What he apparently fails to understand is that law schools are in the business of training lawyers and legal scholars, not simply in the business of ranking the law students they admit.(10) Moreover, Professor Thernstrom's arguments fail to acknowledge that so long as letter or number grades are assigned to law students, regardless of their academic preparation prior to law school one fourth of the successful students would still graduate in the bottom quartile of their class. His discussion does not reveal whether he would similarly discount graduation as a measure of qualification if only white students were in the graduating class. When the issue is whether students admitted to law school were qualified to enter law school, a measure that examines whether they completed law school cannot be so easily dismissed as a "methodological flaw." Similarly, no amount of criticism or reanalysis can discount passing the bar exam as a measure of one's qualification to enter the legal profession.

Finally, and most importantly, Professor Thernstrom's critique is virtually devoid of any apparent concern about the consequences his perspective would portend for our nation, for the legal profession, or for the depth and quality of law students' educational experiences. He purports to express concern for the one quarter of the black students who were admitted to law school but who, for a variety of reasons, did not succeed in entering the profession. He shows no apparent concern about the three-quarters of those students who would never have had an opportunity to go to law school under the perspective he presents but who, nevertheless, with the benefit of affirmative action, are now members of the legal profession.

2. WHAT IS AT THE CORE OF DIFFERENT VIEWS OF THE SAME DATA?

Although not immediately apparent from the language and style of Professor Thernstrom's evaluation of my study, his disagreements with it turn more on its implications than on the study itself. He criticizes the models, but concedes that their predictions of the impact of eliminating race as a factor in law school admissions are likely correct.(11) He criticizes the use and interpretation of law school graduation and bar examination data, but concedes that "just about every student passed the bar eventually."(12) In contrast, he devotes considerable attention to emphasizing the differences between black and white law student data, regardless of the predicted admission decision for those students, and criticizes my analyses for not doing the same. It is here that he and I part ways and view the purpose and value of diversity in education through very different lenses. The consequences of adopting an admission model such as the one he suggests, with...