Richard Sander on Affirmative Action in Law Schools.Pdf
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A SYSTEMIC ANALYSIS OF AFFIRMATIVE ACTION IN AMERICAN LAW SCHOOLS Richard H. Sander* INTRODUCTION...................................................................................................... 368 I. A NOTE ON ORIGINS .......................................................................................... 374 II. DEFINING THE ROLE OF RACE IN LAW SCHOOL ADMISSIONS ........................... 390 III. THE CASCADE EFFECT OF RACIAL PREFERENCES ........................................... 410 IV. AN ASIDE ON THE VALUE OF ACADEMIC INDICES........................................... 418 V. EFFECTS OF AFFIRMATIVE ACTION ON ACADEMIC PERFORMANCE IN LAW SCHOOL................................................................................................................. 425 VI. EFFECTS OF AFFIRMATIVE ACTION ON PASSING THE BAR .............................. 442 VII. THE JOB MARKET .......................................................................................... 454 VIII. THE EFFECTS OF DROPPING OR MODIFYING RACIAL PREFERENCES............. 468 CONCLUSION......................................................................................................... 478 * Professor of Law, UCLA; Ph.D., Economics, Northwestern University. I owe special thanks to two people who have effectively been collaborators on this project. Patrick Anderson has been my research associate throughout the conceiving and writing of this Article, worked full-time on this project for several months, and will be my coauthor of a forthcoming book on affirmative action. Dr. Robert Sockloskie managed the databases and collaborated on the statistical analyses presented herein. I have received exceptional support from the UCLA School of Law and its Dean’s Fund. The Empirical Research Group and its associate director, Joe Doherty, have provided ongoing research support and outstanding technical assistance. The “After the JD” study, which I have helped steer for the past five years and on which I draw in Part VII, received support from the American Bar Foundation, the National Association of Law Placement, the National Science Foundation, the Soros Fund, the Law School Admission Council (LSAC), and the National Conference of Bar Examiners. The LSAC also supported earlier empirical research of mine that I draw upon in this Article. I received very helpful, detailed comments on early drafts from Alison Anderson, Bernard Black, Evan Caminker, David Chambers, Roger Clegg, William Henderson, Richard Kahlenberg, Lewis Kornhauser, James Lindgren, Robert Nelson, James Sterba, Stephan Thernstrom, Jon Varat, Eugene Volokh, David Wilkins, and Doug Williams. I also benefited from comments at symposia at the UCLA School of Law, the Rand Institute for Civil Justice, and the 2004 annual meeting of the Law & Society Association, where I presented earlier versions of this Article. Editors and staff at the Stanford Law Review provided exceptional substantive feedback and editorial support. My wife, Fiona Harrison, provided indispensable intellectual and emotional sustenance throughout this effort, and fundamentally reshaped the Introduction and Part II. I, alas, retain full responsibility for any errors that remain. My deep thanks to all who helped make this work possible. 367 368 STANFORD LAW REVIEW [Vol. 57:367 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, entrée 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 1. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (plurality opinion). 2.WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS (1998); Richard O. Lempert et al., Michigan’s Minority Graduates in Practice: The River Runs Through Law School, 25 LAW & SOC. INQUIRY 395 (2000). Bowen and Bok do, briefly, consider the question of how students would fare without affirmative action, but their analysis is so superficial as to provide little helpful insight on this question; subsequent work has thrown even their modest conclusions into question. November 2004] SYSTEMIC ANALYSIS 369 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. 3. There are exceptions. California still allows prospective lawyers to learn the law in a law office