Affirmative Action (In Law Schools) – A Cost/Benefit Analysis

1. Affirmative Action (In Law Schools) – A Cost/Benefit Analysis William Levine

2. Richard SanderMismatch Hypothesis • Academic Mismatch Explained: • Racial preferences cause black students to be at an academic disadvantage in law school. According to Sander, this leads to: • Lower law school grades • Higher attrition rates • Lower Bar passage rates • Decreased future earnings

3. Bar Passage Study (LSAC-BPS) • Conducted between 1991 and 1997. • LSAC secured cooperation of 95% of Law Schools • Able to track 27,000 law students from entry to taking of the bar exam. • Study collected wide range of data. Relevant to our purposes are, law school performance, bar passage, LSAT score and undergraduate GPA. • Sander creates an “Academic Index” to measure applicant strength (60% LSAT/ 40% Grades). Measure based on 1000 point scale. • He only compares white students and black students, otherwise too complicated.

4. What the Study Shows • Large differences between qualifications of blacks and whites. Difference pretty consistent regardless of law school tier. • (Median) Top Tier difference: 875(w) vs. 705(b) • (Median) Lowest Tier difference: 665(w) vs. 493(b)

5. “Cascade Effect” • Data shows that decision by most elite schools to use racially discriminatory policies creates an effect whereby lower tiers must follow suit. • This cascade effect means that blacks at each law school tier level are at a significant academic disadvantage to their white counterparts.

6. Effects of Affirmative Action on Academic Performance in Law School • In creating the large gaps in entering credentials outlined before, law schools are condemning black students to a poor academic fate. The LSAC study shows that: • At Tier 1 Law schools 52% of black students finish in the lowest decile of the class in terms of first year grades. This figure is pretty consistent throughout the tiers. • Based on a regression analysis, Sander demonstrates that LSAT and undergraduate grades have the highest correlation with predicting first year grades. • Race, on the other hand, when controlled for academic credentials has no statistically significant impact on performance • Because race has no direct relationship with performance, Sander concludes that the poor academic performance of black students has nothing to do with them being black, but rather has everything to do with them being accepted into academic environments for which they are not qualified.

7. Effects of Affirmative Action on Matriculation/Bar Passage Rates • Black law school students are significantly less likely to matriculate within five years than white students. • 19.2% of black students failed to matriculate within five years compared with 8.2% of white students. • Again using a regression analysis, Sander shows that first year GPA is very highly correlated to matriculation rates. First year GPA is a much better predictor than the caliber of law school one attends. • Similarly, black law school students are less likely to pass the bar on their first attempt (61%) than all students (88%). • Once again, first year gpa is by far the best predictor of whether a student will pass the bar. Law school tier is much worse at predicting.

8. “After the JD” (AJD) • Study by Sander and others to tracks what happens to 4000 law school graduates in terms of their job salaries for the first 10 years after law school. • Study not complete, but first data points from early 2003 indicate the following: • Of those who went to private firms (65%), Law School GPA is a better guarantor of first year salary success than going to a Tier 1 or Tier 2 school.

9. Costs of Affirmative Action to Black Students • “Academic Mismatch” - Black students, on the whole, are at a substantial academic disadvantage in the schools they attend. This leads to them performing more poorly than they would at law schools for which they would be more suited academically. • This poor academic performance creates substantially higher attrition rates • It seems to hamper blackbar passage rates which are substantially lower than white rates • It hurts black on the job market because grades are the best predictor of future wage earning.

10. What if no Af-Am? • Recent study by Linda Wightman (2003), using a grid analysis of LSAC data, shows that overall black attendance at law schools would drop by 14% if racial preferences were eliminated. • Integrating this study with his own data, Sander estimates that black graduates passing the bar (in 2001) would rise from 1981 to 2150. Thus by Sander’s estimates, the number of black lawyers would rise if affirmative action is eliminated. The overall rate of blacks graduating from law school and passing the bar on the first attempt would rise from the 45% measured by the LSAC study to roughly 67%.

11. Criticism (1) of SanderIan Ayres & Richard Brooks • Using the same data (LSAC study) as Sander, Ayres and Brooks come to a wildly different conclusion. • “White median tier analysis” - Their main way of looking at the data, is to study the grade and bar passage rates of black students who attend law schools commensurate with their academic index. Since Sander claims such students should not be hampered • They also criticize Sander’s conclusions as being too grand for the data he is looking at. For instance, he slavishly relies on the academic index while not looking into other factors which might determine student performance like family life, etc…

12. White Median Tier AnalysisAyres and Brooks • Sander found that the elimination of affirmative action would lead to a 7.9% rise in the number of black attorneys. • Using the WMTA, Ayres and Brooks dispute this and claim that in the absence of racial preferences, black attorneys would decrease by 12.7%. • Ayres and Brooks found that, as opposed to suffering from the “Academic Mismatch” theory espoused by Sander, black students were actually pulled up attending more elite schools and do better at those schools than they might at schools more commensurate with their LSAT and undergraduate GPAs. • Whereas Sander explains the poor performance of black students on “Academic Mismatch” theory, Ayres and Brooks attribute it to the “Stereotype Threat” whereby black students are harmed by low expectations.

13. Criticism (II) of SanderDavid Wilkins • “Affirmative action has played a crucial role in helping black lawyers to overcome the systematic and persistent obstacles that continue to make it more difficult for these new entrants to succeed…” • His main issue with Sander concerns the “After the JD” study. Wilkins claims that Sander’s conclusions are not based on enough data and that they are fundamentally incorrect.

14. Importance of Black EliteDavid Wilkins • Wilkins claims that the establishment of a black elite is important because it will: • Lead to more black participation in hiring committees • Black general counsels will do more to see that black run firms, or minority friendly firms get their business.

15. Network EffectWilkins • Wilkins claims that Sander completely overlooks the “Network Effect” of going to a good law school. To prove this point he cites a speech by a black graduate of Harvard Law School who claims he did terribly in law school, but leveraged the connections made there for great benefit. • Claims this networking is even more important for blacks than whites since blacks are “less likely to have absorbed the ways of eliteness at home…” • Cites ABA directory of minority partners to show that 77% of black partners in majority-corporate firms were graduates of elite universities, a higher percentage than white graduates.

16. Criticism (III) of SanderDavid Chambers • Claims that elimination of racial preferences will lead to between 30 and 40% decline in # of black lawyers. • Suggests that Sander errs in using data solely from 2001 for making his claims about the effect eliminating preferences on black acceptance to law school. 1) More years should be used &; 2)2001 had far fewer black applicants than 2004 (72,000 vs. 101,000). • Says Sander also errs in assuming that black students in the absence of racial preferences would simply apply and matriculate in similar numbers. Sander does not take into account the effect that the elimination of affirmative action might have on decisions about whether to apply or go to school. In support of this claim he cites figures showing that 52% of black applicants to law school claimed they had considered applying to other graduate schools in prior years.

17. Conclusions • More research is needed to determine whether Sander is correct. • Argument here is not over whether using race is or should be Constitutionally permitted, but rather, whether it actually benefits black people. • My own thought is that if it is so unclear whether affirmative action even helps blacks then there is certainly no justification for abrogating the strong Constitutional aversion to using racially discriminatory policies.

18. Sander on Affirmative Action at Elite Law Firms • Similar to his thesis on Law Schools • Claims that aggressive use of preferences by law firms is ultimately counterproductive in that it undermines the careers of black attorneys and contributes to continuing white dominance at law firms.

19. Studies Used • Bar Passage Study (BPS) • After the JD (AJD) • Directory of Legal Employers (DLE) • Public Use Microdata Sample (PUMS) • University of Michigan Alumni Survey (UMLS)

20. Preferences in Hiring How we know they exist • Sander notes that black students make up roughly 8% of all law students, 1% to 2% of students with high grades and 8% of law firm hirings. Thus based on intuition, racial preferences exist. • Sander also cites his AJD study questionnaire of minority associates in which 56% of them claimed that their race or ethnicity was relatively important in leading to their job offer.

21. Why Grades are an Important Indicator of Projected Law School Performance • Sander used the Michigan Alumni Surveys to show that, for whites, those remaining at elite firms 15 years out had a higher mean grade percentile than those around after only 5 years (72nd vs. 66th). • A regression analysis of the Michigan data showed that standardized GPA was, by a wide margin, the best predictor of future income. • In this regression analysis, race, when controlled for academic performance, was practically meaningless.

22. Inside the Law Firm • Sander looked at data from his AJD study. • Races equal when asked about their “satisfaction with decision to become a lawyer.” • Large disparity among first year lawyers in big firms when asked how long attorneys “would like” to stay with current employer: • Black Lawyers – 40% already looking for new position • White Lawyers – 20% already looking for new position

23. Why are black attorneys at elite firms less happy with their jobs? • AJD Study – Associates asked what changes they would like to see in their jobs: • Fewer Hours: B 51% / W 43% • Less Pressure to bill: B 65% / W 44% • Better Mentoring: B 70% / W 51% • Greater Opportunity to Shape Future of Firm: B 22% / W 26% • Associates’ Characterization of Job Assignments in past 6 Months: • Responsible for keeping Clients Updated: B 31% / W: 47% • Involved in Formulating Strategy: B 44% / W 67% • Spending 100+ Hours on Discovery/Due Dil. B 71% / W 29% • Associates Reporting Discrimination: • Demeaning Comments: B 24% / W 4% • Missing out on a Desirable Assignment: B 27% / W 5%

24. What is the Problem? • Sander: Higher attrition rates for black lawyers is the biggest problem. Five reasons for that: • 1) Discrimination • 2) Merit & Stereotype Discrimination • 3) Institutional Rigidity • 4) Individual Preferences

25. Conclusions (2) • Sander claims that data showing black associates given less meaningful work a sign of the fact that they are not properly qualified. • Also possible that it shows institutional, cultural racism still exists. • Harder to study law firms where hiring practices, decisions less transparent than law schools.