Conservatives tend to dislike affirmative action and have therefore been more receptive to the empirical findings of Systemic Analysis. But I regularly hear one “free market” critique: No one is forcing black students to accept preferences. If they are worse off accepting preferences, why do they do so? Don’t their actions prove that, for them, preferences are on balance a good thing?
It’s an important point, but there are some pretty good answers. First, law schools and the legal education system don’t provide applicants or students with the information they need to make rational decisions. Schools don’t disclose the size of the preferences they use; they don’t identify (or provide data that would enable students to measure) grade gaps, graduation gaps, or bar passage gaps along racial lines. Indeed, many schools – perhaps most schools – actively misrepresent to their students the relationships between race, credentials, and outcomes. (Often they do this with the arguably benign motive of making everyone feel welcome.)
Of course, some information does get out. Blacks starting law school are often aware that blacks, in the aggregate, have lower bar passage rates. According to the Bar Passage Study (BPS), 39% of blacks starting law school in 1991 said they were “very concerned” about passing the bar, compared to 17% of whites. But blacks who expressed this concern were more likely to say that strong “academic reputation” was a key factor in their choice of law school.
Given the available information, these black responses are perfectly rational. These applicants are aware that black bar passage rates are lower; they are aware that elite schools have higher bar passage rates than non-elite schools. The logical strategy, then, is to maximize eliteness, which in their case means maximizing preferences and (I argue) maximizing the mismatch problem.