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.
Law schools could provide applicants with the average long-term outcomes of other students at that school who share the applicant’s credentials (this could be done for all students, and need not mention race at all). Instead, schools try to convince every applicant that their law school is a perfect match – a place where the applicant will readily thrive. The applicants buy it. Matriculants of every race have a record of academic success behind them, and they have little doubt that they will succeed in law school. Consider the following data from the BPS on the performance expectations of entering students:
Table 1: Predictions of first-year class rank in law school by prospective students at all law schools, BPS, 1991
|Class rank (percentile range)||Proportion of entering students predeicting specified rank|
|Top 5% (95-100)||8%||12%||8%|
|Next 5% (90-94)||25%||27%||24%|
|Next 15% (75-89)||45%||38%||42%|
|Next 25% (50-74)||21%||23%||26%|
|Next 25% (25-49)||1%||1%||1%|
|Next 25% (0-24)||0%||0%||0%|
New students at law school (of all races) have very high – irrationally high – expectations of how well they will perform. Black expectations are the highest of all (and the difference with whites is statistically significant). This might be because blacks tend to be the most assiduously courted of all students; one can demonstrate that blacks receive far more in non-need-based scholarship money than students of other races. In any case, the larger point is this: it is hard for individual students to worry about a mismatch effect if they believe they will academically excel at their future law school.
Of course, one could argue that the debate about “Systemic Analysis” has put a lot more information into the public realm and will help blacks make better choices. But I imagine that to the extent minority applicants considering law school have heard about the debate at all, they’ve only heard about a heated controversy and some bad statistics about black outcomes. That might simply lead to fewer black applications. In 2005, black applications to law school fell by something like 10% -- the steepest drop in many years. That’s an outcome none of us want. (Note that with fewer black applicants, elite schools need to use larger preferences to meet their racial targets, worsening the mismatch.)
So market forces might help reduce the mismatch if and only if we can get better information to black applicants about their prospects at individual law schools. One of my students at UCLA, Matthew Butterick, has written a paper persuasively arguing that schools in many states have a legal duty to make such disclosures. The moral duty, of course, is even stronger and clearer.
Some may argue that notifying a student of his relatively low chances at a school will undermine his confidence. It’s important to keep in mind that getting miserable grades at law school, running up huge debts, and then not passing the bar is likely to undermine confidence a whole lot more.