In defending his Stanford Law Review article, Richard Sanders has more than once said that “It takes a theory to beat a theory,” or words to that effect. The implication is that he has offered the only theory, what he calls the “mismatch theory,” to explain the performance of black students in the Bar Passage Study Data and that his theory should stand (with the further claim that policy should be based on it) until a better one comes along. I don’t accept Professor Sander’s claim about what makes for accepted theory, even if he is quoting eminent scientists, for the lack of competition does not argue for accepting a theory poorly supported by data. The well known “theory” that the earth is held in place because it rests on the back of a giant turtle should, for example, be rejected even if no other explanation for the earth’s not falling through the firmament is advanced, simply because there is no evidence apart from assertion and the fact that the earth seems stable in space to support the theory. Nor did it take a better theory to debunk the Utah group'sclaim of having generated cold fusion; all it took was numerous failures to replicate their results. Still it is fair of Professor Sander and others to ask what does explain the relatively poor performance of black law students as revealed by the data collected in the Bar Passage Study, and what might be done about it. These are questions that were posed to Professor Sander and me in June of 2006, when we appeared jointly before the United States Commission on Civil Rights. Below is the answer (slightly edited, with footnotes omitted) that I gave in my written testimony to the USCCR. (Entire testimony available on request to rlempert@umich.edu.
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The final issue that the Commission wanted addressed is the cause of the relatively poor graduation and bar passage performance of black law students, at least as revealed by the BPS data for the class entering law school in 1991, and the cure. There are certain things that can be said, and much we do not know. Before turning to this issue, however, we should note that this focus on failures and problems is the “half empty” perspective. In 1970 there were 4000 black attorneys; today there are more than 40,000. The great majority of the 40,000 have attended schools that were once nearly all white, and most were beneficiaries of affirmative action in their admission to law school. Black attorneys who went to predominantly white law schools are partners at major largely white law firms; they have founded their own mixed and predominantly black law firms; they sit on many federal and state benches, including the United States Supreme Court; they work at all government agencies, often in leadership positions; they are general counsel and on the staff of general counsel at Fortune 500 companies; they are entrepreneurs who have started their own companies and become rich; they are in military JAG units; they have represented the poor and the downtrodden; they have successfully run for political office. Some of these people would not be lawyers today but for affirmative action; many more would not have been admitted to the law schools they attended without affirmative action. So looking at the big picture and valuing ethnic diversity within all reaches of the legal profession, affirmative action admissions must be regarded as a positive driver of professional change and a considerable success.
Focusing instead on individuals, affirmative action has enabled many blacks and other minorities to live far better lives and make more important social contributions than they otherwise could have aspired to. It is important to remember these facts when assessing the impact and value of affirmative admission to American law schools. But it is also important not to deny the data that show that a far greater proportion of blacks who start law school than whites, do not finish, and among the blacks who do finish, a higher proportion than whites never pass a bar exam. What are the causes, and what are the cures?
The cause, as our review of Sander’s work and the work of numerous scholars has now shown, is not to any important extent a mismatch between students and institutions. Indeed students “mismatched” in the nation’s most selective law schools, if anything, benefit from being at institutions that attract the nation’s most capable law students. The degree of mismatch should affect most black students’ rank in class, for other things being equal class rank is likely to be lower the stronger the students one is competing with. But it appears that except in relatively rare cases where a student flunks out when he would not have failed at a less selective institution, this effect of mismatch does not manifest itself in increased drop out rates or failures to pass the bar. What then explains the disparities between white and black outcomes?
The explanation must begin with the index score variables, and the fact that they do relate to performance in law school and on the bar. Black students score, on average, more poorly than white students on the LSAT and have lower UGPAs. These lower scores mean that they are predicted to do, on average, more poorly in law school than white students and, by extension, on the bar. Since the index variables have some validity, it is not surprising that their predictions are to some extent borne out. If these predictor variables were perfect predictors of eventual graduation and bar passage, we would have a simple cure for failures in law school. Only those students, white or minority, who were predicted to graduate and pass the bar would be admitted to law school, and with perfect predictors all who were admitted would become lawyers. But the predictors are far from perfect, even when predicting first year law school grades, which is the only prediction they have been validated for. Many students do better than they were predicted to do by the index variables and many do worse. Some students admitted through affirmative action programs outperform many whites who were admitted without benefit of affirmative action, while other affirmative action admittees flunk out or fail the bar, even though their index credentials suggested that their success was likely. Still other students, white and black, are predicted to have shaky prospects for success and do stumble along the way.
The index predictors do not determine the future performance of any student, black or white. At most they give some idea of the student’s risk of having serious difficulties in law school and beyond. It may be that at some level of risk, schools should refuse to admit law students because the odds are too heavily against their succeeding, or that students should recognize that they are probably not cut out for law school or the practice of law and shun a path that is likely to waste career development time and perhaps leave them with crushing debt loads. It may even be that in the 1991 admissions cohort numbers of black students, particularly in the nation’s least selective law schools, fell into this “too risky” range and should not have been admitted. But this is a hard call to make when it is the student who bears most of the risk and will pay most of the costs of a wrong decision, and when some black students with the highest predicted risks of failure nonetheless succeed. It is, of course, both relevant and true that when minority students are admitted whose prospects are shaky, some white students with greater promise for success are excluded, but the excluded white students will, for the most part, be those whites who themselves have relatively high risks of failure, and the numbers displaced will be small.
What the association between the differential success of black and white law students and average index score differences suggest is that, on average, black students come to law school with poorer academic preparation, test taking skills and/or other relevant skills than white students. The cure for this contributing cause of black-white disparities in law school graduation and bar passage must begin long before law school, perhaps as early as prenatal nutrition programs and the removal of lead paint from the walls of inner city housing, for what we see in lower black index scores is in some measure an accumulation of prior discrimination and deficits. The cure must include better educational opportunities from pre-school on up, and countering discrimination that may affect learning throughout an educational career. The problem cannot be fully solved and disparities made to entirely disappear only after students have entered law school.
But this does not mean that there is nothing that law schools, and colleges before them, can do to ameliorate earlier educational and skill deficits that some students, white, black and other, bring. In the case of blacks and other minorities, ameliorative actions include creating atmospheres free from discrimination and conducive to learning. Affirmative action may itself be part of the cure. In many schools affirmative action may be necessary to allow the assembly of what has been called a “critical mass;” that is, affirmative action is needed to have enough black students on a campus, in a school or attending particular classes to ensure that individuals do not feel singled out on account of their race; to counter stereotypes that mistakenly attribute similar views to all members of a particular minority group; to relieve the pressure a person can feel when she believes her entire race will be judged by her performance, and to allow the creation of a culturally comfortable subcommunity or other milieu. Other efforts may include special programs, smaller classes the creation of mentoring arrangements and the like. I am not an expert on these activities and their effects, but there are people who are experts on improving minority performance. They should be consulted.
An important reason why such a high proportion of the BPS black law school matriculants never passed the bar is that many never finished law school and so could never sit for a bar exam. In some cases these drop outs were people who after weeks, months or a year of legal education decided that law school was not for them. They are no more failures than white students who leave law school for similar reasons. These students may have paid a price, but they also learned a lesson, and perhaps they thought the price worth it. Other students may have left law school because they flunked out, but the BCS self-report data suggest that this was not a major cause of departures. Low grades may, however, have been an important factor leading students to feel either that law school is not for them or that their job prospects would not be enhanced enough by a law degree to make further investment in a legal education worth their while. Illness and family considerations are other reasons that students give for leaving law school without a degree. But the most common reasons that BPS students give for leaving law school are financial. Costs and income ultimately drive the decision. It is plausible to assume that black law students, far more often than whites, cannot get the support they need to pay for law school, or see themselves getting deeper into debt than a law school degree will be worth or face other financial demands that preclude pursuing their legal educations.
If the primary reason black students have for leaving law school is financial, the obvious answer is to invest more in student support. The increased cost of legal education and the failure to increase available support concomitantly hurts all law students from less than wealthy backgrounds, but the data indicate that it hurts proportionately more blacks than whites because on average blacks have considerably less family wealth that they or their parents can invest in legal education. As we saw from the Michigan data reported above, [which showed that Michigan’s black alumni were considerably more likely than its white alumni to have graduated with debt and the debts black graduated with were, on average, substantially larger than the debts that burdened whites] even a well-off school that has a capacity for gift scholarship support must insist that most of its students, white and black, finance a considerable portion of their educational costs through loans. This is a sensible investment for most students, given the salaries that many Michigan graduates can start at or aspire to, but at other schools, including schools with total costs that are not much less than Michigan’s, such an investment may be fraught with risk. Even if a student graduates and passes the bar, earnings prospects may not justify the borrowing needed to reach this stage, and it may take attending law school and learning more about the job market for lawyers for a student to realize this. Add the potential for labor market discrimination to this mix, and there is good reason why black students drop out of law school at far higher rates than whites. The best solution might be a system which continues to require students to borrow to pay law school tuition but which forgives portions of loans depending on the amount of post law school income graduates earn. Then the danger of not passing the bar after three years in law school, or not getting a decent job after passing the bar, or taking a while to build a practice, or being discriminated against in a job search will loom less large.
Students who drop out of law school incur substantial costs as we have pointed out, but arguably that is their own business. However, some might argue that they also impose costs on others because if they had not entered law school to later drop out, another student who would have stayed in school, graduated and passed the bar might have been admitted. This is true, and the cost to others should be recognized. However, it is a mistake to think that the bulk of such costs are imposed on others by affirmative action admittees. Even though whites are less likely than blacks to drop out of law school before graduating, there are so many more white students that most of these dropout spillover costs are attributable to white admits rather than to black affirmative action students. Thus Wightman reports that 372 black students in the BPS cohort who were apparently admitted through affirmative action and 32 black students admissible without benefit of affirmative action failed to graduate, but so did 2,180 white students.
A third reason why black students do worse than white students relates to discrimination and related experiences, such as performance decrements due to stereotype threat or a need to adjust to a culturally uncongenial setting. Some observers of classrooms and campuses as well as surveys of students suggest that, intentionally or not, black law students are, and/or feel they are, discriminated against or otherwise disadvantaged. Professor Barnes, using the BPS data, seeks to quantitatively assess discrimination, and finds that evidence of black performance detriments due to possible discrimination vary considerably with type of school. They are at a maximum among blacks attending midrange private schools where discrimination is arguably the explanation for why black students are 13.4% less likely to graduate than their white classmates after controlling for index credentials. Professor Clydesdale’s work also suggests that aspects of discrimination like a hostile classroom atmosphere may be part of the explanation for poor black law student performance. In addition, the well documented phenomena of stereotype threat can explain relatively poor black performance on index credentials, law school grades and bar performance, for all turn on the kind of high stakes testing on important matters that is known to trigger performance detriments through the stereotype threat process.
While it is plausible to suppose that dimensions of discrimination and the stress associated with them are responsible for some of the differences we see in black versus white performance, it is difficult if not impossible to determine the magnitude of their contribution. The cure is similarly hard to come by, for as recent research teaches discriminatory responses to race are deeply ingrained. Experiments with resumes indicate that just having a black sounding name makes being called for a job interview less likely. Job audits show that blacks are more seriously harmed than whites by criminal records. And extensive experimentation with the Implicit Association Test and other methodologies indicates a widespread cognitive tendency to link blacks more readily with negative concepts and whites with positive ones.
One
core task of the Commission is to promote the eradication of racial
discrimination, but there is no easy or obvious route to doing so. In
the law school and other educational contexts, all I can suggest is
affirmative steps to create a welcoming atmosphere for minorities, to
both respect separate minority communities and to create larger
inclusive cross-racial communities, to develop tasks that break down
stereotypes by requiring cross-racial cooperation and to secure
minority faculty and staff who can serve as positive role models for
students of all races. As noted above, affirmative action can be part
of the solution, for it is often necessary, in particular in
institutions as small as most law schools, to allow the assembly of a
critical mass of black or Hispanic students that will show sufficient
diversity to break down stereotypes and provide minority students with
a comfortable sense of belonging. At the same time affirmative action
can contribute to the problem because the perception that black
students can get to campus with minimal intellectual qualifications and
that they perform poorly in and after law school can feed
negative stereotyping and prejudice. Here I suggest is that we strive
to keep all the evidence in view, and not just the evidence that
Professor Sander and others would have the Commission attend to.
All the evidence includes the huge numbers of affirmative action admittees who have effectively navigated law school and the bar exam and established themselves successfully in careers they would not otherwise have. Information like that which we learned from our study of Michigan law school graduates; namely that almost all blacks who matriculated at the law school graduated and passed the bar, and that controlling for time since graduation and gender Michigan’s black alumni had earnings similar to its white alumni, were as satisfied with their careers and did more service, should be more widely disseminated to counter the negative stereotypes some hold of affirmative action’s beneficiaries.
Most
important perhaps is not to feed conflict between the races and fuel
resentment of blacks and other affirmative action admittees on campus
by suggesting that affirmative action is more costly to the interests
of whites and Asians than it in fact is. On this point, information
published by Wightman is telling and deserves far more notice than it
has received. First, in the 1990-9 1 admissions year 26% of white law
school applicants were, on the basis of their LSAT/UGPA index,
predicted to be admitted to law school and 26% were admitted. Thus
despite widespread affirmative action whites in aggregate did not
suffer. Second, using her logistic regression model and the combined
index, Wightman estimated that 2,748 black students were admitted to a
law school to which they applied whose admission would not have been
predicted based on their admissions index and the standard the school
ordinarily applied, while 4,392 whites who could have been expected to
have gained admission based on their credentials failed to get into law
school. However, 6,321 white applicants who were predicted denials were
also admitted to law school.
Had there not been this “affirmative action” for whites, taking such forms as preferences for alumni’s children, every white applicant who might have expected to be admitted to law school based on his or her credentials could have been admitted and there still would have been room to admit 1,929 white students whose credentials did not predict their admission. This residual is 70% of the number of blacks who arguably owed their admission to affirmative action, and the total number of “affirmative action” white admits is 230% of the number of black affirmative action admittees. Thus those white students who feel they should have been admitted to law school but were not, need only look to whites who enjoyed exceptional privileges to see why there was no room for them. They need not blame affirmative action. Law suits, reports and op ed columns that suggest that affirmative action is why many qualified whites cannot get into law schools of their choice only serve unnecessarily to fan racial tensions. The Commission should call attention to the widespread privileges many whites enjoy and help to calm these tensions.
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Returning to my blog comment, let me note by way of conclusion a key difference between the implications of a theory, like Professor Sanders’ theory, that sees the primary cause of the difficulties blacks enjoy in law school as rooted in mismatch and a theory like mine that posits lower entrance skill levels, greater financial difficulties and, to a lesser degree, problems of being black in America as the primary reasons why black students drop out of law school at higher rates than white law students and, if they graduate, fail the bar at higher rates than whites. The mismatch theory suggests that graduation and bar success rates will increase dramatically if black students attend law schools that are far less selective than those they now attend, and accepting its implications would strip the nation’s top 20 or so law schools of about three-quarters of their black law students. It also leads to improved black graduation and bar passage rates by denying admission to those black law school applicants with the lowest credentials, whose places are taken by students who cascade down. Indeed, in Professor Sander’s original study, denial of admission for this reason did much of the work. My competing offering suggests that most black students in the upper law school tiers have the skills and resources they need to graduate from these schools and pass the bar, and that among those who don’t succeed, some might have difficulty no matter what school they attended, while others are hampered more by financial needs or a the feeling of a hostile atmosphere than they are by a lack of talent or study skills. Denying these students the ability to attend the schools that now admit them and consigning them to schools of the lowest ranks, if there was space for them and they could afford it, would be unlikely to help these students in most instances and would harm considerably those students who attend more prestigious law schools, graduate and pass the bar. Among students now in lower tier law schools many have the aptitude and resources they need to succeed while many others do not. There is unfortunately no easy cure for the difficulties black students face, and to the extent the situation can be improved, it will not be from abolishing affirmative action.
My explanation does suggest one way that black law student graduation and bar passage rates might be increased dramatically. This
is simply to deny admission to those black law school applicants whose
index credentials place them in the bottom ranks - say the lowest third
- of all admitted black law students. But if a “solution” ever amounted to throwing the baby out with the bath water, this is it. For many black law students with credentials in this range do succeed and go on to become attorneys. The
difficulty is that nothing we know now allows us to sort out the
students in this group who will succeed from those who will not. To
tighten up the admissions credentials required of black law students
would thus not only limit diversity in many law schools but would also
reduce considerably the number of black attorneys our law schools are
turning out. Better strategies are to be more
generous with financial aid where debts or lack of funds foster drop
outs, to create friendly, racially diverse environments in our nation’s
law schools, to learn how to nullify stereotype threat and real or
perceive hostile environments and to conduct research aimed at
improving legal education for minorities and at understanding why some
students with very low index credentials succeed when others with the
same credentials fail. Ultimately, however, law
schools are unlikely to be able to do more than ameliorate a situation
whose roots lie in other institutions. Only
widespread investment in the health and education of minority
communities, from the prenatal stage through high school and college,
is likely to yield a cohort of minority law school applicants that will
make affirmative action unnecessary to diversity in law schools and
beyond. Affirmative action is a stopgap until
such time that our nation is willing to make such investments, a time
that unfortunately may never come. Stopgaps are
never fully satisfactory, but affirmative action admissions is one that
has paid important dividends. It has allowed more diverse law schools,
affected courses, scholarship and teaching, and, in a small way, made
for a fairer, more equal society.
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