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24 September 2006


Rick Sander

Lempert says he has offered a theory to explain lower black outcomes. But my point is that no one's advanced a theory which attempts to explain the available data. Let's see why Lempert's theory fails that test.
Lempert first says that affirmative action bears some responsibility for the black-white bar passage gap, because it leads to the admission (into legal education as a whole) of low-credential blacks who wouldn’t be law students at all but for their race. In other words, the credentials gap accounts for part of the black-white graduation and bar passage gap. This is true, but it misses the point – Systemic Analysis shows that about half the bar passage gap is due to the differences in credentials. The issue is, what accounts for the other half?
Lempert suggests two possibilities: financial hardship among blacks, and black underperformance in the classroom. Both of these are contradicted by a wealth of data. If income or financial need were strongly correlated with race and a powerful predictor of either graduation or bar passage, then the race coefficients in Tables 5.6 (predicting graduation) and 6.1 (predicting bar passage) in Systemic Analysis would be negative and significant. They are not. Blacks in law school are generally from affluent, upper-middle-class families. At a given level of family SES, black law students usually receive substantially more grant assistance from law schools than do whites. Likewise, the “underperformance” arguments – that blacks get lower grades because of professor hostility, institutional racism, stereotype threat, etc., etc. – simply don’t wash. Black underperformance in law school has been shown by many studies to be somewhere between small and non-existent. It is not anywhere near enough to account for the dramatic differences in performance that amplify the black-white graduation and bar passage gaps. Lempert’s “theory” is a non-starter.

Rick Lempert

Sander says that no critic of the mismatch theory has offered a coherent alternative theory. First, the failure to be able to explain a complex result does not make a flawed explanation sounder. Second, I have offered my explanation for the BPS and other data in testimony to the United States Civil Rights Commission in a joint presentation with Professor Sander and I sent him a written copy of my testimony. I will be happy to send it to anyone upon request or to post it on this web site if the custodians would like that.

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