The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander\u27s Study

Abstract

In 1970, there were about 4000 African American lawyers in the United States. 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 the beneficiaries of affirmative action in their admission to law school. American law schools and the American bar can justly take pride in the achievements of affirmative action: the training of tens of thousands of African American (as well as Latino, Asian American, and Native American) practitioners, community leaders, judges, and law professors; the integration of the American bar; the services that minority attorneys have provided to minority individuals and organizations once poorly serviced by white lawyers; and the educational benefits that law students of all backgrounds derive from studying in a racially diverse environment. But not every student admitted through affirmative action realizes his or her ambition to practice law. Of the African American students who entered law school in the fall of 1991, the one year for which we have good data, about 43% either did not graduate or graduated but had not passed a bar exam within two years of graduation. Only 17% of the white students in the 1991 cohort suffered either of these fates. In A Systemic Analysis of Affirmative Action in American Law Schools (Systemic Analysis), Professor Richard Sander argues that if affirmative action were eliminated in law school admissions, the rate at which African American students fail to graduate and pass the bar would be reduced substantially without any concomitant loss in the numbers of African Americans joining the bar. He acknowledges that fewer African American students would be admitted to law school, but predicts that those who were admitted would graduate and pass the bar at much higher rates because they would no longer be attending schools where the competition was too stiff for them. Sander builds to an astonishing forecast: that the number of black lawyers produced by American law schools each year and subsequently passing the bar would probably increase if those schools collectively stopped using racial preferences. In particular, he predicts that the cohort entering law school in 2001 would have produced 7.9% more new black lawyers entering the bar.5 We agree with Sander that the high rate at which African American students fail to graduate and fail to pass the bar is alarming.6 Indeed, we take the problem so seriously that despite the high value we place on racial diversity within law schools, the four of us would not support affirmative action as currently practiced in law school admissions if we believed that employing race-neutral admissions criteria would in fact lead to a net increase in the number of African Americans passing the bar.7 We find, however, that while Sander has appropriately forced us and others to take a hard look at the actual workings of affirmative action, he has significantly overestimated the costs of affirmative action and failed to demonstrate benefits from ending it. The conclusions in Systemic Analysis rest on a series of statistical errors, oversights, and implausible assumptions. It is these empirical shortcomings that we address in this Response