Posted by David Bernstein:
Ayres and Brooks on Affirmative Action in Law Schools:
[1]Over at Balkinization, Ian Ayres argues (and I agree) that Richard
Sanders' work on affirmative action in law schools has focused
attention on the wrong issue: the problem with the current system of
racial preferences is not that it leads to fewer black lawyers, but
that a large percentage of blacks admitted to law school--mostly
students who attended lower-ranked schools--will either never
graduate, or never pass the bar. Previously, I've cited the statistic
that 43% of entering black students fall into one of these categories,
compared with less than 20% of white students. Ayres and his colleague
Rick Brooks, in a [2]forthcoming Stanford Law Review piece, come up
with this complementary statistic:
On the first day of law school, we estimate that 42.6% of blacks
entering law school had less than a 50% chance of becoming lawyers.
(while virtually no whites students -- .23% -- were in this high
risk category). These at-risk students predominantly attend low
ranking law school [Bernstein: which means at low-ranked schools,
the statistic is well above 42.6 percent]. While Sander�s lobbies
for a world where without affirmative action where the top ranking
law schools would become largely all-white, we consider a world
where some of the African-American students attending lower ranking
law schools would choose not to attend if they knew the real risks
involved.
The problem is not that black students at elite law schools are being
harmed by an affirmative action "mismatch," as Sanders would have it,
but that while the overwhelming majority of black students at elite
schools succeed, most black students admitted at the bottom two-thirds
of American law schools will never become lawyers.
While the ABA and AALS congratulate themselves based on increasing the
numbers of black lawyers, they neglect the carnage caused to people's
lives who enter law school with a good-faith belief that the law
school they are attending thinks they will succeed, while in fact
admissions officers and administration know that it is likely they
will never become lawyers. Anywhere from one semester to three-plus
years of these students' lives are wasted in a futile effort to become
attorneys, while they could have been succeeding in some other field.
The ABA won't accredit a law school that doesn't ADMIT what they
consider to be enough black law students, but doesn't seem to mind
that at many of these schools, most of the black students admitted
won't become lawyers. It's a fraud, a travesty, and something that
makes me very angry. If I were a class action attorney, I'd organize a
group of former black law students admitted under these false
pretenses together and find a way of suing their law schools, the ABA,
and the AALS for fraud or some other legal cause of action (how about,
as an anonymous colleague suggested, a qui tam action for taking
student loan money in a racket no more successful from a student point
of view than fly-by-night hair colleges?) At the very least, law
schools should inform admittees--whether admitted for reasons of race,
alumni relations, or political reasons--with very low scores about the
statistical odds that they will become lawyers.
On another note, I'd also do away with the requirement that practicing
law requires passing the bar exam, which currently serves as a barrier
to entry to blacks and others; but as long as the bar exam exists, law
schools have an ethical duty not to admit students who they know are
likely to fail it. I understand that there is a strong correlation
between very low LSAT scores and bar failure. The ABA, of course,
would rather have good affirmative action "numbers," than actually do
something practical to make it easier to become an attorney.
References
1.
http://balkin.blogspot.com/2005/03/does-affirmative-action-reduce-number.html
2.
http://balkin.blogspot.com/2005/03/does-affirmative-action-reduce-number.html
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