House of Cards for Black Law Students

Richard H. Sander is a professor of law at UCLA. His article on this subject is forthcoming in the Stanford Law Review.

Traditionally, critics of affirmative action have focused either on its unfairness to those groups that don’t receive preferences (usually whites and Asians) or on the inherent conflict between racial preferences and the legal ideal of colorblindness.

Over the last few years, however, a new and potentially even more damaging line of inquiry has emerged: the idea that racial preferences may materially harm the very people they are intended to benefit.

For instance, researchers Stephen Cole and Elinor Barber found that racial preferences at Ivy League colleges had a large and negative effect on the academic aspirations of black students.

The mechanism worked like this: Blacks admitted to elite schools with large preferences had more trouble competing with their classmates, and tended to get lower grades. Low grades, in turn, sapped the confidence of students, persuading them that they would not be able to compete effectively in PhD programs. As a result, blacks at Ivy League schools were only half as likely as blacks at state universities to stick with plans for an academic career.


Dartmouth psychologist Rogers Elliot and three co- authors found that the same problem was keeping blacks out of the sciences.

Black students who received preferential admissions were at such a strong academic disadvantage compared with their classmates that fully half of those interested in the sciences tended to switch to majors with easier grading and less competition. Again, the net effect of preferential policies was to “mismatch” blacks with their academic environments.

My research over the last two years, using recent data that track more than 30,000 law students and lawyers, has documented even more serious and pervasive mismatch effects in legal education.

Elite law schools offer very substantial racial preferences for blacks, Latinos and American Indians in order to create student bodies that are as racially diverse as their applicant pools. Because these elite schools admit the black students that second-tier law schools would normally admit, second-tier schools, to keep up their minority numbers, also offer big racial preferences. The result is a cascade effect down the law school hierarchy, leaving 80% to 90% of black students at significantly more selective schools than they would get into strictly on their academic credentials.


Most legal educators have traditionally assumed that this helps blacks by giving them a more elite degree, better connections and maybe even a better education.

But in fact, my data show, about half of black law students end up in the bottom tenth of their classes. Very low grades lead to much higher attrition (blacks are 2 1/2 times more likely to drop out of law school than whites) and to more trouble on the bar exam (blacks are six times as likely as whites taking the bar to never pass).

The other traditional justification for racial preferences by law schools was that they would increase the number of black lawyers. But over the years the pool of black applicants has become much larger and much more qualified. More than 85% of blacks admitted to law schools today would still get into some law school if preferences disappeared -- albeit generally a lower-prestige school.

The modest pool-expanding effects of law school preferences may well be more than canceled out now by the greater attrition caused by the mismatch effect. My research suggests that in a race-blind system, the proportion of black law students graduating and passing the bar on their first attempt would rise from 45% to at least 65%, and the number of new, certified black lawyers each year would rise about 7%.


Obviously, it’s difficult to predict how applicants would weigh the pluses and minuses of a race-neutral system; the point is that the attrition effects of the current system are so devastating that they threaten all its intended benefits.

All of this doesn’t prove, by any means, that affirmative action is harmful in every form.

Some recent research by Princeton sociologist Marta Tienda found, for example, that although minority preferences at elite undergraduate colleges had a harmful effect on grades, these effects were more than offset by the success of those schools in helping students graduate. Improving academic support programs in law schools would certainly help narrow black-white grade gaps up to a point. And my research suggests that shrinking law school racial preferences by half -- that is, moving the standards for blacks and minorities closer to the standards for whites and Asians -- would reduce by three-quarters the attrition effects I document.

The affirmative action debate has generally been characterized by two camps that resolutely see the other side as hopelessly misguided or even evil. Social scientists entering the fray have tended to become partisan spokespersons for one side or the other. The emergence of careful, credible research on the mismatch effect may lead us to a more measured debate on when preferences produce clear net benefits and about how quickly we can move toward what everyone agrees is the ultimate goal: colorblind admissions.