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Richard Sander, a law professor at UCLA, says yes. Sander chatted online with participants on Wednesday, Feb. 16, discussing his study, “A Systemic Analysis of Affirmative Action in American Law Schools.” Recently published in the Stanford Law Review, Sander’s study finds that affirmative action is causing black law students to get lower grades and pass the bar less often than their white peers. Sander’s study has been discussed in the pages of Legal Times (Dec. 6, 2004, Page 60) and more recently in The New York Times (Feb. 13, 2005, “Week in Review” section, page 3). To read a summary of the study or the full text, visit Sander’s Web site. STUDY SUMMARY (PROVIDED BY SANDER): There has been growing interest over the past decade in the question of whether large admission preferences can backfire for recipients by causing them to have severe academic problems, higher dropout rates, or discouragement and disengagement from school. Richard Sander’s article tests those theories for law students by using several new, large databases on American law schools. Sander finds that preferences do cause academic problems, regardless of the race of the recipient. For blacks, who receive the largest and most widespread preferences from law schools, Sander concludes that the preferences increase dropout rates by over 40 percent, and first-time failure rates on bar exams by 80 percent. He also finds that the job-market benefits of going to a more-elite school are outweighed (among new lawyers) by the lower grades that come with preferences. Sander argues that schools should provide more disclosure about long-term outcomes for applicants who receive preferences and suggests that it is time to reconsider how law schools use those preferences. WEB CHAT EXERPTS, QUESTIONS IN BOLD: What type of reaction has your article met from fellow professors? Do you think the academy is open to an honest debate about your data and conclusions? — Rob, attorney, Arlington, Va. Sander: I’ve received a couple of hundred e-mails from colleagues, most commonly sounding the theme of “keep up the good work.” I think there is a strong desire in the legal academy to get past the code of silence that has tended to govern higher education racial preferences for the past generation. On the other hand, many faculty are reluctant to be too visible on this issue. So it’ll be interesting to see how openly professors and faculty jump into the debate in the coming months. Could law schools improve the rates of minority students passing the bar by offering additional bar review classes or more closely tailoring academic classes to teach the substance and types of questions on bar exams? Would you regard such efforts as desirable, or would they distract or degrade traditional legal education? Sander: I think academic support is an important part of the equation. Kris Knaplund and I published a study in 1995 (Journal of Legal Education) comparing the effectiveness of seven different support programs used by UCLA over the years. We found two of these were quite effective in raising student grades, at least a modest amount. Some other programs had no effect at all. We didn’t find strong evidence that any of the programs improved bar performance. I take from that study these ideas: academic support is good, and law schools certainly have an obligation to try to help students admitted at a disadvantage to their peers. But (a) evaluate programs carefully to see if they do any good, and (b) don’t expect academic support to be anything close to a panacea. Justice O’Connor has suggested that in 25 years, affirmative action programs will have run their permitted course under the Constitution. Do you share her sense of timing? That is, do you expect programs of racial preferences to last for the next 25 years? Even longer? Or will they likely end before then? Sander: Racial preference programs are driven by (a) the test-score gap and (b) the general perception in higher education that something close to proportional admissions (by race) is a good way to address the test-score gap. So preferences will decline to the extent that (a) or (b) change. Among law school applicants, the test-score gap has fallen by about one-quarter of the past generation … if that progress continued in a straight line, the gap would disappear in 75 years. If arguments like mine become accepted, then the premise of (b) will be more widely questioned, and we may start limiting preferences sooner. I find, for example, that if top schools reduced their preferences for blacks by about 50 percent, about 80 percent of the “mismatch” effects I find would go away. So as a purely pragmatic matter, it may make sense for schools to start limiting preferences in the short term. “ Professor Sander, my concern is not that the numbers don’t add up, but that too many people are going to take your thesis and interpret “lack of academic credentials” to mean “lack of academic ability,” in the same manner that most of America interprets “the problem with urban America” to mean “the problem with black America.” In addition, I worry that your assertions that blacks would be better served by attending schools that are, um, “better suited” to them smells awfully like something a segregationist would appreciate. Could you please address these issues? — Thomas, University of Michigan Law ’03 Sander: Yes, I’ve been frustrated that many media reports on the article imply that I believe blacks “can’t compete” in law school. My data shows that the performance problem has nothing to do with race, and everything to do with preferences. That is to say, a white student who gets a large preference (because of alumni connections, for example) has the exact same problems in law school as a black student who gets a large preference. Conversely, blacks who pass up their “first choice” schools to go to a less elite school have graduation and bar passage rates very similar to (or better than) comparable whites. The problem is putting any student in an environment where all his or her classmates have far higher test scores or undergraduate credentials. Trying to reduce that problem certainly doesn’t mean segregating law schools in general and need not segregate any school in particular. Do your findings tend to let the elite law schools off the hook in all this? In other words, couldn’t it be said that if qualified minority students are doing significantly less well than whites at top law schools, is there perhaps something wrong with the curriculum or climate of these schools that needs fixing? — Tony, journalist, Washington, D.C. Sander: I’d make three points here. Blacks from elite schools tend to have pretty high graduation rates and bar passage rates simply because they are such strong students; the data suggests that even these students are significantly disadvantaged on the bar relative to how they would perform coming from a slightly less elite school. The elite schools should be particularly **on the hook** in all this, I’d say, because it is the large preferences given by those schools that push the other law schools to follow suit, causing large preferences to cascade all the way down the hierarchy. In other words, elite schools are generating a negative externality for black law students generally, and need to held accountable for it. Let me address the climate question in my next answer. There may well be things law schools can do to improve their climates for minority students (like better academic support). At the same time, keep in mind my earlier point that blacks and whtes with the same preferences experience the same problems in law school — which suggests that the problem is not climate, but the large credentials gap between these students and their classmates. Are test scores the only measure in your study? Isn’t there something to be said for diversity itself as an asset to any law school community? Sander: On the first question: I used a combination of LSAT and undergraduate grades to predict how students would do in law school. That predictor, which I call the academic index, is used to show that large preference gaps lead to a clustering of beneficiaries in the bottom of the law school grade distribution. In the rest of the study, I focus on the consequences of low law school grades, and the tradeoff between one’s grades and the prestige of one’s school in shaping graduation, bar passage, and employment outcomes. So, aside from one part of the study, the LSAT has little to do with my findings. On the diversity question, yes, absolutely, I think there’s a value in diversity. I see the value every day in my own teaching. I don’t think my paper addresses all the costs and benefits of affirmative action in law schools, just some of them. And we need to consider others. While we’re thinking about the benefits of diversity, however, we should be thinking about socioeconomic (SES) diversity as well as racial diversity. At many schools, students from all races come from pretty privileged backgrounds. SES diversity tends to be overlooked. (1) I happened to glance at one of your previous articles pertaining to the “happy charade” of the third year of law school in which you note that there are particular and unique challenges that women and minorities face in the law school environment. How does your empirical model control for those factors that account for these challenges? (2) My understanding is that your prediction is the following: African-American students admitted to higher ranked schools with LSAT scores lower than the prevailing school average will receive higher grades if they attended lower ranked institutions, and that accordingly, more of them would pass the bar exam upon graduation. Does this require that we assume that the material these students would absorb at lower ranked schools is substantively different than what they would be absorbing at higher ranked schools? Does the teaching at lower ranked schools differ substantively such that these students would pass the bar exam at higher rates than if they attended higher ranked schools? — Sacha Coupet, Loyola University Chicago, assistant professor of law Sander: On the “happy charade” question: Mitu Gulati and I found in that paper that some students become fairly disaffected in law school. This affects maybe one-sixth of all students, but more like a fifth or fourth of women and minority students. That’s an important problem, one that my law school partly addressed (very successfully) by instituting a well-supported public interest track, and making much of our public interest-oriented students. However, we did not find that any of this is a powerful influence on the things I’m talking about in the Stanford paper — that is, grades, graduation, and bar passage. On question (2), I don’t have any evidence on whether the curriculum or teaching styles vary across law schools, though of course there’s the common perception that lower-tier schools “teach to the bar” more. I suspect the difference is not what is taught but how it is taught. Survey evidence from large samples of students found that students of all races worked almost the exact same number of hours on their homework in the first year. But those admitted with large preferences were much less likely to feel prepared for class. So if you are a school with a big credentials gap between you and your classmates, you may find the pace much more difficult — especially in the law school environment, where the pace is close to overwhelming for all students. Would your model result in a greater responsibility on the part of employers to seek out qualified African-American students at “lesser” law schools, rather than their simply going to the campus of a more “elite” school to recruit? Could that result in a reduction of job opportunities for African-American law students? — Jim, Ohio State Law ’92 Sander: What I found is that employers are already doing this. Blacks with good GPAs from lower-tier schools are avidly sought by large law firms. Blacks who do well at Howard, for example, seem much more in a position to “write their ticket” than blacks with mediocre grades from significantly more elite schools. My model predicts that if we substantially reduced the mismatch effect, black starting salaries would rise about $10,000. What prompted you to do this study in the first place? Sander: It was clear to me as a young professor at UCLA that many of those we admitted with large preferences struggled academically. I’ve always been curious about how the “grades versus prestige” tradeoff worked out, but for years there wasn’t any good data available. When Bowen and Bok published “Shape of the River,” I thought I saw methodological problems that could be effectively addressed with better data … and in the past few years, good data has finally become available. Your recommendation that there should be greater transparency hinges upon the validity of your conclusions. Don’t you think that there should be substantially more than one person’s analysis before serious consideration is given to your recommendation? Secondly, I do not think you have adequately responded to the argument that disclosure would almost certainly shift the focus away from how well the law schools are meeting the needs of those who receive preferences. — Alan, consultant, Chevy Chase, Md. Sander: On transparency: What is the downside of greater transparency? Everyone who has looked at the data agrees that the black/white disparities are distrurbing and that they vary a lot across different tiers of law school. Why is it controversial that applicants to a law school know how similar students have fared in graduating, passing the bar and finding good jobs? And greater transparency would actually give positive attention to those schools that are doing a better job, with academic support and other means, of protecting their students from bad long-term outcomes. Law schools have drifted along with little or no accountability for a very long time. Do your conclusions apply to other minorities — Asians, Hispanics — or just to African-Americans? Sander: I haven’t yet studied Asians and Hispanics closely. My current research is suggesting that the mismatch effect operates in a so-called “curvilinear” fashion — which means that a 200-point preference is more than twice as harmful as a 100-point preference. If this is true, it suggests that current preferences for Hispanics (which are typically about half as large, in credential terms, as preferences for blacks) are significantly less problematic. Preferences for Asians, once widespread, are much less common now, and tend to focus on southeast Asians. Do you have hard data on law firm hiring trends? You said above that they’re already more often hiring African-Americans who graduate from lower-tier schools. Sander: Yes, the “After the JD” study project collected data on about 4,500 lawyers who graduated from law school in 1999 and 2000, and tracked them a few years out of school. The sample included a minority oversample. I think the data clearly shows a higher preference for blacks (blacks earn more when one controls for other characteristics), and also clearly shows that good grades help blacks get good jobs more consistently, and to a large degree, than the kind of prestige tradeoff typically involved in racial preferences.

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