More from Rick Sander About Black/White Disparities in Law Schools:

Rick Sander, guest-blogging at the excellent Empirical Legal Studies, has more on this subject. His analysis ties to his research on how race preferences may in many situations hurt their beneficiaries, by placing them in schools where they end up near the bottom of the class; but it goes considerably beyond that. Here's an excerpt from one post about the current racial mismatch in bar performance.

BPS [Bar Passage Study]
(1994 era)
2004 Era
(my estimates)
Whites Blacks Whites Blacks
% of entering law students
who graduate
92% 81% 90% 78%
% of graduates
who take the bar
94% 93% 94% 93%
% of bar takers
who pass on first attempt
91% 61% 78% 47%
% of bar takers
who ultimately pass
96.5% 78% 90% 65%
% of entering law students
who graduate and pass bar
on first attempt
78.7% 45.1% 66% 34%
% of entering law students
who ultimately become lawyers
82.7% 57.1% 76% 47%

Clearly, both whites and blacks are having worse outcomes today than in the BPS --- mostly because of the decline in bar passage rates. But what about relative outcomes? In one sense, blacks are doing relatively better; the absolute declines for blacks and whites on first-time bar passage are similar, so the ratio of black-to-white failure rates has fallen from around four to around three.

On the other hand, relative chances of success for blacks have fallen much more sharply than for whites. The proportion of blacks graduating and passing the bar on the first attempt has fallen something like one-fourth ((45.1-34)/45.1) and the proportion of the black cohort becoming lawyers has fallen something more than one-sixth ((57.1-47)/57.1); the comparable declines for whites are one-sixth and one-twelfth.

These are seat-of-the-pants estimates, based on limited available data. But they leave no doubt that the mere passage of time has not cured the problem of racial disparities in legal education. The need to understand the causes of those disparities is more urgent than ever.

For links to all of Rick's posts, see the last (seventh) in the series.

logicnazi (mail) (www):
It would be interesting to see numbers for socioeconomic upbringing as well.

Also I would love to see the ratio white and blacks passing the bar from a given college plotted against the degree of affirmitive action at that school.

Personally I think the problem is totally hopeless (unless it fixes itself) until people start being able to seriously consider all the possibilities. Even in very academic contexts merely raising the idea that affirmitive action or aggresive minority recruitment might not be helpful in the long run provokes a violently strong reaction. Now I suspect that in some circumstances affirmitive action and aggresive minority recruitment are going to be useful, say in getting minorities to take college prepatory courses or even getting into college. In others, however, such as law school it is unclear whether these programs merely waste resources fighting over the qualified minorities that would better be spent improving schools in poor areas.

Additionally we must be able to objectively consider the effect of culture. It is plausible that after many years of being denied success through academic achievment but recently being allowed to reach it through sports and similar activities their is less of a cultural value to academic achievment or even an aversion. If true we need to be able to say openly that it needs to be changed.

Given the fact that even in contexts that are otherwise extremely tolerant of unpopular ideas these ideas (which might be wrong) generate dogmatic rejection I'm kinda hopeless that we can ever get to the bottom of the problem much less fix it. Trying to figure out where/how much discrimination exists is equally problematic as any such examination must be ready to find there is no discrimination in some contexts not to mention settling on a useful definition of the word that doesn't just mean unequal results.
9.25.2006 5:12pm
I predict that the affirmative action powers that be will try to eliminate bar exams &anonymous grading.
9.25.2006 5:18pm
GMUSL 3L (mail):
"Because the Equal Protection Clause renders the color of one's skin constitutionally irrelevant to the Law School's mission, I refer to the Law School's interest as an "aesthetic." That is, the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them. I also use the term "aesthetic" because I believe it underlines the ineffectiveness of racially discriminatory admissions in actually helping those who are truly underprivileged." Thomas, dissenting in Grutter @ n.3.

That's definitely one of my favorite one-liners in any conlaw case we read.
9.25.2006 5:26pm
[in response to DummydaDhimmi]

...or they'll say that there's a "black answer" and a "white answer" to a law school exam question, that "the system" unfairly gives more points to the latter answer, and that the "systematic bias" can only be eliminated by giving all minority students extra points on their exams.

This brings to mind an article I read a while back:

It is a source of frustration to brilliant people to be unable to persuade their intellectual inferiors, and a natural reaction is to seek more time to persuade, knowing they can out-argue their duller colleagues.
What they may not realize is that reasoned argument is ineffectual when the arguers do not share common premises and — what turns out to be related — that people do not surrender their deepseated beliefs merely because they cannot match wits with the scoffers.

Richard A. Posner, A Political Court, Supreme Court Foreword--2004 Term, 119 Harv. L. Rev. 31, 73 (2005).

Which is not to say that Sander is "brilliant," and that those who disagree with him are idiots. The point is that most affirmative action proponents aren't interested in engaging counterarguments, only neutralizing them.
9.25.2006 5:38pm
Chris Bell (mail):

I too think that J. Thomas really hit it out of the park in Grutter. (In fact, Grutter is one of the only opinions where I think that.) I think his argument was not only compelling but ultimately correct - affirmative action hurts minorities long term.

But if I was on the Court or in Congress, I don't know how I would vote on this. (Leaving aside the question of whether AA is unconstitutional and focusing on the merits.)

How pretentious does it sound for an overeducated white person to tell a black person that "I'm not going to let you do this - even though you really want to - because you're hurting yourself and you just don't realize it."

I think it's true, but I also think you have to let people learn from their own mistakes.
9.25.2006 6:21pm
Alex650 (mail):
Why are minority recruitment and affirmative action in admissions treated as the same? From a global point of view it may be zero-sum, but if a given school, say, gives free rides to black candidates who get in via a colorblind admissions policy, that school will have both the asthetic diversity it seeks as well as (presumably) no racial disparity in bar passage.

I think the best way to really see how affirmative action is shaking out at various schools would be to get the same numbers above for each school.
9.25.2006 7:52pm
Truth Seeker:
How pretentious does it sound for an overeducated white person to tell a black person that "I'm not going to let you do this - even though you really want to - because you're hurting yourself and you just don't realize it."

Well why would you say that to begin with? How about saying, "It doesn't matter how much anyone wants to do this, we're not going to let anyone in who doesn't meet the objective criteria, grades and LSAT score because we have learned through experience that those successfully determine who will succeed and who will fail."
9.25.2006 10:02pm
How pretentious does it sound for an overeducated white person to tell a black person that "I'm not going to let you do this - even though you really want to - because you're hurting yourself and you just don't realize it.

Surely not worse than "Look, pathetic victim child, we're telling you you'll never be able to do this on your own, so we'll just give it to you anyway to assuage our guilt and your resentment even though it hurts everybody in the process and makes sure you'll really never be able to do it on your own."

Pretentious and demeaning and counterproductive. That's a winning formula for you.
9.25.2006 11:31pm
Barry P. (mail):
There is one statistic not presented in this analysis: the percentage of all lawyers who are black. Or perhaps, how many lawyers practice in low-rent black neighborhoods?

If the second number is greater, then it generally means that a group of people who did not have ready access to a lawyer now might have it, which is a benefit to them and their societies. And those people don't care if their guys were top of the class or not, but the fact that they actually went to law school.
9.26.2006 6:44am