–Sebastian
The typical critique of affirmative action centers on one of three related ideas: that the government ought not discriminate on the basis of race, that affirmative action can increase the intensity and frequency of racism by casting suspicion on the accomplishments of its recipients while causing certain racial groups (typically white and Asian groups) to believe they are being damaged, or that affirmative action attacks the problem at entirely the wrong level (the fix the public schools argument). David Bernstein at The Volokh Conspiracy offers another argument: that the application of affirmative action (at least in law schools) is actively detrimental to the a large number of its recipients.
Over at Balkinization, Ian Ayres argues (and I agree) that Richard Sander’s 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 [or at least, I’m not confident Sander’s proven that], 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 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 schools [Bernstein: which means at low-ranked schools, the statistic is well above 42.6 percent]. While Sander 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 so much that black students at elite law schools are being harmed by an affirmative action "mismatch," as Sander would have it, but that while the overwhelming majority of black students at elite schools succeed [update: in the sense of graduating and passing the bar], most black students admitted at the bottom two-thirds of American law schools will never become lawyers. [Update: Contra Sander’s point about the effect of affirmative action on the number of black lawyers, a bottom-tier law school that admits ten black law students on an affirmative action basis, only two of whom actually become lawyers, is indeed increasing the pool of black attorneys, but at the cost of unfairly disrupting the lives of the other eight students.]
I cannot add much to the substantive analysis of this part of the debate more than pointing to the article and discussion about it (here and here). What I can definitely add is a comment on the disruptive effects of law school. Law school costs an enormous amount of money. Unless you are independently wealthy, it is likely that you will exit law school with more than $100,000 in debt. As someone who attended law school, didn’t find it particularly challenging or stressful, and did pass the bar, I often think that it wasn’t worth it. Becoming a lawyer out of a desire to help out with some sense of justice can be very disheartening in the real world. Becoming a lawyer to be rich is a hugely inefficient way to become rich. And those cover the two major motivational areas with respect to becoming a lawyer. I am certain that those who find law school very stressful and then still can’t pass the bar think the deal is even worse.
I knew by the middle of my second year in law school that I did not want to become a lawyer in a traditional law firm. But by then I was more than $60,000 in debt and felt compelled to finish. I have been very fortunate to find a corporate job tangentially related to my training (though I would not have had to pass the bar, and my pre-law school training would have probably been enough) so that I have been able to avoid working at a law firm without taking a total loss on my J.D. But the debt service is still very noticeable. I can only imagine how crushing it would be to have gone through law school and be unable to pass the bar. The ABA requires that all schools have ‘appropriate’ racial compositions of their incoming first-year class or it refuses to give accreditation. This seems to have the effect at the lower-tier schools of encouraging the schools to let students in whom the school knows are very likely to either fail to finish law school or (worse) are very unlikely to ever pass the bar if they do finish law school. The trade-off in getting more minority lawyers while seriously damaging the financial health of far more minority non-lawyers seems to be a serious problem.
(I will note for the record that this problem may not be generalizable much beyond law schools and perhaps medical schools).
“Becoming a lawyer out of a desire to help out with some sense of justice can be very disheartening in the real world. Becoming a lawyer to be rich is a hugely inefficient way to become rich. And those cover the two major motivational areas with respect to becoming a lawyer.”
Me, I just wanted a steady salary with benefits that would offer a reasonable prospect of supporting a family, me having majored in prepoverty (i.e., philosophy) and topped that off with an M.A. in English. I could read, write, and argue; what other profession was there? And I don’t think I’m completely unusual in my motives, tho perhaps in my trajectory. Some people just need jobs, y’know?
And if you had been admitted to law school, paid for all three years and been unable to pass the bar would you consider yourself better off?
re: medical schools…
The tight-lipped nature of medical schools makes it difficult to discover an analogout study for them. They would have to voluntarily release the race information for failing students. Most will go to great lengths to keep up the public perception that all medical schools graduate perfect physicians.
The only study I could find was for UC Irvine… They have two groups of students – normal admission students and special-consideration students. The latter included around 50% under represented minorities. The special consideration students graduated at a 94% rate while the rest was 97% (pretty average for all med schools, it costs so much to graduate a physician that schools work very hard to keep them in).
So, there is something to show affirmative action may let in lower quality students, at least for this tiny study. Thing is, its more complicated than that.
After graduation, studies show there is little or no difference in residency success with regards to race. So, if they can get through school, they will do fine. There is a residency spot for every person who can graduate. This is in contrast to lawyers, where there are far more law students than positions for them.
An even more important issue is where minorities go to practice. There are tons of studies that show minority med school students end up practicing in medically underserved areas. Medschools, especially state schools, have a duty to serve patient needs so they are very serious about graduating physicians who will work where they are needed. Because of this, the schools have to consider this when deciding admissions.
I think this is a good thing and outweighs the tiny 3% difference in graduation rates found in the UC Irvine study. As for satisfaction with work after graduation, one study found minorities were happier in residency and practice than average.
I am busy, so detailed comments will have to wait for later. However, two points: first, (to heet): in order to show that affirmative action harms participants, one would have to ask whether the difference in graduation rates has anything to do with it. If memory serves, there is a difference in graduation rates between blacks and whites across the board, but it decreases with the selectivity of the school, even when other things (SATs, family income, etc.) are held constant. That is: a person with the same SATs, etc, is more likely to graduate if admitted to a more selective school.
Second: Sebastian, why is this a problem with affirmative action, and not with (e.g.) prelaw counseling? And why isn’t the idea that protecting students from their (purportedly) bad choices counts in favor of affirmative action paternalistic?
hilzoy :
Yes, I agree… I suppose my point wasn’t obvious but I was trying to say that, at least for medical schools, affirmative action probably isn’t hurting those it supposedly helps. In fact, schools use race as a factor in admissions (along w/ desire to practice in underserved areas) in order to fulfill a duty to society.
Heet,
I found some data on UC Irvine, but not the study you describe. Obviously, the significance of the 3% gap depends on the number of students in the sample. Do you happen to know? If it covers only a year or two then the difference is really meaningless.
Hilzoy,
Surely it can be a problem with both affirmative action as practiced and pre-law counselling. There is no question that everyone involved needs to do a better job of informing students about the relevant probabilities.
I suspect part of the problem here is that admissions staff, under pressure to increase minority enrollment, may sometimes be less than candid with applicants, and of course no one enjoys telling students who want to go to law school that there is a strong chance they are wasting their time and money.
As I understand it, by the way, this is just one aspect of a broader problem with law schools. Lots of graduates have a hard time finding attractive employment even if they do pass the bar. Just look at Sebastian’s story.
The prelaw counseling you mention doesn’t exist to my knowledge (at least not in any regular sense). Furthermore it is important to look at that issue as intersecting with the ABA requirements for law schools. The ABA requires a ‘representative’ cross-section of students. In the upper-tier schools this isn’t a huge problem because they can draw from qualified medium-tier students. For a lower-tier school this is a huge problem because they must draw from barely qualified or otherwise unqualified applicants. (We could argue that the schools should just close down of course.)
I’m not convinced the paternalistic argument is a good one. The government policy is deforming the situation to contribute greatly to a bad outcome. It isn’t particularly paternalistic to suggest that government interventions shouldn’t do that.
Strange mishmash of a post.
1. If the drop-out rate is predominantly at the lower-tier schools, then this is not an affirmative action issue. Some of the low-end schools, especially those which are not accredited, are virtually open-admission. No one is forcing black kids to go to these school, so high drop out rates do not imply failed AA policies.
2. We will need a working definition of AA before going much farther. Just how much worse are the qualifications of the black candidates than their counterparts at the top 10, top 25, top 50 law schools? What are their dropout rates? How do the dropouts and the stayins rate their law school experience? How successful are the two groups financially?
3. It’s interesting that law school for SH was neither stressful nor challenging yet he’s not a practicing lawyer. I found lawschool somewhat stressful and very interesting, and i am a lawyer. While many lawyers hate their jobs (professional satisfaction and alcohol consumption polls among Cal. lawyers are frightening), many of us don’t. Certainly plenty of the work is just a grind and many days are dead boring. But the clients have real problems and a good lawyer understands the personal responsibility he / she bears for addressing those problems. And those of us lucky enough to practice in areas of the law where the answers are not so clear (like, for example, water law) work in an intellectually demanding, rigorous and competitive environment.
4. I also thought that you, SH, posted under your own name. You’ve made enough jokes about your last name. The State Bar’s website does not list any Hoslclaw in San Diego. Let your license lapse?
5. Post-secondary school debt is a separate and difficult problem. Good schooling is probably the single most important public good a state can provide after security, yet state after state is pumping extra dollars into prisons, locking up non-violent drug offenders, instead of schools. While I know virtually nothing about the education system, it seems to me that our present allocation of financial and social resources is sub-optimal.
If affirmative action is most helpful at the elite level, would you support it at Harvard, but perhaps not at the state college level? Put another way, would you suggest perhaps a standard that is proportional to the acceptance rate of a given program/school?
Nope, passed the bar and then never got sworn in because I didn’t need it for my job and didn’t want to pay the California fees. I am considering getting sworn in just so if I ever (God forbid) have to use the license I don’t have to take the bar again. (You can look me up in the California pass list for the July 2000 bar if you like).
It sounds to me like there are too many factors involved in the situation to narrow it down to a problem with affirmative action or with government intervention in this one area. Here are the factors I see so far in this discussion:
1- The ABA requires that law schools admit a representative cross-section.
2- Graduate and professional schools are producing about double the market demand of people with advanced degrees.
3- Law school is so expensive that only the 50% that succeed can afford to pay off the resulting debt load.
4- State governments often set artificially low caps on in-state tuition for public universities, requiring that the institutions deal in higher volume in order to make up for the budgetary cutbacks coming down from the state.
This is a far from complete list, but it already begins to show signs that the problem is not particular to affirmative action, but is, at most, affirmative action further deforming an already deformed market. How do we propose to isolate affirmative action as a factor in all of these contingencies to get a clear picture free from ideological bias?
Bernard,
That’s because it was UC Davis, not Irvine… My bad… The PubMed entry is here.
The study uses data from 1968 to 1987.
SH, while the fees are bad enough, the MCLE requirement easily doubles the annual cost. Inactive status is probably the way to go.
Having re-read your post and the comment thread, I think that way too many people see law school as an easy way into the good life. I used to blame LA Law; now, i think, Law & Order is to blame.
Low-tier and unaccredited law schools have vicious failure rates (like 1/3rd) in order to have some semblance of a respectable pass rate on the bar. Yet, it’s also likely that some law schools are adversely affecting their AA students by bringing them into an environment in which they cannot compete.
Gak, yet another rambling post. In short, admissions deans need to be sensitive to the ability of marginal candidates to compete in a difficult environment, whether due to high fail-out rates or ruthless and highly-trained classmates.
“Gak, yet another rambling post.”
Francis, ramble on, sing your song.
The government policy is deforming the situation to contribute greatly to a bad outcome
Everyone is aware that the ABA is not a government entity, right?
The interlocking relationship between the ability to practice law (as enforced by the power of the state) and the accreditation program of the ABA make talking about it as government action good enough shorthand. But yes the ABA is not strictly a government entity.
Heet,
Thanks. The summary doesn’t give actual numbers, but given the time period the difference could be statistically meaningful.
The most interesting thing is that there seem to be no differences in the quality of the graduates as actual practitioners, either at the residency level or later on.
I used to blame LA Law; now, i think, Law & Order is to blame.
or Ally McBeal.
The interlocking relationship between the ability to practice law (as enforced by the power of the state) and the accreditation program of the ABA make talking about it as government action good enough shorthand
Er, no. Unless the government is requiring the ABA to have this policy of “appropriate representation,” the fact that you must graduate from an accredited law school to take the bar exam (which is what I assume you mean by “the interlocking relationship,” and which isn’t even true in several states, including – wait for it – California) does not itself render the ABA’s decision to be government action.
To be clear – my point isn’t that your discussion is not germane to the topic of affirmative action; surely a general discussion about preferences can usefully include the effects and effectiveness of the preference policies of a self-regulating profession. My only point is that the workings of the ABA’s policy ain’t state action, at least not the way my law school taught it.
“which is what I assume you mean by “the interlocking relationship,” and which isn’t even true in several states, including – wait for it – California”
Actually if we are nit-picking I believe the rule (everywhere) is that if you go to a non-accredited school you may take the bar only in the state where you attend school. And often there are other requirements tacked on to non-accredited schools before you can take the bar.
I actually think that the ABA is in an interesting gap between our (or at least my) understanding of state and non-state actors. The ABA derives almost all of its power from the fact that it is legally granted by the state the status of gatekeeper to a particular profession.
Clearly, the solution is to be like Leonardo DeCaprio in Come Fly With Me or whatever it was called, marry a wealthy debutante, and just pass the Louisiana Bar exam.
Interesting question. I have to wonder about the following points.
-How active (and picky) is a process of ABA certification? Most certification bodies have a number of preliminary steps that function as warnings and it is usually continued problematic behavior results in a suspension
-Could the ABA grant certification on the basis of the percentage of the class that passes the (or a) bar? This would encourage schools to not only provide more student support but also choose students more with an eye to their abilities
-How good is the LSAT as a predictor of law school success?
-Are there other career paths that involve a JD, but not necessarily passing the bar?
and finally,
-why is law school so expensive? It’s not like you need massive amounts of equipment to set up a faculty.
The ABA is very active in certification.
The ABA takes bar passage into account for the school as a whole, but this can partially be offset by less marginal non-minority students. My understanding is that this is more of an initial certification issue, while racial composition is more of an ongoing concern, but I don’t have any idea where I heard that.
The LSAT is generally considered an excellent predictor of law school success and an even better predictor of bar passage chances.
There are other carreer paths, but most of them are unintentional byproducts of the fact that so many lawyers end up hating their jobs.
I can’t answer the last one. My guess would be high demand for J.D.’s possibly caused by unrealistic expectations about post-graduate success.
lj: faculties are, actually, expensive, at any rate if you’re interested in hiring a good one. Likewise, buildings, libraries, support staff, dormitories, and so on and so forth. I’m not sure of the relevant figures for law school but last time I checked, undergraduate tuition, appallingly high though it is, didn’t begin to pay for the costs of undergraduate education. (That’s why God created fund drives.)
Specifically, considering the high rates of pay available to lawyers in the private market, law schools must offer more money to keep faculty in academia. To be sure, the rates aren’t actually competitive per se with private firms, but they are higher than the average post-grad professor’s salary. It’s not like there are thousands of $200,000/year jobs for English Literature PhD’s waiting out there in the private sector – if there were, being an english professor would be a decidedly cushier gig. This is becoming more acute as law school seek to provide a more practical grounding in commercial law for upper level students, and seek to hire professors away from firms – our firm just lost a partner to academia last year. So, while it is generally true that faculties are expensive, law faculties are particularly so.