Gail Heriot, professor of law at the University of San Diego and a member of the U.S. Commission on Civil Rights, notes that Affirmative Action Backfires when law schools admit less-qualified black applicants:
Easily the most startling conclusion of his research: [UCLA law professor Richard] Sander calculated that there are fewer black attorneys today than there would have been if law schools had practiced color-blind admissions — about 7.9% fewer by his reckoning. He identified the culprit as the practice of admitting minority students to schools for which they are inadequately prepared. In essence, they have been “matched” to the wrong school.
While some students will outperform their entering academic credentials, just as some students will underperform theirs, most students will perform in the range that their academic credentials predict. As a result, in elite law schools, 51.6% of black students had first-year grade point averages in the bottom 10% of their class as opposed to only 5.6% of white students. Nearly identical performance gaps existed at law schools at all levels. This much is uncontroversial.
The Sander study argued that the most plausible explanation is that, as a result of affirmative action, black and white students with similar credentials are not attending the same schools. The white students are more likely to be attending a school that takes things a little more slowly and spends more time on matters that are covered on the bar exam. They are learning, while their minority peers are struggling at more elite schools.
Mr. Sander calculated that if law schools were to use color-blind admissions policies, fewer black law students would be admitted to law schools (3,182 students instead of 3,706), but since those who were admitted would be attending schools where they have a substantial likelihood of doing well, fewer would fail or drop out (403 vs. 670). In the end, more would pass the bar on their first try (1,859 vs. 1,567) and more would eventually pass the bar (2,150 vs. 1,981) than under the current system of race preferences. Obviously, these figures are just approximations, but they are troubling nonetheless.
David Friedman adds his comments:
After reading the op-ed, I told my wife about it. She pointed out that the argument was not original with Sanders. Almost twenty years ago, in his very interesting Choosing a College: A Guide for Parents and Students, Thomas Sowell made precisely the same point in the context of colleges rather than law schools. Black students at MIT had math scores well above the national average but far below the average for white students at MIT; they would have gotten a better education at a less elite engineering school.