Quin-essential Cases: The perverse results of affirmative action

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With the incoming president and first lady both being African-American graduates of elite law schools, it stands to reason that a host of aspiring black collegians would want to emulate their success.

Counterintuitively, a member of the United States Commission on Civil Rights has written a paper suggesting that the best way to produce more black lawyers is to eliminate racial preferences at law schools, especially at elite law schools.

Commissioner Gail Heriot, also a professor of law at the University of San Diego (USD), wrote in this fall’s edition of the school’s “The Journal of Contemporary Legal Issues” about the commission’s investigations showing what she called “troubling evidence that race-based affirmative action policies may have harmed rather than helped minority students who aspire to become attorneys.”

Heriot based her essay largely, but far from exclusively, on a study by UCLA Law Professor Richard Sander. “If his findings are correct,” she wrote, “there are today approximately 7.9% fewer, not more, practicing attorneys as a result of race-based admissions policies.”

Sander’s research indicates that without affirmative action, fewer African-Americans would be admitted to law schools, but more would eventually pass the bar exam and become practicing attorneys.

At first glance, of course, these findings seem to make no sense. But the key lies in the concept of “academic mismatch.” Heriot explains: “Students who attend schools where their academic credentials are substantially below their fellow students’ tend to perform poorly.” They consistently receive worse grades, and they drop out at far higher rates.

On the contrary, when African-American students are competing against white or Asian students of similar academic credentials, they “performed very close to the same.” In other words, the problem isn’t race but readiness.

Black students with high credentials will do just as well at Yale or Harvard as white students with the same prior achievement levels; black students with appropriate academic training who go to good second-tier law schools (Tulane, William & Mary) will fit in just fine at those places, too.

But, as would be the case with students of any race, black students admitted with lesser credentials struggle. Race-based admissions, according to Heriot, put students behind the proverbial Eight Ball.
Rather than thrive and advance, they falter, get discouraged, lose confidence, and all too often leave law school altogether – even though they might well advance to superb careers as lawyers if they attend less selective schools.

The same tendencies apply for students who attend second-tier law schools when their credentials are better suited to third-tier programs – and so on down the line. If the goal isn’t to admit more black students, but to actually produce more black lawyers, then, according to Heriot, the best way is to have race-blind admissions so that students can study in the milieu most appropriate for their advancement.

Furthermore, Heriot reports, law firms in practice are at least as likely to hire based on good grades from mid-tier law schools than they are to hire those who made poor grades from “prestige” universities. “Interestingly,” Heriot wrote, “the best available evidence shows that attendance at an elite college or university does not add to earnings capacity.”

It is worth noting that both Heriot and Sander once were strong advocates of affirmative action before the objective data changed their minds.

It is therefore particularly counterproductive for the American Bar Association, which acts as an accrediting agency for law schools, to pressure law schools to meet numerical “diversity” standards.

Heriot reported that the ABA has acted in egregiously bullying fashion in threatening to withhold accreditation from law schools with too low a percentage of black enrollees, even if those schools sponsor active minority recruitment efforts.

Indeed, the U.S. Department of Education threatened to strip the ABA of its accrediting role if the ABA continued such tactics. In 2006, the ABA was forced to pay a $185,000 fine for failing to abide by a court’s “consent degree” ordering it to revise its accrediting practices.

If the new evidence compiled by Heriot stands up to further research, it may turn out that the ABA not only has been skirting the law but also has been harming the very black students it purports to be helping.

Quin Hillyer is associate editorial page editor of The Washington Examiner. He can be reached at qhillyer@dcexaminer.com.

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