Does Affirmative Action Reduce the Number of Black Lawyers?

By Ayres, Ian; Brooks, Richard | Stanford Law Review, May 2005 | Go to article overview
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Does Affirmative Action Reduce the Number of Black Lawyers?

Ayres, Ian, Brooks, Richard, Stanford Law Review

    A. The "White Median Tier"
    B. The Impact of Eliminating Affirmative Action
    A. The Relative Tier Analysis
    B. Analysis of Students Who Were Admitted to Their "First Choice"
    C. Stereotype Threat and Lift


Richard Sander's study of affirmative action at U.S. law schools highlights a real and serious problem: the average black law student's grades are startlingly low. (1) With the exception of traditionally black law schools (where blacks still make up 43.8% of the student body), the median black law school grade point average is at the 6.7th percentile of white law students. (2) This means that only 6.7% of whites have lower grades than 50% of blacks. One finds a similar result at the other end of the distribution--as only 7.5% of blacks have grades that are higher than the white median. (3)

Given these low grades, it should not be surprising that black students are less likely to graduate from law school and less likely to pass the bar. In fact, in the LSAC data, (4) 83.2% of whites graduated and passed the bar within five years of entering law school, while only 57.5% of blacks entering law schools became lawyers. Sander has made an important contribution by simply bringing national attention to the racial disparities in law school grades and bar passage rates. This represents another instance of the pervasive pattern of observed black-white disparities in health, occupational, and educational outcomes. (5)

However, beyond merely identifying another set of racial disparities, Sander has gone further by claiming that affirmative action is the cause of the black-white gap in law school grades: "virtually all of the black-white gap ... seems attributable to preferences: virtually none of it seems attributable to race or correlates of race (such as income)." (6)

His core idea, based on the "academic mismatch hypothesis," is compelling in its simplicity: Because blacks tend to have systematically lower entering credentials than the median (white) student, black students learn less than they might have if they had attended schools at which they were better matched, and thus they should be expected to earn lower law school grades and to graduate and pass the bar at lower rates.

Sander claims that the mismatch effect caused by affirmative action is so significant that it actually reduces the overall number of black lawyers. While estimating that affirmative action causes 14.1% more blacks to enter law school, he concludes that the lower graduation rates and bar passage rates of mismatched black students on net reduce the number of black lawyers by 7.9% (relative to the number that would be produced in a system without affirmative action). (7)

While the mismatch hypothesis is plausible, this response refutes the claim that affirmative action has reduced the number of black lawyers. We find no persuasive evidence that current levels of affirmative action have reduced the probability that black law students will become lawyers. We estimate that the elimination of affirmative action would reduce the number of lawyers. Indeed, some of our results suggest an equally plausible "reverse mismatch effect," where the probability of black law students becoming lawyers would be maximized under a system involving an affirmative action program with larger racial preferences than those presently in place. We emphasize, however, that we do not view these estimates as definitive, as they are derived within the simple tier-index score framework offered by Sander. We put them forward to underscore our conclusion that, even within his framework, there is not persuasive evidence indicating that affirmative action is responsible for lowering the number of black attorneys.

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