Diversity and Meritocracy in Legal Education: A Critical Evaluation of Linda F. Wightmans's "The Threat to Diversity in Legal Education." (Response to Linda F. Wightman, New York University Law Review, Vol. 72, P. 1, 1997)
Thernstrom, Stephan, Constitutional Commentary
The debate over racial preferences in admissions to higher education has grown more heated than ever, now that a vote by the Regents of the University of California and the passage of Proposition 209 have compelled the university to admit students on a color-blind basis.(1) Those who have drawn far-reaching policy conclusions from the California numbers have neglected the elemental point that a one year experiment in one state cannot yield definitive results. Thus it is fortunate that the results of a massive investigation of the impact of affirmative action in law schools across the nation have recently become available. Linda F. Wightman's article, "The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admissions Decisions," published in the April, 1997 issue of the New York University Law Review, has received considerable publicity. It includes remarkably rich and compelling evidence about the effects of racially preferential policies in law school admissions.(2) Unfortunately, Professor Wightman does not herself draw the most important conclusions that her own data support. Indeed, her interpretations run directly counter to her own evidence at many points. A thorough critical evaluation of her analysis will help to clarify the issues in a vital current dispute about legal education.
For a highly technical piece appearing in a law review, Professor Wightman's study attracted a surprising amount of national attention, doubtless because of its apparent relevance to the current heated debate over racial preferences in higher education. Her study purported to show both that the number of minority law school students would drop drastically in the absence of racial preferences in admissions, and that students admitted under affirmative action double standards were nonetheless just as successful as anyone else after they began their legal studies. Their inferior academic qualifications at the time of admission did not hinder their progress through law school or their entry into the profession.
These conclusions were welcome news to many writers, particularly the highly optimistic findings about the alleged academic success of students admitted as a result of affirmative action preferences. According to Time, the study established that African American and other minority students admitted to law schools due to preferential policies "had graduation and bar-exam pass rates similar to whites.'"(3) Newsweek columnist Ellis Cose declared that Professor Wightman had found "no real difference ... between those minorities who would have been admitted without affirmative action and those admitted because of it."(4) NPR's "All Things Considered" featured an interview with the author that stressed the same conclusions.(5) Professor Wightman, the public was led to believe, had established that affirmative action admissions policies in law schools had no significant costs. Although the beneficiaries of racial and ethnic preferences were admitted with distinctly weaker academic qualifications than other students, their initial handicaps apparently vanished in the course of their graduate education.
Only one criticism of the Wightman study has appeared in print thus far, a brief piece by Gail Heriot in the Weekly Standard.(6) An article that has attracted so much attention but so little critical evaluation clearly calls for more detailed scrutiny.
The research for Professor Wightman's article was conducted while she was Vice President for Testing, Operations, and Research for the Law School Admissions Council. The resources of the council allowed her to compile a formidable data base. She had information about more than 90,000 applicants to ABA-approved law schools for the academic year 1990-1991. A second sample, a subset of the first, consisted of some 27,000 of those applicants who actually enrolled in law school in the Fall of 1991. …