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Does Affirmative Action at Law Schools Help or Hurt Minorities in the Long Run?

Around the blogosphere, there's been a wide debate over whether law school affirmative action programs help or hinder minorities in the long run.   From what I can tell, the debate's been generated by a couple of developments.  First, last week, the United States Commission on Civil Rights took up the issue of affirmative action at law schools at a five-hour hearing.   One of the witnesses,  Volokh Conspirator and George Mason professor David Bernstein, summarizes his testimony.   Related is an ABA proposal announced a few months ago that would make law school accreditation contingent upon racial preferences in admission and hiring.  Also, there's  Stuart Taylor's controversial National Journal column (and this subscription-only Atlantic article ), How Racial Preferences Backfire, that was the subject of intense debate at Peter Lattman's WSJ Law Blog.

Phew!  That's a lot of material to cover.  But essentially, Bernstein expresses concern over a recent study showing that many minority candidates admitted to elite law schools under aggressive affirmative action programs either fail to graduate or pass the bar, while only 8 percent wind up in the top half of the class.  Bernstein also testified that law schools don't even disclose these success rates to "diversity candidates" so that they can make informed decisions about where to attend school.   In his post, Bernstein mentions (and seems to agree with) the conclusions of a study by Richard Sander that  "is predicated on the idea that a student is better off flourishing at a lower-ranked school than floundering at a more elite institution. "

Taylor picks up the argument at the law firm level, argung that law firms' desire to diversify to the point where it will hire lesser qualified applicants dooms minority lawyers to failure:

Most -- if not all -- of the nation's leading law firms seek to become more diverse by using "very large hiring preferences" for African-Americans and smaller preferences for Hispanics. So most of their newly hired minority lawyers have relatively weak academic records that would have brought rejection had they been white [...] Many capable African-Americans experience frustration and failure because racial preferences thrust them into elite settings where they compete against whites with far better qualifications [...]

Large law firms feel enormous pressure -- from corporate clients, the media and others -- to become more diverse. So for decades they have aggressively recruited black and Hispanic law students. Since very few have grades that meet the firms' usual standards, the firms hire many minorities with grades "far below those of the white students hired at the same firms."

Even though blacks make up only 1 or 2 percent of law students with high grades, they make up 8 percent of large law firm hires. One survey shows that at least 46 percent of black lawyers at large firms (compared with 14 percent of whites) had law school GPAs below 3.25. Fifty-six percent of these black lawyers admitted thinking that their race or ethnicity had been relatively important in winning them job offers.

Taylor also sites Sander's conclusions that grades are indicative of success at large firms:

Sander shows that large law firms pay very high salaries to attract the people with the highest law school grades. And available data bear out the firms' belief that these grades measure important skills. ... Surveys of University of Michigan Law School alumni, for example, find that those "with higher GPAs are more likely to survive the large-firm competition for partnerships" and earn more money.

But, many of the comments at WSJ Law Blog are skeptical that minorities' lack of success is explained by lower grades in law school.  One commenter argues, "Corporate law firm partnerships are stacked against minority and female associates" -- and no one has ever contended that females lack credentials or good grades.

I don't agree with an ABA proposal mandating racial preference.  But nor do I have a problem with law schools that voluntarily choose to implement affirmative action to increase diversity.  All things told, a minority who attends an elite school stands a better chance for success at the bottom of the class than if he or she goes to a lower school  For starters, there's no guarantee of success for anyone at a top school or lower-level school.  As New York Lawyer columist Ann Israel always advises, you should go to the best law school you get into.   A top school opens doors, even if life at Biglaw doesn't work out.   Second, as with women attorneys, minority lawyers will find success at firms when they start attracting clients.  At Biglaw, the bottom line isn't brains but earnings potential, which is why large firms will hire former congressmen and well-known political figures irrespective of where they went to law school.  Maybe it makes law professors feel better to think that brains matter in law -- and that may be true for selections for the court.   

Finally, do we truly measure minority success by examining retention rates at law firms?  With corporations calling, why should minorities share the wealth with big firms?  Indeed, many are starting their own firms, as referenced here or here.  Or do we only define success in law as big-firm partnership?

Posted by Carolyn Elefant on June 21, 2006 at 05:01 PM | Permalink | Comments (0)


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