A systemic analysis of affirmative action in american law schools

Stanford Law Review

Volumn 57, Issue 2, 2004, Pages 367-483

  Sander, Richard H ^a,b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b NORTHWESTERN UNIVERSITY   (United States)

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EID: 33646024940     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (354)

1. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (plurality opinion).
2. WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS (1998);
3. Richard O. Lempert et al., Michigan's Minority Graduates in Practice: The River Runs Through Law School, 25 LAW & SOC. INQUIRY 395 (2000). Bowen and Bok do, briefly, consider the question of how students would fare without affirmative action, but their analysis is so superficial as to provide little helpful insight on this question; subsequent work has thrown even their modest conclusions into question.
4. There are exceptions. California still allows prospective lawyers to learn the law in a law office and bypass law school; Wisconsin allows graduates of some schools to automatically enter its bar.
5. Kristine S. Knaplund & Richard H. Sander, The Art and Science of Academic Support, 45 J. LEGAL EDUC. 157 (1995).
6. . I explored this and other matters related to law school socioeconomic diversity in Richard H. Sander, Experimenting with Class-Based Affirmative Action, 47 J. LEGAL EDUC. 472 (1997).
7. This is especially true in the absence of compelling evidence that whites are substantially harmed. Careful readers will realize that the evidence in this Article suggests that the material harms to whites from affirmative action in law schools are comparatively slight. Indeed, the effects on whites are in many ways a mirror image of the effects on blacks (though more muted by relative numbers), and thus whites probably have higher grades, graduation rates, and bar passage rates than they would in a system totally lacking racial preferences.
8. These costs include not only the national competition between Democrats and Republicans, but interracial goodwill, the belief held by whites that they are "already" making sufficient sacrifices for the cause of racial justice, and the credibility of institutions that are often trapped in deceptions by their own policies.
9. See infra Table 8.2 and accompanying text (showing how race-blind admissions would produce an 8% increase in the number of blacks passing the bar each year, even though the legal education system would matriculate 14% fewer black students). Like any simulation, my analysis is subject to debatable assumptions. Two fundamental points are beyond doubt, however: (a) because of the effect of preferences, see infra Part III, a general abandonment of racial preferences would have a relatively modest effect on total black admissions; and (b) current preferences cause blacks to be clustered academically in the bottom of their law school classes, see infra Tables 5.1, 5.3, 5.4, greatly increasing black attrition in law school and the bar. These effects combined strongly suggest there would be a net increase in black lawyers under a race-blind system.
10. Grutter v. Bollinger, 539 U.S. 306 (2003).
11. Am. Bar Ass'n, Minority Enrollment 1971-2002, at http://www.abanet.org/legaled/ statistics/minstats.html (last visited Nov. 3, 2004) [hereinafter Am. Bar Ass'n, Minority Enrollment 1971-2002];
12. Memorandum from David Rosenlieb, Data Specialist, Section of Legal Education and Admission to the Bar, American Bar Association, to Deans of ABA-Approved Law Schools, Corrected Fall 2002 Enrollment Statistics (May 16, 2003), at http://www.abanet.org/legaled/statistics/Fall%202002%20Enrollment.pdf (last visited Nov. 22, 2004) [hereinafter Rosenlieb Memorandum].
13. U.S. CENSUS BUREAU, 2003 STATISTICAL ABSTRACT OF THE UNITED STATES 191 tbl.299 (2003).
14. In 2001, blacks made up 14.5% of U.S. residents between the ages of twenty and twenty-four. U.S. CENSUS BUREAU, 2002 STATISTICAL ABSTRACT OF THE UNITED STATES 16 tbl.14 (2002).
15. According to the 2002 Statistical Abstract of the United States, blacks secured 8.2% of master's degrees granted in 2001, along with 4.9% of doctoral degrees and 6.8% of "first professional" degrees (including degrees in law, medicine, theology, and dentistry). Id. at 191 tbl.299. According to the American Bar Association's website, blacks earned 7% of all law degrees in that year. Am. Bar Ass'n, J.D. Enrollment and J.D. Degrees Awarded (Total/Women/Minorities), at http://www.abanet.org/legaled/statistics/jd.html (last visited Nov. 22, 2004);
16. Am. Bar Ass'n, Minority Degrees Awarded (by Ethnic Groups 1980-2002), at http://www.abanet.org/legaled/statistics/mindegrees.html (last visited Nov. 22, 2004)
17. [hereinafter Am. Bar Ass'n, Minority Degrees Awarded].
18. Harry E. Groves, Report on the Minority Groups Project, 1965 ASS'N AM. L. SCHS. PROC., PART ONE 171, 172.1 infer these numbers from the fact that total black enrollment at ABA-approved law schools for 1964-1965 was 701, with 267 attending the six historically black law schools and 165 at Howard University Law School alone. Because of prevalently high dropout rates at the time, over forty percent of all law students were first-year students. At the time, Howard was by far the largest and most respected of the black law schools. The other law schools were institutions established by southern states to maintain segregated education; these schools had tiny enrollments.
19. Id.
20. Blacks accounted for about 1.1% of all American lawyers in 1960. U.S. BUREAU OF THE CENSUS, U.S. CENSUS OF POPULATION: 1960, SUBJECT REPORTS OCCUPATIONAL CHARACTERISTICS 21 tbl.3 (1963).
21. For example, Asians, who have generally been overrepresented in higher education relative to their numbers, made up about 0.7% of the U.S. population in 1970, but only 0.4% of third-year students in law schools in 1971-1972. By 2000, Asians made up 3.8% of the U.S. population but 6.7% of first-year law students. FRANK HOBBS & NICOLE STOOPS, U.S. BUREAU OF THE CENSUS, DEMOGRAPHIC TRENDS IN THE 20TH CENTURY 77 fig.3-4 (2002);
22. Am. Bar Ass'n, Legal Education and Bar Admissions Statistics, 1963-2002, at http://www.abanet.org/legaled/statistics/le_bastats.html (last visited Nov. 22, 2004);
23. Am. Bar Ass'n, Minority Enrollment 1971-2002, supra note 10.
24. Comparison data for other types of graduate education can be found in FRANK BROWN ET AL., MINORITY ENROLLMENT AND REPRESENTATION IN INSTITUTIONS OF HIGHER EDUCATION (1974). In 1960, blacks made up 2.9% of all graduate school enrollment in the United States. Id. at 186. The percentage in 1970 was 3.1%. Id.
25. Some of the early litigation against "separate but equal" regimes focused on these southern law schools. See Sweatt v. Painter, 339 U.S. 629 (1950); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). On black exclusion in the South, see also RICHARD L. ABEL, AMERICAN LAWYERS 100 (1989).
26. Examples include Charles Hamilton Houston (the first black editorial member of the Harvard Law Review, in 1921), William Henry Hastie (another black Harvard Law Review member, who became a federal judge in 1937), and Dr. Sadie Tanner Mossell Alexander (a black economist who served on the Pennsylvania Law Review). See Many of the Nation's Most Prestigious Law Reviews Have Lily-White Editorial Boards, 19 J. BLACKS HIGHER EDUC. 44, 55 (1998).
27. See generally BROWN ET AL., supra note 18 (comparing minority enrollment data for different types of graduate education).
28. Charles C. Davidson et al., Report of the Committee on Racial Discrimination in Law Schools, 1962 ASS'N AM. L. SCHS. PROC. 195, 195.
29. Benjamin F. Boyer et al., Report of the Committee on Racial Discrimination: Problem of Negro Applicants, 1964 ASS'N AM. L. SCHS. PROC., PART ONE 159, 160-61.
30. The fifty-percent figure is the median ten-year attrition rate calculated from the responses of fifty-four law schools surveyed by the AALS in 1964-1965. See Groves, supra note 14, at 172-73.
31. See generally Earl L. Carl, The Shortage of Negro Lawyers: Pluralistic Legal Education and Legal Services for the Poor, 20 J. LEGAL EDUC. 21 (1967-1968) (arguing that blacks viewed law as "white man's business" and had little awareness of the existence of a black bar);
32. Earl L. Carl & Kenneth R. Callahan, Negroes and the Law, 17 J. LEGAL EDUC. 250 (1964-1965) (claiming that blacks felt general mistrust of the law as an instrument of whites); Groves, supra note 14, at 173-74 (presenting survey of law school deans asked to explain low black enrollment).
33. Not atypically, it was a program started by Harvard (which beginning in 1965 brought black college students to Cambridge for a summer session) that secured the most publicity. See Robert M. O'Neil, Preferential Admissions: Equalizing Access to Legal Education, 1970 U. TOL. L. REV. 281, 301;
34. see also Louis A. Toepfer, Harvard's Special Summer Program, 18 J. LEGAL EDUC. 443 (1966).
35. Sixty-nine law schools reported the LSAT distributions of their students to both the 1969 and 1980 Prelaw Handbooks issued by the American Association of Law Schools. The proportion of these schools with median LSAT scores higher than 600 rose from 10.2% in 1969 to 71% in 1980. ASS'N OF AM. LAW SCHS. & LAW SCH. ADMISSION TEST COUNCIL, LAW STUDY AND PRACTICE IN THE UNITED STATES, 1969-70 PRE-LAW HANDBOOK B(2)-3, tbl.X (1970);
36. ASS'N OF AM. LAW SCHS. & LAW SCH. ADMISSION TEST COUNCIL, 1980-82 PRE-LAW HANDBOOK: OFFICIAL GUIDE TO ABA-APPROVED LAW SCHOOLS 45 (1980). It should be noted that the methodologies used to arrive at the cited figures were slightly different, so the numbers may not exactly correlate.
37. Boyer et al., supra note 23, at 159-60.
38. One notable exception was Emory University School of Law. In 1965, Emory instituted a summer program for interested black students; any student who completed the program was guaranteed a seat in the first-year class. The program was quite similar to the much-larger-scale Council on Legal Educational Opportunity (CLEO) program begun a few years later. Hardy Dillard et al., Report of the Advisory Committee for the Minority Groups Study, 1967 ASS'N AM. LAW SCHS. PROC., PART ONE 160, 166-67.
39. The Kerner Commission, charged by President Lyndon Johnson with investigating the causes of the rioting that had rocked many central cities in the mid-1960s, produced a surprisingly harsh assessment of continuing racism in American society and institutions.
40. The first federally mandated affirmative action program in the employment arena - the so-called "Philadelphia Plan," affecting construction jobs in federally funded projects - began soon afterwards, in the fall of 1969.
41. O'Neil, supra note 26, at 306-07.
42. See Groves, supra note 14, at 172.
43. An ABA analysis of black enrollments at law schools in 1969-1970 makes plain which schools had launched affirmative action programs and which had not. Considering students in all three years of law school, Columbia in that term was 6.3% black while Fordham was 1% black, UCLA was 6.9% black while Stanford was 2% black, and Yale was 8.5% black while the University of Connecticut was 1.7% black. Almost no southern school during that term was more than 2% black. John Atwood et al., Survey of Black Law Student Enrollment, 16 STUDENT L.J. 18, 36, 37 (1971). Black enrollments today still vary a good deal, but there are few regional disparities (except in the Plains and Rocky Mountain states, which have very small black populations) and virtually all elite schools not operating under legal constraints have significant black enrollments.
44. See generally LAW SCH. ADMISSION COUNCIL & AM. BAR ASS'N, THE ABA-LSAC OFFICIAL GUIDE TO ABA-APPROVED LAW SCHOOLS: 2004 EDITION (2003) (reporting racial compositions for individual law schools) [hereinafter 2004 OFFICIAL GUIDE TO ABA-APPROVED LAW SCHOOLS].
45. The ABA website reports 2066 first-year blacks in law schools in 1973-1974, see Am. Bar Ass'n, Minority Enrollment 1971-2002, supra note 10. Historically black law schools had total minority enrollments of 946 that year, and it is plausible that about 350 of these were first-year students.
46. AM. BAR ASS'N, LAW SCHOOLS AND BAR ADMISSION REQUIREMENTS: A REVIEW OF LEGAL EDUCATION IN THE UNITED STATES - FALL 1973, at 12, 18, 26, 33 (1974). The increase was easy for many schools because most of them were increasing their overall enrollments. Sharp rises in the number and quality of law school applicants, and an apparently booming legal market (characterized then, as now, by escalating salaries at the top end) led to a doubling in the number of law school graduates between 1970 and 1975, and the creation of many new law schools.
47. See Richard H. Sander & E. Douglass Williams, Why Are There So Many Lawyers? Perspectives on a Turbulent Market, 14 LAW & SOC. INQUIRY 431, 445 tbl.8 (1989).
48. A good example of the prevailing view was Justice Douglas's opinion in DeFunis v. Odegaard, 416 U.S. 312 (1974). In that case, a white applicant challenged admissions policies at the University of Washington Law School, contending that the school exercised illegal racial preferences in favor of blacks. Id. at 314. The Supreme Court held, per curiam, that the case had been mooted by DeFunis's impending graduation from law school, id. at 317, but Justice Douglas wrote a dissenting opinion addressing the merits, id. at 320. Justice Douglas expressed serious doubts about racial preferences, but condemned the LSAT as a culturally biased metric that gave many whites an unfair advantage. Id. at 340-41 (Douglas, J., dissenting). See infra Part IV for examples of arguments about LSAT bias, as well as my discussion of the validity of standardized tests.
49. Minority attrition rates are based on comparisons of first- and third-year enrollments. During this same period, white retention rates - buoyed by the strengthening of the applicant pool - were rising to average levels of around ninety percent (based on comparison of first-year enrollment and degrees awarded). AM. BAR ASS'N, SECTION OF LEGAL EDUC. & ADMISSIONS TO THE BAR, 51 LAW SCHOOLS & BAR ADMISSION REQUIREMENTS: A REVIEW OF LEGAL EDUCATION IN THE UNITED STATES - FALL 1976, at 47-48 (1977).
50. Michael D. Rappaport, The Legal Educational Opportunity Program at UCLA: Eight Years of Experience, 4 BLACK L.J. 506, 516 (1975).
51. Id. at 507; Brief Amicus Curiae for the Association of American Law Schools, Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (No. 76-811), reprinted in 3 ALLAN BAKKE VERSUS REGENTS OF THE UNIVERSITY OF CALIFORNIA, THE SUPREME COURT OF THE UNITED STATES 379, 393-96 (Alfred A. Slocum ed., 1978) [hereinafter AALS Bakke Brief].
52. SUSAN WELCH & JOHN GRUHL, AFFIRMATIVE ACTION AND MINORITY ENROLLMENT IN MEDICAL AND LAW SCHOOLS 56-58, 56 fig.2.6 (1998).
53. AALS Bakke Brief, supra note 39 (submitted for the 1976-1977 Term of the Supreme Court, although the Court did not issue its decision until June 1978).
54. Id. at 14-15.
55. "We know . . . that the test is not racially biased. Five separate studies have indicated that the test does not underpredict the law school performance of blacks and Mexican-Americans." Id. at 13.
56. Id. at 20. The brief noted that, of course, all law schools also used "soft" factors (such as letters of recommendation) in admissions. But greater weight on "soft" factors was not a solution to minority underrepresentation unless minority students had stronger "soft" qualifications than whites, and the brief argued that "there is not the slightest reason to suppose that [this is the case]; indeed, there is no reason to suppose that such subjective factors are distributed on other than a random basis among applicants of different races." Id. at 34. This is an overstatement, since certainly measures of socioeconomic disadvantage, for example, are not distributed randomly across racial groups; but it is surely true that no "super-index," based on both academic and nonacademic factors, could select minorities as efficiently, and with so little overall academic cost, as separate admissions tracks. See Sander, supra note 5.
57. AALS Bakke Brief, supra note 39, at 22-27.
58. Id. at 2. The brief went on to quantify this claim with some specific estimates: if all law schools used race-neutral criteria, black enrollment would fall by 60% to 80% and Chicano enrollment would fall by 40% to 70%. See id. at 28.
59. The estimates were based on comparisons of the LSAT and undergraduate GPA (UGPA) distributions of all law school applicants, as documented in Franklin R. Evans, Applications and Admissions to ABA Accredited Law Schools: An Analysis of National Data for the Class Entering in the Fall of 1976, in 3 REPORTS OF LSAC SPONSORED RESEARCH: 1975-1977, at 551. I examine these claims more closely in Part VII.
60. AALS Bakke Brief, supra note 39, at 26.
61. Boalt Hall is the law school of the University of California at Berkeley.
62. AALS Bakke Brief, supra note 39, at 27.
63. Sub rosa literally translates as "under the rose" from Latin, but is used here to mean "in secrecy." See BLACK'S LAW DICTIONARY 1441 (7th ed. 1999).
64. AALS Bakke Brief, supra note 39, at 38 (citation omitted).
65. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 369 (1978) (Brennan, White, Marshall & Blackmun, J.J., concurring in the judgment in part and dissenting in part) (finding that "a state government may adopt race-conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might otherwise have and if there is reason to believe that the disparate impact is itself the product of past discrimination, whether its own or that of society at large").
66. Id. at 413 (Stevens, J., concurring in the judgment in part and dissenting in part) (stating that Title VI of the Civil Rights Act of 1964 "stands as a broad prohibition against the exclusion of any individual from a federally funded program 'on the ground of race'").
67. Id. at 317 (opinion of Powell, J.).
68. WELCH & GRUHL, supra note 40, at 63
69. (quoting AM. COUNCIL ON EDUC., ASS'N OF AM. LAW SCH., THE BAKKE DECISION: IMPLICATIONS FOR HIGHER EDUCATION ADMISSIONS 33 (Wayne McCormack ed., 1978) [hereinafter ACE-AALS]).
70. Id. (quoting ACE-AALS, supra note 55, at 21).
71. Id. at 6.
72. Id. at 131-32.
73. Id. at 61, 75.
74. Id. at 70-71.
75. Am. Bar Ass'n, Minority Enrollment 1971-2002, supra note 10.
76. WELCH & GRUHL, supra note 40, at 76-77.
77. Report from the UCLA Law School Admissions Task Force, 1978-79, to the Faculty (Nov. 21, 1978) (on file with author).
78. Enrolled "Minority Group" students as a percentage of total enrollment at UCLA went from 23% in 1978 to 31% in 1982. Compare SECTION OF LEGAL EDUC. & ADMISSION TO THE BAR, AM. BAR ASS'N, A REVIEW OF LEGAL EDUCATION IN THE UNITED STATES, FALL 1978, LAW SCHOOLS & BAR ADMISSION REQUIREMENTS 9 (1979),
79. with SECTION OF LEGAL EDUC. & ADMISSION TO THE BAR, AM. BAR ASS'N, A REVIEW OF LEGAL EDUCATION IN THE UNITED STATES, FALL 1982, LAW SCHOOLS & BAR ADMISSION REQUIREMENTS 6 (1983). I return to the operation of UCLA's diversity system in Part II.
80. One distinguished constitutional scholar has suggested to me that shifting from obvious quotas to "invisible" weightings of diversity factors was Justice Powell's real objective all along. In a similar vein, another prominent constitutional scholar suggested to me that Justice O'Connor similarly cared deeply about schools engaging in a ritual of individualized assessment even if the results were identical to those produced by numerical formulas. These observations remind me of a creationist argument I once heard to the effect that God created fossils to fool skeptics into believing in evolution - not a logically impossible argument, but a hard view for an empiricist like me to address.
81. Boalt's consent agreement and a description of the offending admissions procedures are contained in its report to the U.S. Department of Education's Office of Civil Rights. RACHEL F. MORAN ET AL., STATEMENT OF FACULTY POLICY GOVERNING ADMISSION TO BOALT HALL AND REPORT OF THE ADMISSIONS POLICY TASK FORCE (1993).
82. WELCH & GRUHL, supra note 40, at 154. For example, at the University of Texas, minority applicants were first considered by a special minority subcommittee, which would then offer its recommendations to the full admissions committee. By 1992, minority applicants were no longer selected by the full committee - the minority subcommittee simply delivered its report to the full committee, which chose the number of minorities to admit, but left the individual admissions decisions up to the subcommittee. See the district court opinion in Hopwood v. Texas, 861 F. Supp. 551, 558-60 (W.D. Tex. 1994), rev'd, 78 F.3d 932 (5th Cir. 1996).
83. For one of the few comparatively candid discussions of law school affirmative action in the post-Bakke era, see Leo M. Romero, An Assessment of Affirmative Action in Law School Admissions After Fifteen Years: A Need for Recommitment, 34 J. LEGAL EDUC. 430 (1984).
84. An associate dean of Washington University School of Law claimed that "[t]est scores and grades are weighed heavily for admission to the [law school]" and that "[r]ace, gender, age and family background come into play when students are borderline." Lorraine Kee, Debate Rages over Affirmative Action, ST. LOUIS POST-DISPATCH, Sept. 21, 1997, at 01A. Ronald Hjorth, former dean of the University of Washington School of Law, once denied that his school "maintain[s] a quota, saying instead that race is merely used as a 'plus factor' in admissions decisions, considered as part of an applicant's 'background and life experiences' that may add diversity to the student body."
85. Robyn Blummer, Law School Dean Runs from the Truth, ROCKY MOUNTAIN NEWS (Denver, Colo.), Sept. 11, 1998, at 75A.
86. Total first-year enrollment figures for ABA-approved law schools for the years 1947-2002 are available from the ABA at Am. Bar Ass'n, First Year Enrollment in ABA Approved Law Schools 1947-2002 (Percentage of Women), at http://www.abanet.org/legaled/statistics/femstats.html (last visited Nov. 22, 2004) [hereinafter Am. Bar Ass'n, First Year Enrollment].
87. First-year enrollment figures for blacks from 1971-2002 are also available from the ABA in Am. Bar Ass'n, Minority Enrollment 1971-2002, supra note 10.
88. See Am. Bar Ass'n, First Year Enrollment, supra note 70.
89. On these last two points, see infra Table 8.1.
90. Blacks accounted for 3744 out of 5568 nonwhites enrolled in any year of law school in 1971, 8149 out of 19,410 nonwhites in 1991, and 9412 out of 26,257 nonwhites in 2001. Am. Bar Ass'n, Minority Enrollment 1971-2002, supra note 10.
91. In 1970, there were fewer than three million nonwhite immigrants (including Hispanics) in the United States. U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES: 1981, at 34 tbl.40 (1981). By 1999 that number had risen to over nineteen million.
92. U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES: 2001, at 44 tbl.43 (2001) [hereinafter 2001 CENSUS STATISTICAL ABSTRACT].
93. In 1970, the U.S. Department of Education's Office for Civil Rights counted 102,788 "Spanish-surnamed" students enrolled in all American undergraduate colleges and universities. BROWN ET AL., supra note 18, at 17.
94. In 1999, there were 1,300,000 Hispanics enrolled in college, an increase from 2% to 8% of the total student population. 2001 CENSUS STATISTICAL ABSTRACT, supra note 74, at 168 tbl.268.
95. See supra note 17. The percentage of doctoral degrees in the physical sciences received by Asians declined somewhat, from 6.9% to 6.6%, between 1980 and 1990. NAT'L CTR. FOR EDUC. STATISTICS, DIGEST OF EDUCATION STATISTICS 2002, at 347 tbl.303 (2003). The percentage of engineering degrees granted to Asians declined from 20% to 17.4%. Id. at 354 tbl.300. Over the same period of time, the percentage of law degrees awarded to Asian students increased from 1.1% to 2.3% (a 112% increase).
96. Am. Bar Ass'n, Minority Degrees Awarded, supra note 13.
97. More informal evidence comes from Arthur S. Hayes, Asians Increase at Big Firms, NAT'L L.J., Dec. 18, 2000, at Al ("Asian-American lawyers say that their disproportionately large numbers at IP firms reflect the choice of more second- and third-generation Asian-Americans to pursue careers outside engineering and science.").
98. The Center for Individual Rights provided funding and staff support for all three lawsuits, according to David B. Wilkins, From "Separate Is Inherently Unequal" to "Diversity Is Good for Business": The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar, 117 HARV. L. REV. 1548, 1551 (2004).
99. Public law schools were more attractive targets for several reasons. First, they were under clear constitutional as well as statutory (Title VI) bans on discriminatory practices; second, they were covered by state "freedom of information acts" (FOIAs) that made it easier to do data reconnaissance before filing suit; and third, there was more public hostility to the use of preferences by public universities than by private ones.
100. Hopwood v. Texas, 861 F. Supp. 551, 553-54, 578-79, 582 (W.D. Tex. 1994), rev'd, 78 F.3d 932 (5th Cir. 1996).
101. Hopwood v. Texas, 78 F.3d 932, 944-46 (5th Cir. 1996). The court also found that the school's admissions program went well beyond what would be justified under Powell's diversity rationale even if that still applied.
102. Texas v. Hopwood, 518 U.S. 1033 (1996). Justice Ginsburg's concurrence with the denial of certiorari argued that because the 1992 admissions policy contested in Hopwood was no longer being used by the law school, there was no live issue to rule on; she distinguished between the Fifth Circuit's judgment, which found the 1992 policy to be in violation of the Fourteenth Amendment, and the Fifth Circuit's rationale, which rejected the use of race in admissions when based on a diversity rationale, and reminded the petitioners that the Court "reviews judgments, not opinions." Id. (Ginsburg, J., concurring in the denial of certiorari) (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).
103. 233 F.3d 1188 (9th Cir. 2000).
104. Id. at 1196, 1200-01.
105. Smith v. Univ. of Wash. Law Sch., 532 U.S. 1051 (2001) (denial of certiorari).
106. Smith, 233 F.3d at 1192-93.
107. Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003).
108. Grutter v. Bollinger, 137 F. Supp. 2d 821, 847, 849, 872 (E.D. Mich. 2001), rev'd, 288 F.3d 732 (6th Cir. 2002), aff'd, 539 U.S. 306 (2003).
109. Id. at 853, 872.
110. Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002), aff'd, 539 U.S. 306 (2003).
111. Grutter, 539 U.S. 306; Gratz, 539 U.S. 244.
112. Grutter, 539 U.S. at 325.
113. Id. at 337.
114. Gratz, 539 U.S. at 270.
115. Grutter, 539 U.S. at 315-16.
116. See id. at 337 (equating the law school's "race-conscious admissions program" with the Harvard plan Justice Powell approved of in Bakke, and noting that both "adequately ensure[] that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions").
117. See id. at 343 ("We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.").
118. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 288-89 (1978) (opinion of Powell, J.) (finding the "semantic distinction" between a goal and a quota to be "beside the point" because "[t]he special admissions program is undeniably a classification based on race and ethnic background"); id. at 374 (Brennan, White, Marshall & Blackmun, JJ., concurring in the judgment in part and dissenting in part) ("True, whites are excluded from participation in the special admissions program, but this fact only operates to reduce the number of whites to be admitted in the regular admissions program in order to permit admission of a reasonable percentage . . . of otherwise underrepresented qualified minority applicants."); id. at 412 (Stevens, J., concurring in the judgment in part and dissenting in part) ("The University, through its special admissions policy, excluded Bakke from participation in its program . . . because of his race.").
119. See id. at 369 (Brennan, White, Marshall, & Blackmun, JJ., concurring in the judgment in part and dissenting in part) (finding that "a state government may adopt race-conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might otherwise have and if there is reason to believe that the disparate impact is itself the product of past discrimination, whether its own or that of society at large").
120. See id. at 413 (Stevens, J., concurring in the judgment in part and dissenting in part) (finding that Title VI of the Civil Rights Act of 1964 "stands as a broad prohibition against the exclusion of any individual from a federally funded program on the ground of race") (quotation marks omitted) (emphasis omitted).
121. Grutter, 539 U.S. at 383 (Rehnquist, C.J., dissenting). For all three groups, the admitted members as a percentage of admittees never diverged by more than one percent from the applicant members as a percentage of applicants over the six admissions cycles from 1995 to 2000. See id. at 383-84, tbls.1-3.
122. Id. at 383 (quoting id. at 330 (opinion of the Court)).
123. Id. at 389 (Kennedy, J., dissenting).
124. Id. at 361 (Thomas, J., dissenting).
125. Gratz, 539 U.S. at 295-98 (Souter, J., dissenting).
126. Id. at 305 (Ginsburg, J., dissenting).
127. I base this claim on analyses of raw 2002 and 2003 admissions data from eight law schools, which I secured through FOIA requests. Logistic regression analysis of admissions outcomes suggests that something close to a 60/40 relative weight of LSAT and UGPA is quite common.
128. This approach of graphing the admissions probabilities of blacks and whites by academic index has been used by a number of scholars studying affirmative action, including Bowen and Bok as well as Kinley Larntz (a plaintiff's expert in the Michigan cases). See BOWEN & BOK, supra note 2, at 27; Fourth Supplemental Expert Report of Kinley Larntz, Ph.D. at 25-33 figs.3-10, Grutter v. Bollinger, 137 F. Supp. 2d 821, 847, 849, 872 (E.D. Mich. 2001) (No. 97CV75928-DT).
129. Grutter, 539 U.S. at 334 (opinion of the Court).
130. Id. at 337.
131. See id. at 334; Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 317 (1978) (opinion of Powell, J.).
132. The data in Justice O'Connor's concurrence can be found in Gratz v. Bollinger, 539 U.S. 244, 277-78 (2003) (O'Connor, J., concurring).
133. For college applicants, the formula would be Index = [(Combined SAT - 400)/2] + 100 * High School GPA, with GPA measured on a 4.0 scale.
134. Note, too, that our law school data is not broken down by state residency. Since the law school apparently counts Michigan residency for something, and this something would account for part of the limited attention given to nonacademic factors, this leaves even less scope for nonracial "diversity" factors.
135. For more on logistic regression, see supra notes 189-191 and accompanying text.
136. Even if these other diversity factors are highly correlated with academic credentials, academic credentials should have less explanatory power in this part of the sample than they would otherwise, and this would be reflected in the Somers's D.
137. This picture is a slight oversimplification, in two respects. First, the "Asian track" became more complex and nuanced as the size and strength of the Asian admissions pool increased in the late 1980s and early 1990s. Japanese, Chinese, and Korean applicants gradually received less of a preference, while Asians from the Philippines and Southeast Asia continued to receive substantial preferences and be viewed as underrepresented minorities. Second, the segregation of admissions decisions by race coexisted with overall comparisons of racial pools. In a given year, the Hispanic pool might be particularly strong and the black pool particularly weak, so more Hispanics and fewer blacks than usual would be admitted. But these cross-racial comparisons were between groups, not individuals.
138. One of the seven law schools that responded thoroughly to our FOIA request was Michigan's. It is interesting to note that in quantitative terms, the University of Michigan Law School was less rigidly bound by quantitative factors in its 2002 and 2003 admissions than it was in 1999 (and several earlier admissions cycles I studied). A regression of white admissions at Michigan shows a Somers's D of .80 in 2002 and .82 in 2003 - among the lowest rates of all the schools I studied. Dean Evan Caminker told me that, at least since he became aware of the admissions process several years ago, the school has not used any formal academic index in admissions and has strived to implement the holistic practices it advertised in the Grutter litigation. This notwithstanding, the law school's black admissions are still overwhelmingly driven by numbers (Somers's D of .90 in 2002 and 2003) and it is still not possible to explain the school's racial pattern of admissions without assuming that race is given decisive weight for most matriculating blacks.
139. Despite my repeated suggestions that law schools engage in pervasive public dissembling about how their admissions systems operate, I would like to offer a word in defense of admissions officers. The numeric part of what they do - sorting applicants by race and index number, admitting the stronger and rejecting the weaker ones within each group - takes very little time, even if it ultimately accounts for ninety percent of their admissions decisions. The vast majority of an admissions director's time is spent reviewing the relatively small number of intermediate cases, as well as screening out the tiny minority of high-number applicants who will be rejected and the equally small number of low-number applicants who will be admitted. From their perspective, engaging in a "holistic appraisal" of applicants is central to their job. Admissions offices also frequently spend a great deal of time and effort on minority outreach, perhaps reasoning that the larger the applicant pool from which they can draw, the smaller the numeric boost they will have to give minority applicants to achieve the requisite racial diversity.
140. BOWEN & BOK, supra note 2, at 15. This statement certainly does not apply to law schools, the vast majority of which do use selective admissions. I doubt that it is true even for undergraduate schools. Peterson's Guide to Four-Year Colleges (one of the sources cited by Bowen and Bok) ranks colleges by admissions selectivity. Seventy-five percent of all colleges place themselves in the top three categories ("most difficult," "very difficult," and "moderately difficult"); if the colleges are accurately describing their policies, these are all selective institutions.
141. See PETERSON'S GUIDE TO FOUR-YEAR COLLEGES 1998, at 51-56 (28th ed. 1997);
142. see also BOWEN & BOK, supra note 2, at 15 n.1.
143. Even if the "twenty to thirty percent" claim were true, it would be a highly misleading statistic. There are some three thousand colleges in the United States, but a great many of these are small and local and/or only grant intermediate degrees. A relatively small number of colleges and universities account for a large share of those seeking graduate education. A mere one hundred college-level institutions - about 3% of the total - account for about 40% of all law school applicants; the top two hundred feeder institutions - about 6% of the total - account for 55% of law school applicants. See LAW SCH. ADMISSION COUNCIL, NATIONAL STATISTICAL REPORT 1997-98 THROUGH 2001-02, at A-13 (2003).
144. Grutter v. Bollinger, 539 U.S. 306, 361-62 (2003) (Thomas, J., dissenting) (citation omitted).
145. Medical schools widely use interviews in evaluating candidates, a luxury they can afford because of their high faculty-student ratios. Business schools frequently require and assess evidence of real-world organizational or business experience. Graduate schools in the arts and sciences rely heavily on letters of recommendation (which are more meaningful since the network of recommenders is relatively small and specialized) and assessments of prior written and research work - again, a more subjective process that is facilitated by smaller numbers of applicants.
146. See Part IV for a substantial elaboration of this point. See too my discussion in the Conclusion about improving admissions methods; my own research suggests that we can and should diversify admissions criteria in law schools beyond the traditional LSAT and UGPA, so long as we can properly validate new methods.
147. In their analysis of law school ranking by U.S. News and World Report, Stephen Klein and Laura Hamilton find that even by itself, the student selectivity factor explained about 90% of the differences in overall ranks among schools (i.e., percent of total variance). Since LSAT is the major driver of student selectivity (and is highly correlated with UGPA), ranking schools on LSAT alone will do a very good job of replicating the overall ranks U.S. News publishes.
148. Stephen P. Klein & Laura Hamilton, The Validity of the U.S. News and World Report Ranking of ABA Law Schools (Feb. 18, 1998), at http://www.aals.org/validity.html (last visited Nov. 22, 2004) (on file with author).
149. Russell Korobkin, In Praise of Law School Rankings: Solutions to Coordination and Collective Action Problems, 77 TEX. L. REV. 403, 409-10 (1998).
150. As we shall see in Part VII, the job market for graduates takes at least as much account of a student's performance in law school as it does of her school's brand name. The point here is that both law schools and students behave as though brand name is transcendently important.
151. For a deeper discussion of the idea that law students and law school deans often behave as though the main purpose of law school is to create a credentialing "signal" to employers, see Mitu Gulati et al., The Happy Charade: An Empirical Examination of the Third Year of Law School, 51 J. LEGAL EDUC. 235 (2001),
152. an expanded version of which was reprinted in 2 NYU SELECTED ESSAYS ON LABOR AND EMPLOYMENT LAW (David Sherwyn & Michael J. Yelnosky eds., 2003).
153. Korobkin, supra note 124, at 408, 414. The LSAC distributes each year, to any accredited law school that asks for it, a "matriculation" report, which shows how the school fared against other schools in competing for students. The data is striking: ninety percent of students admitted to both a tenth-ranked and a fifteenth-ranked school will choose the more elite school.
154. To offer one illustration drawn essentially at random, consider Boalt's 2003 admissions. Boalt assigns each applicant an index (apparently based on UGPA and LSAT); most index figures are between 180 and 260. For whites admitted in 2003 with a Boalt index under 240, 34 of 48 enrolled (71%). For whites with a Boalt index of 250 or higher, 4 out of 107 enrolled (4%). The correlation between an admitted white applicant's index score and his probability of enrolling is -.85. This result emerges from data disclosed by the University of California, Berkeley, in response to a FOIA request; I currently have this data on file.
155. 2004 OFFICIAL GUIDE TO ABA-APPROVED LAW SCHOOLS, supra note 34, at 820;
156. LAW SCH. ADMISSION COUNCIL & AM. BAR ASS'N, THE ABA-LSAC OFFICIAL GUIDE TO ABA-APPROVED LAW SCHOOLS: 2003 EDITION 812 (2002) (reporting Yale's student body as 8.8% African American);
157. LAW SCH. ADMISSION COUNCIL & AM. BAR ASS'N, THE ABA-LSAC OFFICIAL GUIDE TO ABA-APPROVED LAW SCHOOLS: 2002 EDITION 800 (2001) (reporting Yale's student body as 9.7% African American).
158. For the entering class of 2002, for example, the twenty-fifth to seventy-fifth percentile range at Yale Law School was 168-174; the twenty-fifth to seventy-fifth percentile range at Cornell was 164-166. 2004 OFFICIAL GUIDE TO ABA-APPROVED LAW SCHOOLS, supra note 34, at 227, 821. If one could compute an index for each school, incorporating undergraduate grades and college quality, the ranges would be even tighter and would overlap even less.
159. Calculation by the author based on the figures for each school given in 2004 OFFICIAL GUIDE TO ABA-APPROVED LAW SCHOOLS, supra note 34.
160. See Am. Bar Ass'n, Minority Enrollment 1971-2002, supra note 10; Rosenlieb Memorandum, supra note 10.
161. LINDA F. WIGHTMAN, LSAC NATIONAL LONGITUDINAL BAR PASSAGE STUDY (1998) [hereinafter WIGHTMAN, LSAC-BPS].
162. The LSAC sought participation of all U.S. accredited law schools and all students at those schools. Over 160 law schools agreed to participate, and some eighty percent of the first-year students at those schools signed consent forms and completed the initial questionnaire, creating a sample size of over twenty-seven thousand students. See WIGHTMAN, USER'S GUIDE: LSAC NATIONAL LONGITUDINAL DATA FILE 6 (1999) [hereinafter WIGHTMAN, USER'S GUIDE].
163. The sample appears to closely resemble the overall law student population (though since it excludes unaccredited schools, the "bottom" of the law school distribution is underrepresented). Id. at 5. Follow-up surveys were administered to a subsample which overrepresented minority students (to preserve an adequate sample size of different races).
164. Id. at 6. The LSAC-BPS data itself is available on the Internet at Law School Admission Council, Bar Passage Study, http://bpsdata.lsac.org/ (last visited Dec. 3, 2004) [hereinafter LSAC-BPS Data].
165. See WIGHTMAN, LSAC-BPS, supra note 133, at 5 (stating that "[a]mong the 172 U.S. mainland ABA-approved law schools invited to participate in this study, 163 [95%] agreed to do so," and that data from those schools is presented in the study);
166. WIGHTMAN, USER'S GUIDE, supra note 133, at 1-11. The LSAC and Wightman were fairly successful at getting bar outcome data (from law schools and published lists) even when state bars did not cooperate.
167. See WIGHTMAN, LSAC-BPS, supra note 133, at 8.
168. The theory that a cascade effect should exist was deduced by Clyde Summers at the outset of the affirmative action experiment and advanced by him as an important reason why large-scale racial preferences could be self-defeating. Clyde W. Summers, Preferential Admissions: An Unreal Solution to a Real Problem, 1970 U. TOL. L. REV. 377, 401. In the 1980s, Robert Klitgaard elaborated on similar ideas in his remarkable book on admissions.
169. ROBERT KLITGAARD, CHOOSING ELITES 173-75 (1985). Stephen Cole and Elinor Barber refer to similar ideas in their recent book.
170. STEPHEN COLE & ELINOR BARBER, INCREASING FACULTY DIVERSITY: THE OCCUPATIONAL CHOICES OF HIGH-ACHIEVING MINORITY STUDENTS 203-05 (2003).
171. In a forthcoming book, Patrick Anderson and I work through detailed simulations of the distribution of students by race across different school strata, under a variety of admissions scenarios.
172. More detail on this point is available from the author, and will be published in our forthcoming book on affirmative action in law schools.
173. This follows because the admissions standard vis-à-vis blacks does not change at all, so black admissions and matriculations in the first year of the experiment should also remain constant.
174. Klitgaard recognized this phenomenon in Choosing Elites. He even constructed a "yield curve" showing the size of the black-white gap in admissions standards necessary to enroll specified black populations of students. KLITGAARD, supra note 136, at 172-74.
175. Clear examples are provided by Boalt Hall and the University of Texas School of Law, which both saw the number of black matriculants fall to nearly zero after each institution fell under bans on the use of race in admissions (Proposition 209 and Hopwood, respectively). Both schools were able to later raise black enrollments by finding ways around the legal constraints they faced.
176. A recent, well-done example of this point is Roy O. Freedle, Correcting the SAT's Ethnic and Social-Class Bias: A Method for Reestimating SAT Scores, 73 HARV. EDUC. REV. 1 (2003). Freedle finds that when one controls for SAT verbal score, blacks tend to do better on hard verbal questions and worse on easy verbal questions than do comparable whites. He argues plausibly that this is because the hard questions measure book learning while the easy questions measure cultural learning, an area where many blacks have a social disadvantage. In spite of very enthusiastic write-ups of Freedle's work in places like the Atlantic Monthly, it is important to keep two points in mind: Freedle's reconfigured scores close the black-white gap by only about five percent for test-takers at the median black score or higher, and the revised scores do not appear to have yet been validated as superior predictors of college performance.
177. Claude M. Steele & Joshua Aronson, Stereotype Threat and the Test Performance of Academically Successful African Americans, in THE BLACK-WHITE TEST SCORE GAP 401 (Christopher Jencks & Meredith Phillips eds., 1998). Steele and Aronson theorize that the performance of blacks on tests is worse when they perceive those tests to be measures of "intelligence" or "cognitive skills," because they are aware of the general pattern of lower black performance on such tests. Fear of conforming to the "stereotype" decreases their concentration and confidence during the test.
178. For an example of this argument, see David M. White, An Investigation into the Validity and Cultural Bias of the Law School Admission Test, in TOWARDS A DIVERSIFIED LEGAL PROFESSION 66, 129-32 (David M. White ed., 1981).
179. See Karl R. White, The Relation Between Socioeconomic Status and Academic Achievement, 91 PSYCHOL. BULL. 461 (1982),
180. cited in Larry V. Hedges & Amy Nowell, Black-White Test Score Convergence Since 1965, in THE BLACK-WHITE TEST SCORE GAP, supra note 143, at 149, 161 n.14.
181. As I note in the Conclusion, I have little doubt that law schools and other institutions can improve their admissions criteria by developing other validated measures of capacity, but that opinion is not inconsistent with believing that most of the criticisms of the LSAT are greatly overblown.
182. Single-school validation studies can nonetheless be helpful in comparing the performance of groups within a school, or in assessing the effects of other influences on academic performance; they are simply invalid as a way of measuring the total utility of academic measures in predicting academic outcomes.
183. KLITGAARD, supra note 136, at 201 tbl.A1.3.
184. 2 values for subsequent grades: for first-semester GPA, .35; for second-semester GPA, .39; for first-year GPA, .44; for cumulative GPA upon graduation, .44. Note that the predictive power of credentials was as strong for graduation GPA as for first-year GPA.
185. 2 measures the amount of variation in a dependent variable accounted for by multiple independent variable measured simultaneously.
186. KLITGAARD, supra note 136, at 182-86;
187. see also John Monahan, Risk and Race: An Essay on Violence Forecasting and the Civil/Criminal Distinction (2003) (unpublished manuscript, on file with author).
188. Knaplund, Winter, and I have complete data (background data provided by schools as well as questionnaires completed by students) for twenty participating law schools and over four thousand students. This database, known as the 1995 National Survey of Law Student Performance, is available on CD from the author. The overall response rate among first-year students at these schools was seventy-eight percent. Kris Knaplund, Kit Winter & Richard Sander, 1995 National Survey of Law Student Performance CD-ROM [hereinafter 1995 National Survey Data].
189. 2 of .27 when data on studying, participation, etc. was added. See 1995 National Survey Data, supra note 152.
190. One of the earliest and best-known efforts to collect systematic data on the relationship between smoking and life expectancy was published in 1938 by Johns Hopkins biologist Raymond Pearl. If one assigns a large number of nonsmokers, light smokers, and heavy smokers the distribution of life expectancies measured by Pearl, the correlation of the three levels of smoking with life expectancy is -.177, even though the heavy smokers, as measured by Pearl, lived an average of seven years less than the nonsmokers. If one leaves out the category of light smokers (heightening the contrast), the correlation of heavy smoking with life expectancy is -.214. For the original data, see Raymond Pearl, Tobacco Smoking and Longevity, 87 SCIENCE 216 (1938).
191. KLITGAARD, supra note 136, at 89
192. (citing CHRISTOPHER JENCKS ET AL., WHO GETS AHEAD? 57 (1979)).
193. These numbers are from actual simulations with data from 1995 National Survey Data, supra note 152.
194. I selected this area because it comes closest, within the LSAC-BPS data, to representing a single bar (California's), thus minimizing the problem of trying to compare a variety of state bar standards within the same statistic.
195. Admittedly, the sample sizes are small, but one observes similar patterns throughout the bar data. Calculation by the author from LSAC-BPS Data, supra note 133.
196. Indeed, even small differences in numbers are quite powerful when applied to large numbers of people, a point often overlooked by admissions officers and even by the LSAC, which has officially suggested "banding" LSAT scores to avoid giving an undue impression of precision. "Banding" or otherwise placing applicants in broad index categories simply throws information away. One hundred persons with an LSAT score of 161 are highly likely to have higher law school grades and higher pass rates on the bar than one hundred persons with an LSAT score of 160.
197. For example, a methodologically careful study by Donald Powers and Donald Rock found among a large random sample of SAT takers, only twelve percent "attended coaching programs offered outside their schools." DONALD E. POWERS & DONALD A. ROCK, EFFECTS OF COACHING ON SAT I: REASONING SCORES 2 (College Entrance Examination Board, Report No. 98-6) (1998). Whites were significantly underrepresented among coached students, while blacks were mildly overrepresented. Powers and Rock compared a control group of several thousand students who took the SAT twice, without participating in a coaching program, with an experimental group who also took the SAT twice, but participated in a
198. Suppose, for example, that the prep courses were twice as powerful as research suggests - in other words, suppose prepping could increase scores by a quarter of a standard deviation. Suppose further that instead of blacks being more likely to take cramming courses than whites (as the research cited in note 160 finds), whites were twice as likely as blacks to take such courses (say, 16% of whites but only 8% of blacks took the courses). Then the "test prep" disparity could account for 0.25 * 0.08, or 0.02 of a standard deviation in the black-white SAT gap. Since the actual score gap is around one standard deviation, our "prep gap" hypothetical, generous as it is, would explain only 2% of the black-white gap.
199. See, e.g., W.B. Schrader & Barbara Pitcher, Predicting Law School Grades for Black American Law Students, in 2 REPORTS OF LSAC SPONSORED RESEARCH 451 (1976);
200. W.B. Schrader & Barbara Pitcher, Prediction of Law School Grades for Mexican American and Black American Students, in 2 REPORTS OF LSAC SPONSORED RESEARCH, supra, at 715;
201. see generally LAW SCH. ADMISSION COUNCIL, 3 REPORTS OF LSAC SPONSORED RESEARCH (1977).
202. KLITGAARD, supra note 136, at 162-64.
203. I found this pattern in two different data sets. In the 1995 National Survey of Law Student Performance, four of the twenty schools graded legal writing courses in the first semester; for those schools as a whole, the black-white gap was somewhat larger in legal writing classes than in other first-semester courses. The sample size is small, however, and the finding of a greater gap in legal writing classes is not quite statistically significant. Note, too, that for these four schools, most of the fifty-eight blacks in the sample came from a single school. See 1995 National Survey Data, supra note 152. The UCLA Academic Support Dataset, which Kris Knaplund and I used in our studies of academic support, contains data on law student performance over a nine-year period, including legal writing grades for two years, 1990-1991 and 1991-1992. If we compare the black-white grade gap for the 362 whites and 49 blacks in those two classes, the gap is 7.1 points in legal writing classes and 6.2 points in overall first-year averages. (At the time, the UCLA School of Law had a 0 to 95 grading system with a mean of 78 and a standard deviation of between 4 and 5 points.) Again, the larger black-white gap in legal writing classes is almost but not quite statistically significant, which is not surprising given the small sample size. Note that legal writing classes are generally not graded anonymously (as other first-year courses normally are), which introduces the added factor of possible bias. While I would not completely discount the influence of personal biases among professors, I believe that in the generally progressive world of law schools the net effect of bias is unlikely to be a net disadvantage for blacks. The larger point - that the black-white gap is not simply a function of exams involving time-pressure - is further reinforced by the finding in Part V that the black-white grade gap is slightly larger in the second and third years of law school than in the first year. Since upper-year courses in most schools employ a much wider array of evaluative methods (e.g., clinical exercises, seminar papers) than first-year courses, the fact that the black-white gap remains undiminished suggests that the gap is not a mere by-product of timed examinations.
204. My own, unpublished research suggests that a talented young person of any race growing up in a low-to-modest socioeconomic environment has a better chance of reaching the upper-middle class through ordinary capitalism than through a graduate degree, such as a law degree. If this is true, it suggests that a key goal of our public education and university system - to promote opportunity and bring talent to the fore - is not working. For reasons of effectiveness, utility, and fairness, discussed both in this Article and in Knaplund & Sander, supra note 4, simply providing racial preferences in college and graduate school admissions is too simple a fix.
205. For a representative example of this attitude, see BOWEN & BOK, supra note 2, at 280-86.
206. Indeed, I think this theory is undoubtedly true in many contexts. See, e.g., LEONARD S. RUBINOWITZ & JAMES E. ROSENBAUM, CROSSING THE CLASS AND COLOR LINES (2000) (showing the educational benefits to black children whose parents are enabled to migrate from inner-city public housing to suburban school districts).
207. See supra note 133 and accompanying text.
208. The discerning reader may notice that the various n figures in Table 3.2 sum to 155, not to 163. This is because eight of the schools in the LSAC-BPS data were not included in these six clusters. In total, these schools only comprised fewer than two hundred data points out of a data set of over twenty-seven thousand, so their exclusion is not especially troubling.
209. Here, and in other tables of this type, some columns do not sum to 100.0% because of rounding.
210. 2 of .21, standardized coefficients of 0.41 for ZLSAT and 0.25 for ZUGPA).
211. The reader may reasonably wonder why I have used a different data set to test how well entering credentials predict first-year grades. The answer is straightforward: The LSAC-BPS data set standardizes grades for each participating law school, but does not standardize the entering credentials of students according to the law school they attended. Nor does the data set permit the researcher to make such a standardization. Without this standardization, regression results would be meaningless at best and highly misleading at worst. The 1995 National Survey is a smaller database, but all of its variables can be identified by individual law school and the sample size is large enough to provide reliable results.
212. For a more detailed explanation of multiple regression, see Knaplund & Sander, supra note 4, at 208-24.
213. It is true that other researchers have found that black students' grades are lower than predicted by equations using background credentials. Bowen and Bok, for example, found substantial black "underperformance" in elite colleges. BOWEN & BOK, supra note 2, at 76-78, 383 tbl.D.3.6. Such findings are generally due to three factors: (a) the inadequate measurement of background credentials (e.g., Bowen and Bok use very crude measures of high school grades and no measure of high school quality); (b) misspecification of appropriate statistical forms (depending on grading systems, curvilinear functions may be more appropriate than linear ones); and (c) the omission of factors related to affirmative action itself that depress performance (e.g., discouragement). Since my data does not show any net underperformance by blacks, I will not belabor the potential measurement problems that sometimes show up in other data sets.
214. In other words, the data show that if blacks were admitted to law school through race-neutral selection, they would perform as well as whites. As I have noted, there is nonetheless a very large black-white credentials gap among those applying to law school, and this gap does not disappear when one uses simple controls for such glib explanations as family income or primary-school funding. Researchers have made great strides over the past generation in accounting for the black-white gap in measured cognitive skills. The dominant consensus is that: (a) the gap is real, and shows up under many types of measurement; (b) the gap is not genetic, i.e., black infants raised in white households tend to have the same or higher cognitive skills as whites raised in the same conditions; and (c) there are a variety of cultural and parenting differences between American blacks and whites (e.g., time children spend reading with parents or watching television) that substantially contribute to measured skill gaps. On these points, see the excellent essays in THE BLACK-WHITE TEST SCORE GAP, supra note 143, particularly chapters one through five. Jim Lindgren has pointed out that in the National Survey data analyzed in Table 5.2, the "race" coefficients become at least weakly significant (and negative) if one does not include those not reporting race with white students. So far as I can determine (from other data provided by some participating schools), students not reporting race were predominantly white or Asian, which supports the approach taken in this table. In any case, the race effects are still extremely weak. Under any formulation, academic outcomes for all racial groups are dominated by academic credentials, not race.
215. Note that I have renumbered the groups so that numbers descend with eliteness. In the LSAC-BPS codebook, our Group 1 is called "Cluster 5," Group 2 is called "Cluster 4," and so on.
216. See also WIGHTMAN, LSAC-BPS, supra note 133. Two relevant explanatory notes on Table 5.3: (a) even though the black distribution is much more evenly distributed in Group 6 schools, the black percentile distribution is low relative to the percentile distribution of whites because there are a smaller number of whites and they are concentrated in the higher deciles; and (b) the Group 5 schools seem to be more heterogeneous in affirmative action policies, which would explain why there is a concentration of blacks at the high and low ends at those schools.
217. The size of the black-white gap in law school performance closely matches the size of the gap at highly selective undergraduate colleges, as reported by Bowen and Bok in The Shape of the River. They observed that the college grades of black students "present a. . . sobering picture."
218. BOWEN & BOK, supra note 2, at 72. They report that the average class rank of black matriculants was at the twenty-third percentile. Id. I find that the black average percentile at the most elite law schools was at the twenty-first percentile. Of course, averages are raised disproportionately by a few students with very high grades - hence my general reliance on distributions and medians in reporting grade data. The implication of the statistic reported by Bowen and Bok is that the "typical" or "median" black student at elite American colleges has a class rank close to the tenth percentile and is outperformed by 94-95% of the white students.
219. This figure is derived from calculations by the author from LSAC-BPS Data, supra note 133.
220. This figure is derived from calculations by the author from LSAC-BPS Data, supra note 133.
221. Gulati et al., supra note 126, at 239.
222. William Henderson has recently shown that (at least at the two schools he studied) student LSAT scores predict law school performance best on timed, in-class exams; they are significantly poorer predictors of performance when professors use papers or take-home exams. I suspect Henderson is right; indeed, my own data (from 1995 National Survey Data, supra note 152) show a similar pattern. I do not find, however, that the widespread use of timed exams in law schools explains the black-white gap. The data in Table 5.4 provides some indirect evidence on this point; my data on the black-white gap in legal writing classes, (discussed supra note 164), shows even more directly that the gap is as large or larger in nontimed classes. My legal writing samples are small, however, and I believe more research on this point is needed.
223. See William D. Henderson, The LSAT, Law School Exams, and Meritocracy: The Surprising and Undertheorized Role of Test-Taking Speed, 82 TEX. L. REV. 975, 986, 1043-44 (2004).
224. See WIGHTMAN, LSAC-BPS, supra note 133.
225. The unaccredited law schools, most of them located in California, have essentially open admissions and far higher attrition rates, partly because California requires students at unaccredited schools to take a "baby bar" at the end of their first year.
226. The aggregate ABA data for the entering class of 1991 suggests that about 8.7% of that class did not graduate; the LSAC-BPS data suggests that 9.2% of the students in their sample did not graduate, which I take as further evidence of the comprehensiveness and reliability of the LSAC-BPS data. See LSAC-BPS Data, supra note 133. Neither estimate, however, is completely reliable. The ABA data does not track individual students, but merely lets us estimate attrition by comparing the number of graduates for a given year (e.g., 1994) with the number of students entering three years earlier. The LSAC-BPS lost track of some students who dropped out of the study. Moreover, if we include non-ABA schools (which are absent from both data sources), attrition rates are somewhat higher.
227. Calculations by the author from LSAC-BPS Data, supra note 133.
228. The reader should bear in mind that the LSAC-BPS "clusters," from which the six groups used in this analysis are drawn, were not created by the LSAC-BPS investigators simply to measure eliteness. If it were possible to create a more hierarchical ranking with this data, it would presumably show an even stronger association of eliteness with graduation rates.
229. See WIGHTMAN, LSAC-BPS, supra note 133.
230. The square root of the Wald Chi-Square value is comparable to the t-statistic in a linear regression.
231. As in linear regression, "statistical significance" is generally attributed to independent variables with a p-value under .05, but this is somewhat arbitrary. The lower a p-value (and the higher the Wald Chi-Square value), the more likely it is that the association is more than accidental.
232. For example, if 10% of our sample did not complete law school, we could guess any given person's graduation chances with 90% accuracy simply by consistently guessing that each person would graduate. A Somers's D of O in a model for predicting whether a person would graduate would thus indicate a model with that same 90% accuracy rate; a Somers's D of 1 would indicate a model with 100% accuracy; a Somers's D of .645, like the actual model above, would indicate a model with an accuracy of approximately 96.45%.
233. The meaning of the p-value here is analogous to its earlier definition; specifically, it represents the probability that the Wald Chi-Square test statistic would be as high as this or higher, assuming that there is no relationship between the variable in question and likelihood of passing the bar.
234. See WIGHTMAN, LSAC-BPS, supra note 133.
235. A better way of including eliteness as a variable in this regression would be to have a series of dummy variables, each corresponding to a different level of eliteness. But having run such a regression and finding that it produces very similar results, I opted for this simpler regression form to make the results more accessible..
236. The proportion of part-time students in the LSAC-BPS sample is 9.5%. Calculation by the author from LSAC-BPS Data, supra note 133.
237. Admittedly, the LSAC's measure of family income is vague and self-reported. However, if family income were an important factor, we would expect more high-GPA students to drop out, unless the two were very highly correlated.
238. I say this because the Wald Chi-Square value for blacks is short of statistical significance. This is also true if we omit part-time status and family income from the regression. It is possible that multicollinearity between the black dummy variable and one or more of the explanatory variables (particularly law school GPA, as a result of affirmative action) may be affecting the variable's standard error, and therefore lowering its apparent statistical significance. However, this seems unlikely to be a problem for two reasons: First, the sample size is large, which compensates for the potentially reduced power of the estimators. Second, we would not expect multicollinearity to bias the estimators, only to increase their standard errors. In both regressions, to the extent that there is a relationship, it appears that blacks may be more likely to remain in law school than other students with similar characteristics. If so, this strengthens the argument that preferences and the consequent low grades are behind the higher black attrition.
239. Unless, of course, if discrimination against blacks were already reflected in their law school grades, quality of school, family income, etc. However, by far the most influential explanatory variable in predicting graduation rates is a student's law school grades. If blacks were getting lower grades in law school because of discrimination, we would expect the regression represented in Table 5.2 to have a strongly negative value for the black dummy variable; this is not the case. The quality of a student's school is the next most important factor, and affirmative action systematically raises these values. As such, it seems unlikely that there is some sort of animus-based systemic discrimination causing the elevated dropout rates among blacks.
240. See WIGHTMAN, LSAC-BPS, supra note 133.
241. It is true that a few whites are admitted to law schools with index scores below 460, but they are comparatively rare. In the LSAC-BPS database, there are 201 black law students with indices below 460 (11% of all black matriculants), but only 40 white law students (0.2% of all white matriculants). See LSAC-BPS Data, supra note 133.
242. See Table 5.5, supra.
243. In the LSAC-BPS data (mostly for students who graduated in 1994) the first-time pass rate was 88.7%. See LSAC-BPS Data, supra note 133. My own analysis of the first-time bar passage data in the Bar Examiner for the 1994-1995 cycle yielded a lower number: 82.3%.
244. See 1994 Statistics, B. EXAMINER, May 1995, at 7, 12-14. The discrepancy potentially can be explained by underreporting in the LSAC-BPS sample, varying definitions of "first-time" takers, and the exclusion of graduates of nonaccredited law schools (whose considerably lower passage rates significantly decrease California's overall passage rate) in the Bar Examiner data. Recently, however, bar passage rates have been declining throughout the United States. See discussion infra note 286 and accompanying text.
245. The LSAC-BPS data tracked participants' attempts to pass the bar through five bar administrations (summer 1994 through summer 1996).. The proportion of takers passing over this period was 94.8%. Calculation by the author from LSAC-BPS Data, supra note 133. It is likely that some very small number of additional graduates in the cohort passed the bar later.
246. California is widely thought to have the most difficult bar - in 1994-1995 only 74% of first-time takers passed - but this is somewhat misleading, since California permits students from unaccredited law schools to take the bar. Bar-takers from unaccredited law schools accounted for approximately 35% of total bar-takers in California in 1994-1995 and passed the bar at much lower rates. At the other extreme, states such as South Dakota consistently have first-time bar passage rates above 90%. These figures were arrived at by summarizing data presented in issues of the Bar Examiner. See 1994 Statistics, B. EXAMINER, May 1995, at 7, 12, 14;
247. 1995 Statistics, B. EXAMINER, May 1996, at 23, 28, 30.
248. Calculation by the author from LSAC-BPS Data, supra note 133.
249. Calculation by the author from LSAC-BPS Data, supra note 133.
250. It is a testimony to the importance of diversity goals that law school deans across the country accept much lower bar passage rates for their schools - and consequent losses in prestige - because of racial-preference policies.
251. The statistics here are based on data for the July 1998 California bar provided by Sean Pine, Registrar of the UCLA School of Law (on file with author).
252. The meaning of the p-value here is analogous to its earlier definition; specifically, it represents the probability that the Wald Chi-Square test statistic would be as high as this or higher, assuming that there were no relationship between the variable in question and likelihood of passing the bar.
253. See WIGHTMAN, LSAC-BPS, supra note 133.
254. Because the majority of black law students have significantly lower law school GPAs than the average student (recall that the median black student GPA falls between the fifth and sixth percentile for white students' GPAs), one might expect that multicollinearity between these variables would be a significant problem. To a lesser extent, this issue also arises with respect to the LSAT variable, and perhaps with undergraduate GPA as well. However, multicollinearity should only increase the variance of the parameter estimations, not the estimates themselves. In other words, our estimated coefficients should still be accurate, but they may not be as precise. However, in this case this is not a significant problem for two reasons: First, the sample size is quite large, which counteracts the loss in precision from the multicollinearity. Second, the relative size of the coefficients is so different, particularly for the primary trade-off at issue here (Law School Tier versus Law School GPA) that even if some of the estimators were slightly off, it almost certainly would not meaningfully affect any of the subsequent analysis or conclusions.
255. The regression behind Table 6.1 is a robust test of this statement. The same conclusion has been reached by Stephen Klein, of the Rand Institute, in studies of specific bar examinations. See Stephen P. Klein & Roger Bolus, The Size and Source of Differences in Bar Exam Passing Rates Among Racial and Ethnic Groups, B. EXAMINER, Nov. 1997, at 8, 15;
256. cf. Stephen P. Klein, Law School Admissions, LSATs, and the Bar, ACAD. QUESTIONS, Winter 2001-02, at 33.
257. In particular, I found these results are not affected by including other background variables such as part-time status, family income, or parents' education.
258. Summarizing data in tabular form often masks small distortions. Since the overall distribution of blacks by index is lower than the distribution of whites, it is statistically likely that when we categorize blacks and whites by index (as in Tables 6.2 and 5.7), the average index of blacks in each category is a little lower than the average index of whites. Fortunately, this distortion has only a trivial impact on the results I report. In Table 6.2, for example, the average difference between black and white average index scores in each category is under four points.
259. The analysis showed that if black bar-takers had been distributed regionally like whites, there would have been 308 blacks not passing the bar after two attempts, compared to 306 in the actual data; this strongly suggests that the analysis in Table 6.2 is not biased (or, if anything, slightly understates the black-white gap).
260. The Far West region in the LSAC-BPS definition includes California, Hawaii, and Nevada. WIGHTMAN, USER'S GUIDE, supra note 133, at 14. However, California bar-takers account for almost all of that region's total. For example, in 2002, the total number of people taking the California bar accounted for 93% of test-takers in the Far West region.
261. See 2002 Statistics, B. EXAMINER, May 2003, at 6, 6-7.
262. Calculations by author from LSAC-BPS Data, supra note 133.
263. Klein & Bolus, supra note 212, at 15.
264. In other words, consider two students who had similar academic indices when applying to law school. One chooses to attend Vanderbilt, the other chooses the University of Tennessee. If each performs similarly well in law school, as measured by their law school GPA, this theory would suggest that the University of Tennessee student would have a higher expected chance of passing the bar than the Vanderbilt student. In Table 6.1, this would manifest itself in a negative coefficient on the Law School Tier variable. Since the coefficient of tier is, in fact, positive, this suggests that otherwise comparable students will do better on the bar if they graduate from more elite schools, so long as they don't get substantially lower grades at the more elite school.
265. I do not view this evidence as dispositive, since it is likely that differences in academic indices between school tiers understate actual differences in student ability. But the evidence of Table 6.1 at least throws substantial doubt on the idea that students at lower-tier schools have some intrinsic "edge" on the bar.
266. One might argue that had I stuck with German (or lived in Germany), immersion in a difficult environment would have given me a better command of German in the long run than taking German at a local community college. This might be true where withdrawal or disengagement is not an option. This does not seem to be true, however, for blacks benefiting from affirmative action. As we saw in Part V, the grade gap between blacks and whites increases from the first to the third years, despite the operation of other forces (such as taking fewer curved courses and regression to the mean) that should tend to narrow the gap over time. See also Rogers Elliott's analysis of the "'late bloomer' hypothesis," Rogers Elliott et al., The Role of Ethnicity in Choosing and Leaving Science in Highly Selective Institutions, 37 RES. HIGHER EDUC. 681, 695-96 (1996).
267. Clyde Summers, in his 1970 critique of affirmative action, articulated the problem with his usual clarity. Summers, supra note 136, at 392-93. Thomas Sowell articulated the mismatch problem as well and probably played the leading role in getting the idea into general circulation. See Thomas Sowell, The Plight of Black College Students, in EDUCATION: ASSUMPTIONS VERSUS HISTORY 130, 130-31 (1986);
268. see also Paul T. Wangerin, Law School Academic Support Programs, 40 HASTINGS L.J. 771, 779 (1989).
269. For the relation between stress and learning, see B.A. Glesner, Fear and Loathing in the Law Schools, 23 CONN. L. REV. 627, 635 (1991) .
270. For the relation between low performance and stress, see Alfred G. Smith, COGNITIVE STYLES IN LAW SCHOOL 125 (1979)
271. and Robert Stevens, Law Schools and Law Students, 59 VA. L. REV. 551, 656 (1973).
272. See Steve H. Nickles, Examining and Grading in American Law Schools, 30 ARK. L. REV. 411, 431, 476-78 (1977);
273. Michael I. Swygert, Putting Law School Grades in Perspective, 12 STETSON L. REV. 701, 702, 712 (1983).
274. Linda Datcher Loury & David Garman, College Selectivity and Earnings, 13 J. LAB. ECON. 289, 301, 303 (1995).
275. Thomas Kane argues that Loury and Garman's graduation rate findings are due to the inclusion of historically black institutions in the data set, since these colleges traditionally "have low mean SAT scores but high graduation rates." Thomas J. Kane, Racial and Ethnic Preferences in College Admissions, in THE BLACK-WHITE TEST SCORE GAP, supra note 143, at 431, 445.
276. Kane's critique, however, does not address Loury and Garman's hypothesis of GPA as a function of the difference between a student's SAT score and the median SAT score of the institution she attends. Loury & Garman, supra, at 300-01.
277. Audrey Light & Wayne Strayer, Determinants of College Completion: School Quality or Student Ability?, 35 J. HUM. RESOURCES 299, 301 (2000).
278. Elliott et al., supra note 221.
279. Id. at 699.
280. Id.
281. Id. at 701.
282. Id.
283. Id.
284. Id. at 702.
285. Id. at 695.
286. COLE & BARBER, supra note 136, at 187-212 (2003) (discussing the negative effect of academic mismatch on grades, self-confidence, and career aspirations).
287. Id. at 193-200.
288. Id. at 208-09.
289. Id. at 212.
290. 1995 National Survey Data, supra note 152.
291. The proportion of students who reported studying thirty or more hours per week was 57.8% for blacks and 58.6% for whites, and the overall mean value for blacks was slightly higher than for whites; neither difference is statistically significant. Calculation by author from 1995 National Survey Data, supra note 152.
292. We also found that student responses to the "class preparation" question strongly predict grades in the first semester. Calculation by author from 1995 National Survey Data, supra note 152.
293. Stacy Berg Dale and Alan Krueger have completed a study with this design using undergraduate students of all races matched for the schools that admitted them. They were primarily interested in job outcomes, not academic performance, but they found that attending more elite schools did not produce higher payoffs in the job market. Stacy Berg Dale & Alan B. Krueger, Estimating the Payoff to Attending a More Selective College, 117 Q.J. ECON. 1491, 1493 (2002).
294. By "minorities," the authors meant blacks, Hispanics, and Native Americans - the groups that benefit from preferences in Michigan admissions. Lempert et al., supra note 2, at 399.
295. Id. at 496-97. The authors found that law school grades and entering credentials (an index of LSAT and UGPA) did not predict career satisfaction at all. Id. Law school grades were positively associated with income, but they explained less than five percent of the variation in alumni income. Id. at 501. And entering credentials, according to the authors, were actually negatively associated with future income once proper controls were introduced. Id. at 478 tbl.31 (showing a correlation of -.002 in Model 2A).
296. "Indeed, we are confident that neither the white nor minority graduates of schools substantially less prestigious than Michigan will do as well financially as Michigan graduates, and we expect from the literature on the legal profession that they will be less satisfied with their careers." Id. at 503 n.74.
297. My collaborators on AJD are Ronit Dinovitzer, Bryant Garth, Joyce Sterling, Gita Wilder, Terry Adams, Jeffrey Hanson, Bob Nelson, Paula Patton, David Wilkins, and Abbie Willard. We have been actively supported by the American Bar Foundation, the National Science Foundation, the LSAC, the National Association of Law Placement, the Soros Foundation, the Access Group, and the National Conference of Bar Examiners.
298. The LSAC provided the LSAT and UGPA of each person in our sample for whom they had data (about eighty-five percent of all respondents), but expressed the data in terms of standard deviations above or below the mean for the entire sample. We therefore cannot determine any individual's absolute LSAT score or UGPA; we can simply determine how each respondent compared to others in our sample - which, for our statistical purposes, is just as good.
299. The self-reported data do seem to be fairly reliable. I say this because we also asked respondents to tell us their undergraduate GPA, and when we compared this with the data provided by LSAC (which was originally collected from the undergraduate institutions themselves), the correlation was .86.
300. AJD actually includes two samples. The national sample includes just under four thousand attorneys from eighteen primary sampling areas who, in the aggregate, closely resemble the national population of new attorneys in geographic distribution, job type, gender, and race. A minority oversample added some six hundred black, Hispanic, and Asian attorneys from these sampling areas, so that the two samples combined include around four hundred respondents from each of these three major racial/ethnic groups. All participants were selected from lists of persons passing the bar in 2000 in the sampling areas. Of those located, seventy-one percent participated in either mail, phone, or web survey form. For more on the methods and the AJD sample, see Ronit Dinovitzer et al., After the JD: First Results of a National Study of Legal Careers 89-90 (2004), available at http://www.nalpfoundation.org/webmodules/articles/anmviewer.asp?a=87&z=2 (last visited Nov. 22, 2004). Those who are interested in further information on the AJD data should conctact Paula Patton, CEO and President of the NALP Foundation for Law Career Research and Education, at ppatton@nalpfoundation.org [hereinafter AJD Data].
301. There is an interesting prior question: do entering credentials of law students have any long-term predictive value in the job market? Lempert et al. claimed that an index of LSAT and UGPA was actually negatively correlated with the future income of Michigan graduates. See Lempert et al., supra note 2, at 478 tbl.31 (showing a correlation of -0.002 in Model 2A). The AJD data shows that both LSAT and UGPA are correlated with postgraduate earnings. Of course, these credentials are highly correlated with the eliteness of the school students attend, so the correlation may simply be capturing this eliteness effect. When we run a regression similar to that in Table 7.1, controlling for eliteness, LSAT (but not UGPA) is highly predictive of future earnings. AJD Data, supra note 249; see also regression at http://www1.law.ucla.edu/~sander/Data%20and%20Procedures/StanfordArt.htm.
302. I also ran the model without logging income; the results are very similar, but the explanatory power of the model drops a little (as one would expect) and the coefficients are harder to interpret. Moreover, without logging, the influence on the model of those few people with very large salaries becomes unduly great.
303. The data in this table includes income from both salary and bonuses.
304. The measures of market area and school prestige have a surprisingly low correlation of .243 for the AJD respondents. I therefore believe that the high coefficient for market area is, for the most part, not because those markets are dominated by high-prestige jobs, but because of cost-of-living differences. For example, the living expenses for a typical young attorney working in New York City are probably about 14% higher than the expenses of a comparable attorney working in Chicago or Los Angeles.
305. About seventy-five percent of respondents specified a GPA; many of the nonrespondents came from law schools that do not grade on a standard 4.0 scale (e.g., Yale, which uses "low pass," "pass," "honors," and "high honors").
306. When one is attempting to compare outcomes for several mutually exclusive groups (like men and women; north, south, and west; etc.), one leaves out one group (usually the numerically largest group), and that provides an implicit "base" for comparison against all the others. Whites are the excluded group in this model for racial comparisons; women are excluded for gender comparisons.
307. The variable "Other Race" is not a very helpful one. It includes American Indians, multiracial persons, and people of various races who declined to identify themselves racially.
308. This argument makes sense in terms of economic theory. I say in the analysis of bar results in Part VI that going to a more elite school and getting low grades had the net effect of increasing blacks' chances of failing the bar; indeed, it was as if one had lopped over one hundred points off the entering credentials of the typical black student in predicting her bar performance. See supra Table 6.2. If the bar measures something about future job performance that employers value, then a market operating with perfect information should attach lower value to a more elite graduate with bad grades than a somewhat less elite graduate with higher grades.
309. In the actual data, the "top ten" schools had a mean reported GPA of 3.42 in our data, while ten schools pulled from the middle of the distribution had a mean reported GPA of 3.23.
310. See Klein & Hamilton, supra note 123; Korobkin, supra note 124, at 403, 405-07;
311. see also David E. Rovella, A Survey of Surveys Ranks the Top U.S. Law Schools, NAT'L L.J., June 2, 1997, at A1;
312. M.A. Stapleton, Push Is on for Unranked Guide to Schools, CHI. DAILY L. BULL., Jan. 10, 1997, at 3.
313. This is hardly an ideal measure. We don't know the actual mean GPAs at particular schools, and the GPAs we do have are only from those who passed the bar, who participated in our survey, and who answered the question on GPA - all effects that probably bias the mean upward. In addition, the sample sizes for a few schools were small. However, the limitations of this measure are very different from (and do not overlap with) the limits of using raw GPA. So, if similar effects come from this measure, it serves its purpose of providing an effective check.
314. I computed rankings for individual law schools by averaging two other rankings: first, the school's academic reputation among other academics, as measured by U.S. News & World Report in 1997 (the last year, I believe, that U.S. News & World Report published a complete listing of this measure); and second, the school's rank in median student LSAT, as measured by averaging the 25th percentile and 75th percentile LSAT figures reported by law schools for the entering class of 2002-03. 2004 OFFICIAL GUIDE TO ABA-APPROVED LAW SCHOOLS, supra note 34, passim;
315. U.S. NEWS & WORLD REPORT, AMERICA'S BEST GRADUATE SCHOOLS: 1997 EDITION 38-40 (1997). There are many other ways to rank law schools, but the results of these various methods tend to be highly collinear. With this ranking, I assigned the top ten schools to Category I, ranks 11-20 to Category II, ranks 21-40 to Category III, ranks 41-70 to Category IV, ranks 71-100 to Category V, ranks 101-130 to Category VI, ranks 131-160 to Category VII, and the remaining schools to Category VIII, which is used as the "omitted" category in the analysis.
316. This is not a perfect measure of capturing the effect of prestige; I suspect that no single approach can do the job. I do find that a variety of approaches produce substantially the same results that I report here - the trade-off of eliteness for lower grades is a negative for blacks across much of the range of schools, but is probably a net positive at the very top schools.
317. It is particularly relevant to note that, in these more complex regressions, the earnings premiums for blacks (7% to 9%) and men (3% to 5%) are still statistically significant; no premium or penalty is apparent for any of the other ethnic groups.
318. The parameter estimate for Tier 1 is 0.404 and for Tier 3 it is 0.194; the difference is 0.21, which corresponds to a 21% difference in earnings.
319. Like a number of the ideas that I thought were original at the outset of this project, the effect I describe in this part - lower grade performance offsetting the labor market value of a more elite school - was anticipated and demonstrated by others. Linda Datcher Loury and David Garman, using the National Longitudinal Study, find a very similar pattern for college students benefiting from affirmative action. See Linda Datcher Loury & David Garman, Affirmative Action in Higher Education, 83 AM. ECON. REV. 99 (1993).
320. Along similar lines, see Dale & Krueger, supra note 242.
321. The ABA, in its brief for the respondents in Grutter, argued that "the reduction in minority enrollment that would result from an abandonment of the policies embraced by Bakke, as evidenced by recent experience in Texas and California, would undo much of what has been accomplished in the last several decades." Brief of Amicus Curiae American Bar Association at 20, Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241), available at http://supreme.lp.findlaw.com/supreme_court/docket/2002/april.html (last visited Nov. 22, 2004). Similar claims were made in the briefs submitted by the American Law Deans Association and the AALS.
322. See Brief of Amicus Curiae American Law Deans Association at 5, Grutter, 539 U.S. 306 (No. 02-241), available at http://supreme.lp.findlaw.com/ supreme_court/docket/2002/april.html (last visited Nov. 22, 2004);
323. Brief of Amicus Curiae Association of American Law Schools at 3, Grutter, 539 U.S. 306 (No. 02-241), available at http://supreme.lp.findlaw.com/supreme_court/docket/2002/april.html (last visited Nov. 22, 2004).
324. Grutter, 539 U.S. 306.
325. Brief of Amicus Curiae Law School Admission Council at 9-10, Grutter, 539 U.S. 306 (No. 02-241), available at http://supreme.lp.findlaw.com/supreme_court/docket/2002/ april.html (last visited Nov. 22, 2004).
326. Black applications to Boalt fell by 36% from 1996 to 1997, the year Proposition 209 took effect. Black applications to all UC law schools fell by 31% over the same period, while total white applications declined by only 3%. Data Mgmt. & Analysis Unit, Univ. of Cal. Office of the President, University of California Law and Medical Schools Enrollments, http://www.ucop.edu/acadadv/datamgmt/lawmed/ (last visited Dec. 2, 2004).
327. Evans, supra note 46.
328. Id. at 602 tbl.15.
329. This method could underestimate actual black admissions. It might well be that blacks with, say, an index of 650 have more impressive records of leadership, community service, or other qualities than do whites with an index of 650, because the black applicants with those indices stand much higher academically relative to other blacks than is the case with whites. Since schools take such matters into account at the margin, we would expect blacks to have slightly higher admissions rates, within any box of the grid, under a race-blind system.
330. See Evans, supra note 46, at 609 tbl.17, 612. Note that this figure, unlike some cited in Part II, includes the historically black law schools.
331. Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admissions Decisions, 72 N.Y.U. L. REV. 1, 2 (1997) [hereinafter Wightman, Threat to Diversity].
332. Wightman's article contained a parallel analysis calculating the proportion of blacks who would be admitted to the schools they applied to in 1991 if no racial preferences had been in effect. See id. at 6. This second approach produces more catastrophic results (which have received far more attention),
333. see id. at 14-18, but these results are nonsensical for the reasons discussed at the beginning of this Part.
334. See id. at 22 tbl.5.
335. This claim is based on a comparison of Evans, supra note 46, at 582 tbl.3, 599 tbl.12
336. and Wightman, Threat to Diversity, supra note 274, at 22 tbl.5.
337. Linda Wightman, The Consequences of Race-Blindness: Revisiting Prediction Models with Current Law School Data, 53 J. LEGAL EDUC. 229, 229 (2003) [hereinafter Wightman, Race-Blindness].
338. Note that the black proportion of total applicants did not improve as dramatically, since the numbers for other nonwhite groups were rising too, but the white number is important because it shapes the size of the preference.
339. The 2001 data is from the LSAC's National Statistical Report, which has slightly higher total numbers than Wightman - Wightman does not present enough data in her article to make direct comparisons possible.
340. See WIGHTMAN, LSAC-BPS, supra note 133.
341. Black graduation rates and bar passage rates would still be somewhat lower than white rates in a race-blind system, simply because the average credentials of blacks (in the system as a whole, not at individual schools) would still be lower than those of whites. But something like three-quarters of existing disparities would disappear.
342. Twenty-nine percent of this group passed the bar within five attempts. Calculations by author from LSAC-BPS Data, discussed supra note 133.
343. See supra Part II.
344. For data on enrollment by race at ABA law schools, see Am. Bar Ass'n, Minority Enrollment 1971-2002, supra note 10. My attrition statistics compare black first-year enrollment in 1991 and 1999 with third-year enrollment two years later.
345. This data is compiled from the Bar Examiner, which publishes bar passage statistics for the past year in each May's issue. The data is for all first-time bar-takers in the summer and winter administrations for 1994-1995 and 2002-2003.
346. See State Bar of Cal., Examination Results/Statistics at http://calbar.ca.gov/state/calbar/calbar_generic.jsp?sImagePath= Examination_Results_Statistics.gif&sCategoryPath=/Home/About%20the%20Bar/ Bar%20Exam&sHeading=Examination%20Results/Statistics& sFileType=HTML&sCatHtmlPath=html/Admissions_Old-Statistics.html (last visited Nov. 3, 2004).
347. Calculation by the author from AJD Data, supra note 249.
348. Calculation by the author from LSAC-BPS Data, supra note 133.
349. Dinovitzer et al., supra note 249, at 73 tbl. 10.1.
350. According to AJD data, aid from law schools covered only 5% of the law school expenses of Hispanics in the Class of 2000, but 14% of the law school expenses of blacks. Id. The size of the Hispanic cohort matriculating in law school in the fall of 2001 was equal to 3.4% of the number of Hispanics graduating from college that year; the comparable figure for blacks was 3.1%. See U.S. CENSUS BUREAU, supra note 11, at 191;
351. Am. Bar Ass'n, Minority Enrollment 1971-2002, supra note 10. And, in one of the few available studies on this point, the median parental income for Hispanic applicants to one major law school in 1997 was $31,000, compared to $38,000 for black applicants.
352. Sander, supra note 5, at 494.
353. The "as a whole" qualifier is important. None of the empirical claims applies to every black individually - indeed, we can empirically demonstrate that there are exceptions. Some blacks are not direct beneficiaries of preferences; some buck the odds and excel academically. But since affirmative action policies treat blacks as a single group, we can only sensibly analyze the aggregate effects of those policies by examining consequences on blacks as a whole.
354. Such goals, of course, would be floors, not ceilings; schools should not limit their admission of black candidates who satisfy the standards applied to other students.