For more than three decades, supporters of affirmative action have argued that racial preferences in higher education were absolutely vital if blacks and other minorities were to obtain college and professional degrees. In July 2003, the U.S. Supreme Court seemed to agree, at least with respect to law school admissions at the University of Michigan.
Writing for the majority in Grutter v. Bollinger, Justice Sandra Day O'Connor said, "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified members of every race and ethnicity," approving the use of explicit racial preferences to do so. "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," she wrote in the 5-4 decision.
A new study, however, debunks the myth that those preferences are necessary even now, providing stunning evidence that affirmative action may actually hurt the chances of blacks to obtain their law degrees.
Richard H. Sander, a law professor at UCLA and a self-described Democrat and lifelong supporter of affirmative action, has recently completed the most comprehensive look ever at the effect of affirmative action on the academic achievement of black law students. The study appears in the November issue of Stanford Law Review. Looking at the performance of black and other students at 21 law schools in the mid-1990s, Sander notes in the introduction to his study, "there has never been a comprehensive attempt to assess the relative costs and benefits of racial preferences in any field of higher education."
Sander focuses on what he describes as the "costs" and "benefits" of affirmative action to blacks. He is less concerned about the harm such programs may do to better-qualified white and Asian students who have been passed over in the admissions process than he is about what happens to the less-qualified black students who are admitted in their place. He argues that his data demonstrate that blacks are harmed by the very programs aimed at helping them. Most black applicants, he writes, "end up at schools where they will struggle academically and fail at higher rates than they would in the absence of preferences. … Perhaps, most remarkably, a strong case can be made that in the legal education system as a whole, racial preferences end up producing fewer black lawyers each year than would be produced by a race-blind system."
Among first-year law students, Sander reports, 52 percent of blacks earn grades that put them in the lowest 10 percent of their class. Only 8 percent of blacks earn grades in the top half of their class. And their performance does not improve with time. About 19 percent of black students in this study dropped out without completing law school, compared with 8 percent of white students. Of those who completed law school, however, about half continued to earn grades that put them at the bottom 10 percent of their class. Consequently, only about 45 percent of black law school graduates pass their bar exams on their first attempt, compared with about 80 percent of white graduates.
Sander estimates that if black students were admitted through a race-blind process, so that their skills were properly matched to the schools' own admissions criteria, far more black students would do well, graduate and pass the bar. He estimates that the end of racial preferences could end up producing nearly 10 percent more black lawyers.
My own Center for Equal Opportunity has published studies of 57 public colleges and universities and nine professional schools revealing the extent of racial preferences, which are both wide and deep -- affecting not only the most elite schools but even less competitive colleges, and providing a very substantial advantage in admissions to blacks and to somewhat less extent, Latinos. We've shown that, judging from their tests scores and grade point averages, black students, in particular, are often admitted to schools for which they are poorly prepared, and we've reported that they are less likely to graduate from these schools. But we've seldom had access to data to show how they performed while in school. Prof. Sander has now provided that data -- and the picture it paints are gloomy indeed.
Racial preferences not only harm whites and Asians who are passed over for admissions to colleges and professional schools in favor of less qualified blacks and Latinos, they do real harm to the very students they were intended to help.