Costs vs. benefits of affirmative action in legal education

Frank Cross crossf at mail.utexas.edu
Sat Nov 6 14:51:23 PST 2004


The implications of the Sander study for constitutional doctrine are 
interesting. If affirmative action is justified by the benefit to the 
minority recipients, the study seems obviously significant.  It is surely 
foolish to ignore the consequences of one's actions, and such consideration 
has the pedigree of Brown.

If affirmative action is justified on diversity grounds, though, as the 
present fad, the implications are somewhat different.  One might argue that 
the diversity benefits remain.  Of course, this would imply sacrificing the 
interests of the minority recipients to the overall benefit, which 
presumably inures primarily to whites.  That might seem odd, sacrificing 
the interests of the underprivileged group to benefit the more 
privileged.  However, the recipients of the affirmative action program are 
voluntary.  No one forces these students to go to the top schools.

Indeed, this is the strange thing about the Sander study, at least from the 
perspective of an economist.  Why would black students willingly subject 
themselves to failure at higher ranked schools, when they could thrive at 
schools with a lower ranking?  Perhaps they are simply uninformed.  But 
perhaps the Sander study has failed to capture some benefit that those 
students receive from attending the schools of higher rank.


At 04:16 PM 11/6/2004, Paul Horwitz wrote:
>I quite agree that the results are contestable, and very much look forward 
>to the empirical debate.  I'm still curious -- ASSUMING that affirmative 
>action in legal education is both good for legal education as a whole and 
>bad, in terms of long-term outcomes, for black law students, does this 
>alter anyone's constitutional and/or policy intuitions on the question?
>
>Best,
>
>Paul Horwitz
>Associate Professor of Law
>Southwestern University School of Law
>Los Angeles, CA
>
>----- Original Message -----
>From: Kim Scheppele
>Sent: Saturday, November 06, 2004 12:27 PM
>To: CONLAWPROF at lists.ucla.edu
>Subject: Re: Costs vs. benefits of affirmative action in legal education
>
>I understand that Prof. Horwitz is raising important policy issues of
>relevance to the listserv in his post.  But insofar as this is an argument
>resting on empirical evidence, the listserv should know that most of
>Sander's statistical work has been challenged in a response by David
>Chambers Timothy Clydesdale, William Kidder, and Richard Lempert.   They
>conclude, among other things, that many of Sander's empirical findings are
>not sustainable on the evidence he uses.  Their article can be found on the
>web at: http://www.lsacnet.org/response/Sander-public-version-3.pdf.
>
>best
>kim
>
>Kim Lane Scheppele
>John J. O'Brien Professor of Comparative Law and Professor of Sociology
>University of Pennsylvania Law School
>On sabbatical during 2004-2005 at:
>Law and Public Affairs Program
>Woodrow Wilson School
>415 Robertson Hall
>Princeton, NJ 08544
>Phone:  (609) 258-6949
>Email:  kimlane at law.upenn.edu
>
>
>----- Original Message -----
>From: "Paul Horwitz" <phorwitz at hotmail.com>
>To: <CONLAWPROF at lists.ucla.edu>
>Sent: Friday, November 05, 2004 6:57 PM
>Subject: Costs vs. benefits of affirmative action in legal education
>
>
> > As readers of Prof. Volokh's blog know, his colleague, Richard Sander, has
> > an article forthcoming in the Stanford Law Review entitled "A Systemic
> > Analysis of Affirmative Action in American Law Schools"; a link to the
>paper
> > is available on his Web page and on the Volokh Conspiracy blog, on which
> > Prof. Sander will be appearing over the next week.  It raises questions of
> > obvious interest to this listserv, and I want to pose one such question
>here
> > in the hope of inviting debate.
> >
> > Sander begins by suggesting that although the post-Bakke rationale for
> > affirmative action in education has focused on the enriching effects of a
> > diverse classroom, "the overriding justification for affirmative action
>has
> > always been its impact on minorities.  Few of us would enthusiastically
> > support preferential admission policies if we did not believe they played
>a
> > powerful, irreplaceable role in giving nonwhites in American access to
> > higher education, entree to the national elite, and a chance of correcting
> > historic under representations in the leading professions."  He also
>argues,
> > however, that sustained study of the data suggests, in a nutshell (it's a
> > long paper) that the "system of racial preferences [in law schools] . . .
> > produces more harms than benefits for its putative beneficiaries."
> >
> > The question I want to pose, which relates strongly to the first quote
>from
> > Sander provided above, is this.  Suppose two assertions are both true:
> >
> > (1)  Assume that it is true that racial diversity in the classroom,
>ensured
> > through preferential admissions policies, is good for education.  As
>Justice
> > O'Connor said, it "promotes cross-racial understanding, helps to break
>down
> > racial stereotypes, and enables students to better understand persons of
> > different races. . . .  Classroom discussion is livelier, more spirited,
>and
> > simply more enlightening and interesting when the students have the
>greatest
> > possible variety of backgrounds."  (One could assume or not assume, for
> > purposes of proposition (1), that the Court was also correct when it
>stated
> > that such policies help to cultivate a set of leaders with legitimacy in
>the
> > eyes of the citizenry.  I'm not sure what effect adding or withholding
>this
> > assumption would have on the question, so put it aside for now.)
> >
> > (2)  Assume also that it is true that, as Sander writes, the net costs of
> > racial preferences in law school admissions to black law students
>themselves
> > outweigh the measurable benefits.  "Most black law applicants end up at
> > schools where they will struggle academically and fail at higher rates
>than
> > they would in the absence of preferences.  The net tradeoff of higher
> > prestige but weaker academic performance substantially harms black
> > performance on bar exams and harms most new black lawyers on the job
>market.
> >   Perhaps 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. . . . In
>systemic,
> > objective terms, [affirmative action in law school admissions] hurts the
> > group it is most designed to help."
> >
> > I appreciate these assertions are themselves the subject of ongoing
>debate.
> > But assume both assertions are absolutely true.  If so, would this lead
>any
> > existing supporters of affirmative action in legal education to change
>their
> > views?  Would respondents to this list still support such policies, or
>would
> > they abandon their support?
> >
> > It seems to me that, although it may occasion controversy (and was
>intended
> > to do so), this question falls squarely within the constitutional law, or
>at
> > least constitutional policy, orientation of the listserv.  In particular,
>it
> > raises the question whether classroom diversity is a sufficient sole
> > justification, on a constitutional or policy basis, for affirmative action
> > policies in higher education, or whether this justification fails in the
> > absence of net benefits for its most immediate beneficiaries; in short, it
> > puts us to the test of whether diversity is really a strong and sincere
> > constitutional justification for affirmative action, or only an adjunct
>(if
> > that) to the remedial argument for affirmative action.  It also seems to
>me
> > that answering the question posed above, again on the assumption that both
> > assertions (1) and (2) are true, nicely poses a form of Derrick Bell's
> > "interest-convergence dilemma" hypothesis in civil rights law.  Finally,
> > although Sander is at pains to point out that the system of legal
>education
> > must be understood as a whole, "from the most elite institutions to the
> > local night schools," I think this question should be of particular
>interest
> > for professors at elite public law schools.
> >
> > Views and comments would be appreciated.
> >
> >
> > Paul Horwitz
> > Associate Professor of Law
> > Southwestern University School of Law
> > Los Angeles, CA
> >
> >
> > _______________________________________________
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Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712
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