Commentary
The Scandal of the Law Schools Stephan Thernstrom
A GENTLE FINGER placed on scales that are otherwise evenly balanced: that is how proponents have long described the way affirmative action works at selective colleges and universities. Thus, Herma Hill Kay, dean of the Boalt Hall School of Law at the University of California, Berkeley, has explained that a racial preference is the legitimate consequence of having "to choose between two equally qualified persons." It is a harmless policy, serving a vital social objective, and challenged by skeptics who have only their prejudices to support them and no hard data on how the process operates. On the last point, supporters of affirmative action were long correct; the schools themselves made sure their actual admissions processes were shrouded in deep secrecy. In 1991, however, a corner of the veil was lifted when Timothy Maguire, a white student at Georgetown University’s school of law, began a search for the truth. Thanks to a part-time job in the registrar’s office, Maguire was able to scan the school’s student records. He found that the college grades of blacks admitted to the Georgetown law school were startlingly lower than those of their white peers, and so were their scores on the Law School Aptitude Test (LSAT). This meant that race was not just one of many possible "plus" factors being considered by the law school’s admissions committee; it was the only factor that could explain the presence there of most black students. When Maguire went public with his findings, Georgetown’s defenders mounted a fierce counterattack. Not only, they said, had Maguire violated the confidentiality of university records, but his charges were based on "incomplete and distorted information." They were designed, in fact, to lend support to an "intellectually dishonest myth": namely, that black students were "less qualified than their white counterparts to compete in school." As Maguire was in no position to conduct a more systematic study of the matter, and as those who challenged his assertions were manifestly disinclined to release relevant data, the matter rested there.1 Over the past couple of years, much more has been learned about the precise nature of the preferences given to minority, and especially black, applicants to American colleges, universities, and medical and law schools. In the Autumn 1995 issue of the Journal of Blacks in Higher Education, for example, admissions figures supplied by colleges and universities disclosed dramatically higher acceptance rates for black applicants than for whites. Internal documents from the University of Michigan and the University of California, extracted by repeated requests under the Freedom of Information Act, have similarly revealed strong preferences being given to minority applicants. In the Hopwood case decided by the Fifth Circuit Court of Appeals in March 1996, the law school at the University of Texas was found to have discriminated in favor of black and Mexican-American students, "elevating some races over others." And now a massive inquiry by Linda F. Wightman shows much the same practice being followed in law schools all around the country.2 As it happens, Wightman is a supporter of racial preferences. Moreover, her study, which has garnered considerable publicity, is explicitly aimed at countering efforts to undo them, like California’s Proposition 209. As we shall see, however, her own evidence clashes with the interpretation she attempts to give it. And that evidence, from which quite different conclusions can be drawn, is remarkably rich.3
WIGHTMAN CONDUCTED her research while serving as a vice president of the Law School Admissions Council, whose resources enabled her to compile a formidable data base. Her primary sample is made up of the 90,000 applicants in 1990-91 to law schools approved by the American Bar Association. A second sample, a subset of the first, comprises the 27,000 or so students who actually enrolled in law school in the fall of 1991. Their progress was followed over time, making it possible to track their academic performance while in school, their graduation rates, and the rates at which they subsequently passed the bar exam. The fundamental fact confirmed by Wightman’s study is that significant preferences were given on the basis of race in the 1990-91 application cycle, and that, in the absence of these preferences, the number of blacks admitted to American law schools would have fallen very substantially. Indeed, of the 3,435 black students accepted in that year, only a fifth would have been admitted to the particular schools that took them had the criteria been college grade-point averages (GPA’s) and scores on LSAT’s alone. Among those who actually enrolled, the proportion acceptable on the basis of grades and scores alone was lower still—only 8.9 percent.4 In the absence of preferences, some of these students might have attended lower-ranked schools, but about half, Wightman estimates, would not have gotten into any accredited institution. In other words, 80 percent of black students accepted in 1990-91 had grades and test scores that, if they had been white, would have led to their being rejected by the school that admitted them. Not only that, but the grades and scores of those blacks admitted through affirmative action were astonishingly low; their college GPA’s put them in the bottom 16 percent of all law students, and their LSAT scores were in the bottom tenth. Though Wightman does not stress them sufficiently, two other patterns are visible in the admissions data she presents. First, black applicants received much heavier preferences than members of other racial or ethnic minorities who likewise came under the affirmative-action umbrella; being black conferred a decidedly greater advantage than being a Mexican-American or belonging to any other officially protected group. Second, the better the law school, the bigger the boost it gave to black applicants. Thus, among the most selective and prestigious schools, 17.5 times as many black students were admitted as would have been the case if academic qualifications alone had been taken into account. This ratio, which declines steeply as one descends to less selective schools, testifies to the zeal with which our most eminent institutions have been recruiting black students, whether or not those students meet normal entry requirements or anything resembling them. As one might imagine, the pursuit has created enormous difficulties for administrators who insist publicly that all they are doing is choosing (in Herma Hill Kay’s words) "between two equally qualified persons." Indeed, documents that came to the surface in the Hopwood case offer a candid glimpse into what those who run an affirmative-action regime say to themselves when they think they are not being overheard. The current dean of the University of Texas law school, when speaking in public, has characterized as "strikingly successful" his institution’s pre-Hopwood efforts to attract minority students possessed of "intellectual depth." But the administration’s internal correspondence at the time suggests something else. In one private communication, an associate dean confided that whereas white students at the University of Texas were "overwhelmingly drawn from the very top of the national pool," in order to bring in African-Americans the school had been compelled to reach down "well into the bottom half of the national pool." Black candidates, he said, had to be judged by "radically different admissions standards."
WIGHTMAN’S STATISTICS conclusively support what the Hopwood documents illustrate: the objective of procuring a racially "diverse" law-school class is sharply at odds with the practice of adhering to meritocratic standards in admissions. That, however, is not where the argument ends—or not where it now ends, since proponents of affirmative action have somewhat altered their case to meet the no-longer deniable facts. "Radically different" admissions standards, they say, may indeed have been applied in the case of minority groups. But there are solid reasons for that—social, political, and historical. And in any case (proponents continue), the point is not where applicants start out—their initial credentials—but where they end up. Once admitted, they have performed as well as their peers, both in law school itself and on the bar examination. Thus they have justified the chance taken on them by university administrators. This is the conclusion that Wightman herself draws—a conclusion that has earned her research much attention. Reports in Time, Newsweek, and other major media have all echoed the judgment stated in the abstract that accompanies her article: if we eliminate affirmative action, we will be denying the benefits of law school "to many minority applicants who [are] fully capable of the rigors of legal education and of entering the legal profession." Wightman’s own data, however, show that this is not the case. Consider the key indicators of course grades and class rank. An earlier study by Robert Klitgaard of the nation’s top ten law schools found that the grades of the average black student fell in the bottom 8 percent of the class, while a report from California in the late 1980’s revealed that the mean law-school GPA of black students in that state was at "about the 15th percentile." Wightman does not comment on these studies, even to say that they are flawed, or anomalous, or out of date. Nor, though her own treasure trove of information holds what she forthrightly describes as "law-school performance data" for students who entered in the fall of 1991, does she tell us what these data reveal. Instead of examining performance in school, Wightman ducks the issue by focusing on two other yardsticks: whether or not students graduated, and whether or not they passed a bar exam. Both these measures of achievement are indefensibly crude, and her interpretation of what they show is full of holes. To begin with the first: Wightman finds it impressive that a very high proportion of affirmative-action beneficiaries in her sample made it through law school and collected their diplomas. This, she maintains, "strongly" supports the view that universities are careful to offer admission only to "those students of color who are qualified to meet the demands of law-school academic work." There are glaring problems with this contention. Whether or not it was ever common to flunk law students, today the practice is extremely infrequent. Law schools are organized so as to ensure that nearly everyone makes it through to the end: Wightman’s own figures show a whopping 89.1-percent graduation rate for her entire sample. This, indeed, may be one result of the commitment to affirmative action; once an institution lowers standards to admit more minority students, it increases the pressure upon itself to ensure they will graduate. In any event, today’s graduation rates are much too high to offer a reliable indication of academic success. It is as if one were to set an athletic standard for college undergraduates of a twenty-minute mile; at that rate, varsity lettermen and nerds who rarely leave their cubicles would come out looking equally fleet-footed. But even leaving aside the unreliability of graduation rates as a measure of achievement, Wightman’s treatment of the evidence is seriously deficient. For one thing, she avoids any mention of the conspicuous racial differences in the proportion of students who manage to pass even the relatively easy test of graduating: no fewer than 21.9 percent of the blacks in her sample failed to collect a degree, more than double the white dropout rate. She evades this issue by restricting herself to a comparison between blacks who were admitted through preferences and those who were not. As between these two subgroups, she finds only a slight variance (2.6 percentage points), with the beneficiaries of preferences graduating at a rate "not significantly below" those admitted on strictly academic grounds. Her comparison is intended to obscure the central fact: even the black scholastic elite is dropping out of law school at nearly double the rate of whites admitted on academic grounds. And this troubling phenomenon may be still another baleful consequence of affirmative action: some of the nation’s best-qualified black students have been encouraged to enroll in institutions above their level of academic ability. In all likelihood, many have become discouraged enough to leave. Their painful dilemma hardly suggests the "success" of a policy that has set them up to founder.
WHICH BRINGS us to perhaps the most sensational aspect of Wightman’s study: her findings concerning performance on bar examinations. Here, too, it has long been known that blacks fail these tests at far higher rates than whites, and here, too, Wightman conspicuously neglects to cite any of the readily available sources. Thus, between 1977 and 1988, 73 percent of whites in California, on average, passed the bar exam the first time they took it, as opposed to only 30 percent of blacks. (In 1994, the gap narrowed to 82 versus 53 percent.) In New York, between 1985 and 1988, the average first-time pass rate for whites was again 73 percent, while for blacks it was 31 percent. In Florida in 1991, 76 percent of whites passed the bar on their first attempt, but only 46 percent of blacks. And so forth. Given the large number of studies showing a significant racial disparity, Wightman’s claim that she herself found "little or no difference [between blacks and whites] in the likelihood of passing the bar examination" comes as a real surprise. But once again, inspection of her numbers reveals that they do not prove her point. Overall, 93.9 percent of the students in Wightman’s sample passed the bar exam—a figure impossible to reconcile with the first-time failure rates either of blacks or, for that matter, of whites. Where does this figure come from? It appears that Wightman has employed her own, distinctive measure of performance, examining not first-time rates but only whether a student passed a bar exam at any time within three years of graduation. Since most states offer the exam twice a year, this means that at least some of those classified as having "passed" surely did so on their sixth attempt. Lumping together those who pass the bar on the first try with those who require multiple attempts is extremely misleading. Just as it is reasonable to wonder about the competence of an automobile driver who has flunked his road test in five out of six attempts, it is reasonable to wonder about the command of the law held by someone who has managed to eke out a passing grade only after repeated efforts. Wightman had the data to perform a sophisticated analysis, comparing pass rates for first-time test-takers—the customary measure—with her own, more expansive, conception. She chose instead to blur the relevant distinctions, thus conveying the wholly erroneous impression that beneficiaries of affirmative action perform every bit as well on the bar exam as others. As she did with graduation rates, Wightman scrutinizes the bar-exam results of blacks admitted on the basis of academic performance alone as compared with those admitted on the basis of preferences. In her sample, 9.8 percent of the former failed to pass the bar, while the failure rate for the latter was 27.1 percent—almost three times higher. Once again, her findings are at odds with the conclusion stated in her abstract: namely, an absence of "significant differences in the . . . bar passage rates between those minority students who would have been accepted to law school [without racial preferences] and those who would not." As for the overall difference, not between two subsets of blacks but between blacks and others, an analysis of Wightman’s data shows that the failure rate for black law-school graduates taking the bar is more than six times the white failure rate. This, however, is a calculation that she herself does not perform. And no wonder: it may be the most newsworthy, and most depressing, piece of data in her entire study. Not that such facts are exactly a secret, at least to the law-school officials who have to contend with the problem all the time. Here again the Hopwood documents are illuminating. According to an associate dean at the University of Texas, "approximately" 90 percent of the school’s white students passed the bar on their first try, while the figure for blacks was "consistently under 50 percent." "Even more seriously," he continued plaintively in a confidential draft letter, "half of our minority graduates who fail the exam fail again upon retaking," and these high failure rates were "an embarrassment that does real damage to our reputation," bringing the overall pass rate at the state’s flagship law school to a point lower than at such rivals as Baylor, Southern Methodist University, or even lowly Texas Tech, where there were "few minority students" to pull down the school’s average. The "embarrassment" felt at the University of Texas must have been the more painful since the explanation for it could hardly be made public; after all, the school was claiming that it did not employ a double standard in admissions. In an effort to solve the dilemma, another associate dean wrote a memo a few years later proposing to publish "quantitative outcome measures" that could be used to demonstrate the school’s ongoing excellence. By breaking down bar-examination pass rates by race, the dean suggested helpfully, the school would at least be able to show the public that white students trained there were continuing to do just fine. Needless to say, his superior promptly circled the words "by race" where they appeared in the memo under the heading "Bar Pass Rate," scrawling beside them a very large "NO!" Throughout the Hopwood correspondence there runs one consistent thread: the deans at the University of Texas were far more concerned with demonstrating their commitment to "diversity" than with the welfare of the black students they were thrusting into a competition for which these students were ill-prepared. Although the evidence was inescapable that many of the students were failing the bar exam and failing it again, a dean questioned about the matter in the Hopwood proceedings confessed that he did not know the "final bottom-line" record of their achievement. Better, one presumes, to stop keeping track altogether than to confront the full degree of one’s own responsibility for students one has recruited and spent three years training, only to leave them still unqualified to enter the profession one has recruited them for in the first place.
ALTHOUGH SHE is wrong about many things, Linda Wightman is undoubtedly correct about one thing: eliminating racial preferences from the admissions process will sharply reduce the number of black students accepted at our most selective and prestigious institutions. The reason for this, as we have seen, is simple enough: on average, black students are much less well-prepared academically than their white peers. As we have also seen, it is simply false to assume that this gap will shrink or disappear if blacks are admitted to better schools than their academic records merit. Despite pretenses that such students are somehow or other "qualified," a weak undergraduate record and poor test scores are handicaps that few succeed in overcoming. What is so for law schools is so for medical schools as well. Pertinent here is a 1987 Rand Corporation study of the career paths of black and Latino physicians admitted to medical school as a result of preferences. According to this study, the rate at which such students became "board-certified" to practice medicine was a direct function not of their graduation rates from medical school but of their grades in college and on the Medical College Admissions Test, the medical-school equivalent of the LSAT. Over 80 percent of the minority physicians with strong enough grades and test scores to merit admission without preferences went on to become board-certified, matching the record of whites and Asians. By contrast, a mere 32 percent of minority medical-school graduates with the weakest college academic records managed to achieve certification in their specialty.5 These implacable facts explain the already precipitous decline in the number of black students applying for or entering the University of California’s law and medical schools after the regents mandated color-blind admissions policies and California voters endorsed Proposition 209. Though this fall-off has been loudly lamented by supporters of affirmative action—President Clinton has expressed "shock," and likened it to the reimposition of segregation—such a response is deeply disingenuous. The decline is simply a reflection of the magnitude of the reverse discrimination that has been practiced in the past. If voters in other states follow California’s lead, or if decisions by other courts extend the reach of the principles set forth in Hopwood, in the short run we will indeed have fewer black students receiving legal and medical training. But those who do make it will be much better prepared than those who have entered as a result of racial double standards. Not only will they themselves be better lawyers and doctors, but the fact that they have earned their positions through their own merit will make for a healthier racial climate, in professional schools and elsewhere. As for the problem posed by the relative paucity of black students at the most selective schools, there is only one long-term solution: better academic preparation in the years of kindergarten through 12th grade. Already in post-Proposition 209 California, there is talk of establishing programs to tutor elementary- and secondary-school pupils, in hopes of closing the racial gap in cognitive skills. A nationwide rollback of our pernicious system of racial preferences may well release further energies of this kind. It is in any case a much-needed step along the road to social health, as Linda Wightman’s study inadvertently—very inadvertently—shows. STEPHAN THERNSTROM is Winthrop professor of history at Harvard University and the co-author, with Abigail Thernstrom, of America in Black and White: One Nation, Indivisible. (A review of this book, by James Q.Wilson, will appear in next month’s Commentary.) A longer, fully-annotated version of the present article will be published in the January 1998 issue of Constitutional Commentary. 1 For Maguire’s side of the story, see his "My Bout With Affirmative Action" in Commentary, April 1992. 2 "The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admissions Decisions," New York University Law Review, April 1997. 3 It is perhaps relevant to note here that the original version of the present article was submitted to the New York University Law Review in response to Wightman’s study; it was rejected without explanation. 4 Although Wightman fails to note it, a disproportionate number of black students with the best academic qualifications who went through the trouble and expense of applying to law school, and were accepted, for some reason failed to attend. This is a mystery that awaits explanation. 5 The findings of this careful inquiry contradict those of a recent and much-ballyhooed study of the medical school at the University of California at Davis, published in the Journal of the American Medical Association on October 8, 1997. This article, which the New York Times uncritically reported as providing proof that preferences work, is junk social science in the Wightman tradition. Among its many glaring flaws, the most important is that it does not, in fact, examine students admitted to medical school as a result of racial preferences. Rather, it reports on the performance of all students admitted for extra-academic reasons. Thus, no valid conclusions can be drawn about the 43 percent who were members of "underrepresented" racial groups. Whether this failure to supply the breakdowns necessary to make valid assertions about racially preferential policies stems from incompetence or from dishonesty is difficult to say.
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