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Civil Rights Panel: Law School Affirmative Action May Hurt Blacks

Is American Bar Association-mandated affirmative action among U.S. law schools ultimately helping or hurting prospective Black attorneys? The U.S. Commission on Civil Rights hosted a panel Friday to examine this issue, and the consensus was decidedly mixed.

“We believe all students benefit from exposure to diverse viewpoints and experiences, and racial and ethnic differences often provide the basis for differences in perspective,” said Steven R. Smith, chairman of the ABA’s Council of the Section of Legal Education and Admissions to the Bar.

Smith vigorously defended affirmative action as set forth in the ABA’s Equal Opportunity and Diversity Standard 211, which calls for law schools to show “concrete action” towards ensuring diversity among students, faculty and staff.

But University of California, Los Angeles Law School professor Richard H. Sander argued that affirmative action, as it is now practiced in U.S. law schools, is damaging to Blacks on many levels. He said half of all Blacks who enter law school end up in the bottom 10 percent of their class after their first year, and Blacks fail to graduate at two and a half times the rate of Whites. Additionally, Blacks fail the bar in their first attempt at more than four times the rate of Whites, and Blacks are more than six times as likely as Whites to fail the bar multiple times.

“That is an enormous disparity, and it’s disturbing to everyone who encounters it,” Sander said, adding, “What’s really disturbing about this, the real scandal here, is that these disparities are largely the result of [affirmative action] policies of law schools themselves.”

Sander says affirmative action by law schools leads to a “mismatch effect,” as many Black law school applicants are accepted by law schools in a tier above what they’re truly qualified for, putting them one step behind classmates who are already suspicious of whether they are truly qualified or got in by virtue of affirmative action.

“It’s these disparities that cause African-Americans, and to a lesser extent Latinos, to perform poorly in law school. It has nothing to do with their race. It has nothing to do with their level of effort in school. It is almost entirely caused by the preferences that are given to them, the position that they are put in, which essentially sets them up for failure,” Sanders said.

Richard O. Lempert, professor of law and sociology at the University of Michigan Law School, said blaming affirmative action alone for poor performance by Black law students does not do the issue justice, as important factors such as unmet financial need and a hostile racial environment must be taken into account. Lempert also argued that poor performance by Blacks in law school is directly tied to inadequate K-12 education.

He said affirmative action has played a key role in boosting the number of Black attorneys, after years of discrimination largely shut them out of law careers.

“There were 4,000 Black attorneys, more or less, in 1970; 40,000 in the 2000 census, probably about 45,000 today. Many of them got their education due to affirmative action,” Lempert said, adding that the number of Black attorneys would decline precipitously “if we were to abolish affirmative action.”

Sander agreed, saying that affirmative action encourages Blacks to apply to law school. Sanders called for the creation of an independent panel comprised of eminent social scientists to examine affirmative action and its effects on Black law students.

“I’ve always thought that we should not completely preclude the consideration of race if we could show that that really made a difference. In the early 1970s and late 1960s, I think affirmative action was important in convincing Blacks and other minorities who had historically had very little access to a legal education that things had changed. And we saw a dramatic increase in interest in minorities at that time,” Sander said.

Still, Sander and a number of civil rights commission members blasted former Supreme Court Justice Sandra Day O’Connor for her decisive opinion in the 2003 Grutter v. Bollinger decision upholding the University of Michigan law school’s use of race as a factor in deciding to accept an applicant. The ABA uses the Grutter decision to defend Standard 211, which is being challenged by a number of USCCR commissioners.

“Justice O’Connor’s empiricism was all wrong. She misunderstood how the Michigan law school program worked. She accepted at face value a lot of very dubious assertions about the benefits of affirmative action as it operated,” Sander said.

But USCCR Commissioner Michael Yaki defended O’Connor.

“Is there a greater good served, as Justice O’Connor said in Grutter, to be served by diversity in education? … We’ve lost in this discussion the basic root of why we’re here. It goes back to [Brown v. Board of Education]. It goes back to the very fact that diversity and seeing people from different racial and ethnic backgrounds in your peer group is per se a benefit to this nation. And we’ve forgotten all about that,” Yaki said.

– by David Pluvoise

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