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Civil Rights Panel: Law School Affirmative Action May Hurt Blacks

Civil Rights Panel: Law School Affirmative Action May Hurt Blacks

By David Pluviose

Is American Bar Association-mandated affirmative action among U.S. law schools ultimately helping or hurting prospective Black attorneys?

At a hearing last month in Washington, D.C., the U.S. Commission on Civil Rights openly challenged the ABA’s affirmative action policy. Prior to the hearing, commission members sent letters to the U.S. Department of Education requesting that the ABA’s accrediting authority be revoked unless it drops its affirmative action requirement.

The Republican-controlled USCCR is up in arms over a revised ABA provision that calls for law schools to demonstrate “concrete action” toward promoting diversity among students, faculty and staff. The proposed changes will go to the ABA House of Delegates for approval next month.

“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 accreditation and bar admissions council.

But affirmative action in U.S. law schools is damaging to Blacks on many levels, countered Dr. Richard H. Sander, a law school professor at the University of California, Los Angeles. He noted that 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 fail to pass the bar after multiple attempts at more than six times the rate of Whites.

“That is an enormous disparity, and it’s disturbing to everyone who encounters it,” Sander said. “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. [The disparities are] almost entirely caused by the preferences that are given to [Black students], the position that they are put in, which essentially sets them up for failure.”

Sander told the commission that affirmative action leads to a “mismatch effect,” as many Black law school applicants are accepted into law schools they’re not prepared 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.

Dr. Richard O. Lempert, professor of law and sociology at the University of Michigan Law School, said blaming affirmative action alone fails to take into account other pertinent factors that affect Black student performance, including unmet financial need, a hostile racial environment in law school and poor-quality K-12 schools that fail to prepare many Black students for a legal education.

“In large measure, the cures do not lie in law school or even in our universities. They lie in pre-K-12 education. They lie in improving the skills of Blacks at all levels; from the time and even before the time their formal education begins. But they also include more adequate financial support. They include more welcoming, more supportive environments; they may include more affirmative action,” Lempert said.

While USCCR Chairman Gerald A. Reynolds acknowledged that achievement disparities start in K-12, he said law school is not the place to fix societal wrongs.

“I think that this fix called racial preferences in admissions processes is not a very good fix,” he said.

Both sides agree that 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; [and] probably about 45,000 today. Many of them got their education due to affirmative action,” Lempert said, adding that the numbers of Black attorneys would decline precipitously “if we were to abolish affirmative action.”

Sander agreed that affirmative action had encouraged Blacks to apply to law school in the past, but questioned whether affirmative action is still needed to play that role. 

He said the Supreme Court’s 5-4 Grutter v. Bollinger decision upholding the consideration of race in university admissions is based on faulty assumptions about affirmative action’s benefits. He called for the creation of an independent panel of social scientists to examine affirmative action’s effects on Black law students.

But USCCR Commissioner Michael Yaki says the reasons affirmative action exists cannot be ignored.

“Is there a greater good served — as Justice [Sandra Day] 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.

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