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September 10, 2008 — Ending affirmative action in recruiting students to
U.S. law schools would come at an unacceptable cost, said University of Virginia
Law School professor Alex Johnson Thursday at a resident faculty speaker series
event sponsored by the Center for the Study of Race and Law.
The “alteration of current education policy might well undo several decades of progress in the diversification of law schools and subsequently at the bar,” said Johnson, a former chair of the Board of Trustees of the Law School Admissions Council, the organization that produces and administers the LSAT nationwide.
Johnson’s talk responded to a 2005 Stanford Law Review article by UCLA law professor Richard Sander, “A Systematic Analysis of Affirmative Action in American Law Schools.” In the article, Sander argued that affirmative action in practice leads to fewer black lawyers.
“Sander’s basic premise is: If we really prize diversity and we really want a diverse bar we would do better without affirmative action,” Johnson said.
Because black students with the best LSAT scores are recruited by top-tier law schools, less-qualified black law school candidates are recruited by middle-tier schools and so on, creating a “cascade effect,” Sander argued.
According to Sander’s article, when students are admitted to a law school more academically rigorous than they are numerically qualified for, they experience lower grades and lower bar passage rates.
Johnson acknowledged that African-Americans on average score lower on the LSAT and are somewhat less likely to pass the bar. For the class matriculating in 1991 and graduating in 1994, the same period as Sander’s data set, the bar passage rate differential between African-American and other test takers was 19 percent.
But Johnson found in his own research that the bar passage rates of African-Americans who achieve above the mean LSAT score is almost identical to those of whites.
“Those students at the top, going to the elite schools, aren’t flunking the bar. And they are all going to become lawyers,” Johnson said.
Sander claimed that dismantling affirmative action in elite law schools would result in an additional 150 to 169 more black lawyers. But “those [additional] lawyers we would have would not be the lawyers from the top schools,” Johnson said, and would not have the same high-quality legal education.
The real issue, Johnson said, “is whether the absence of students of color from our most selective and prestigious law schools is an acceptable cost to incur in order to prove what may be a flawed hypothesis.”