Racial preferences may be setting up many black and Latino law students for
By Vikram Amar and Richard H. Sander
September 26, 2007
The Los Angeles Times
IMAGINE, FOR A MOMENT, that a program designed to aid disadvantaged students
might, instead, be seriously undermining their performance. Imagine that the
schools administering the programs were told that the programs might be having
this boomerang effect -- but that no one
investigated further because the programs were so popular and the prospect of
change was so politically controversial.
Now imagine that an agency had collected enough information on student
performance that it might, by carefully studying or releasing the data,
illuminate both the problem and the possible solutions. What should the agency
This is not a hypothetical question. The schools involved are dozens of law
schools in California and elsewhere, and the program is the system of
affirmative action that enables hundreds of minority law students to attend more
elite institutions than their credentials alone would allow. Data from across
the country suggest to some researchers that when law students attend schools
where their credentials (including LSAT scores and college grades) are much
lower than the median at the school, they actually learn less, are less likely
to graduate and are nearly twice as likely to fail the bar exam than they would
have been had they gone to less elite schools. This is known as the
The mismatch theory is controversial. One of us (Sander) has advanced it in the
academic literature. The other (Amar) believes that while it raises substantial
questions, it has not been empirically proved. Some dismiss the whole idea as
nothing more than a politically motivated attack on affirmative action or, even
worse, an attack on blacks and Latinos -- the main recipients of current
preferences. Many rightly point out that definitive conclusions are difficult
because the data available to researchers thus far have been limited in very
Still, certain facts are indisputable. Data from one selective California law
school from 2005 show that students who received large preferences were 10 times
as likely to fail the California bar as students who received no preference.
After the passage of Proposition 209, which limited the use of racial
preferences at California's public universities, in-state bar passage rates for
blacks and Latinos went up relative to out-of-state bar passage rates. To the
extent that students of color moved from UC schools to less elite ones (as seems
likely), the post-209 experience is consistent with the mismatch theory.
In general, research shows that 50% of black law students end up in the bottom
10th of their class, and that they are more than twice as likely to drop out as
white students. Only one in three black students who start law school graduate
and pass the bar on their first attempt; most never become lawyers. How much of
this might be attributable to the mismatch effect of affirmative action is still
a matter of debate, but the problem cries out for attention.
A lot of legal scholars who focus on empirical work agree that the mismatch
effect deserves serious study. A few weeks ago, the U.S. Commission on Civil
Rights issued a 280-page report on these issues that came to the same
The best data in the nation for studying any mismatch effect in law schools
reside in the archives of the State Bar of California, the state agency that
administers the bar exam and oversees the conduct of lawyers. Starting in the
1980s, the California bar has maintained careful records on the backgrounds of
bar exam-takers and their performance on its tests. With this data, it is
possible to compare how students with similar college grades and LSAT scores do
on the bar when they've attended different law schools and experienced different
types of legal education. It is also possible to more deeply compare the bar
performance of minority students before and after Proposition 209 and use other
careful techniques to test whether the mismatch effect exists.
Given the richness of the data and the intensity of interest in the mismatch
issue, it was not surprising that a blue-ribbon panel of diverse scholars
(including both of us) approached the bar with a detailed proposal to study its
data, backed by full funding and letters of support from dozens of scholars, law
school deans and public officials.
But although the California bar was initially enthusiastic, one of its
committees recently rejected the study proposal. Its stated reasons are
implausible; it expressed concern, for example, about disclosing confidential
information; but the proposed study includes the bar's own in-house expert, thus
mooting the need for any data release.
It seems more probable that the bar, like many law schools, is simply queasy
about touching a delicate area. The Society of American Law Teachers captured
this sentiment in a letter it sent the California bar, cautioning it against
releasing the information because, it said, "SALT is concerned about the
potential negative impacts upon minority bar applicants and attorneys" who
"already face a variety of misperceptions about their qualifications."
By this reasoning, no one should seriously attempt to get to the bottom of
racial disparities in bar performance because the attempt itself would make more
people aware of the disparities!
We know of no serious scholar who has denied, or reasonably could deny, that the
study we're proposing would shed some important light on a vital public policy
issue. It would not be the final word on mismatch theory, no doubt, but it would
be an important step that would advance understanding of the subject. We hope
the bar's board of governors, which oversees what is, after all, a public
agency, will reconsider in the coming weeks and decide to make its make its
information available for research.
A generation ago, the late U.S. Supreme Court Justice Harry Blackmun wrote in
Regents of UC vs. Bakke, the famous UC Davis affirmative action case, that for
society to get beyond race, the government must first take account of race. Last
summer, Chief Justice John G. Roberts Jr. countered that the way to get beyond
racial discrimination was for government to stop using race as a consideration.
We suspect both justices would agree that however one feels about race-conscious
school admissions policies, it is vital that we do our best to understand the
effects of those policies, and doing that requires more, not less, analysis of
Vikram Amar is a professor of law at UC Davis School of Law. Richard H. Sander
is a professor of law at UCLA.