Blacks and Law School Discrimination

The U.S. Commission on Civil Rights has issued a report on racial preferences in law schools; the link above has links to the report and some excellent commentary. Drawing on the work of UCLA Prof. Richard Sander, it finds that racial preferences for blacks actually reduce the number of blacks who become lawyers. How? Well, start off with the fact that a relatively small percentage of blacks have high LSAT scores. Those scores turn out to be highly predictive of success at becoming a lawyer. The most selective law schools, employing racial preferences, take care to admit something like 5 to 10 percent of black applicants, in an attempt to approximate in their student body the black proportion of the population (which is 12 percent). That means that most black law students at that school come in with significantly lower LSAT scores than nonblack students.

Then there is a cascading effect. Harvard and Yale have in effect skimmed off a lot of applicants with LSAT scores that would be at the median of less selective law schools. And so forth down the line. So every law school ends up with a cohort of black students with LSAT scores significantly lower on average than its nonblack students. Predictably, students with lower LSAT scores tend to drop out, flunk out, or, even if they graduate, pass the bar examination at a lower rate than students with higher LSAT scores. In the end, Sander argues, you have fewer black lawyers than you would have had if you had not employed racial preferences. So racial preferences end up hurting the very people they were intended to help. Talk about the law of unintended consequences!

Law school administrators, like university administrators generally, nonetheless cling desperately to racial preferences. So does the American Bar Association, which is trying to impose "affirmative action" policies on law schools as a condition of accreditation, a move that seems to have prompted the Civil Rights Commission report. The report gives ammunition to those of us who have criticized these administrators for preening self-righteousness. They want to pat themselves on the back for admitting large percentages of blacks but at the same time seem to have no interest at all in the percentage who actually graduate or pass the bar exam. They can't bear the thought that their institutions will have a lower percentage of blacks than some other institutions they regard as morally inferior (e.g., the United States military and big-city police forces).

I've long opposed racial preferences not because of the harm they do to those who are discriminated against (a nonblack student who loses a place at Harvard to a lower-scoring black will get admitted to a slightly less selective school and will probably do just fine) but because of the harm they do to the intended beneficiaries (creating a stigma of inferiority, which is just the thing that those of us who have long been against racial discrimination don't want to see).

But I have to admit that some of these administrators may have worthier motives. I'm prompted to do so by a Slate piece by Walter Dellinger on the Supreme Court's recent decision barring (or mostly barring) racial discrimination in public school assignment. Dellinger was acting solicitor general in the Clinton administration and is now a practicing lawyer in Washington and a professor at Duke; I think it's fair to say that he's one of the dozen or so most able practitioners before the Supreme Court. Anticipating the court's decision, Dellinger writes about the effect of Brown v. Board of Education on his own life. He was a child in North Carolina then, one of the minority among whites who opposed racial discrimination.

Five years later, I graduated from a still all-white public school without ever having attended school with a black child. In fact, I finished college and law school, clerked for a Supreme Court justice, and was a law professor teaching Brown when the Supreme Court finally brought a meaningful end to the de jure segregation of the public schools of the rural and small-town South in 1972.

Nothing happened in 1954—and everything happened. Brown put a powerful proposition to the American people: that racial segregation was immoral and unconstitutional. For many young white Southerners, the court turned Jim Crow from a social fact into an inescapable and powerful moral question. From the day our teacher solemnly announced the court's decision, my life through high school and college in the South was energized by an endless and fierce argument about whether the Supreme Court was right that segregation was wrong, and what one should do about it. The causal link from the court's ruling in Brown to my walking a picket line in front of a segregated movie theater was direct and strong. The decision of May 17 initiated a debate the changed the South—and the nation—forever.

The idea that the principle of Brown condemns the valiant efforts of, say, the Louisville community to maintain schools attended by both black and white students seems profoundly wrong to me. The Louisville school system (I keep using Louisville, because I know that case better) takes account of the race of students to keep each school integrated. They don't try to replicate the one-third-black percentage of the district as a whole in each school, but they do take race into account where that figure would otherwise fall below 15 percent or above 50 percent. Good people, black and white, in Louisville have refused to give up on the public schools. They know that sharp imbalances in the race of a school population leads to "white flight' from the schools and that using race to keep schools integrated is essential to the viability of public schools....

Only by blinding oneself to history and common sense can one assume that the use of race to maintain the monstrosity of the Jim Crow regime of the South and the use of race to achieve an integrated society in Louisville are one and the same.

I am sure that Dellinger, skillful advocate that he is, could make the arguments on the other side. And I'm sure that he could make, better than I can, an argument that a society laced with racial preferences is one that puts a stigma of inferiority on the intended beneficiaries and may, as in the case of law schools, work directly against their advancement in society. But his passionate belief in Brown and long-standing opposition to the system of legally imposed racial segregation in which he grew up leads him to take the other side. I think it's the wrong position, but I can't say that his motive is unworthy. And perhaps it helps to explain why at least some university administrators are so passionately committed to racial preferences, even though they do the harm that the Civil Rights Commission report documents.