This column was written by Peter Kirsanow.
What if proponents of affirmative action are wrong? That is, what if racial-preference policies don't increase the numbers of minorities who graduate from colleges, law schools, etc, but rather, do just the opposite? Moreover, what if the harm done to minority academic and employment prospects is compounded by the fact that the policies are blatantly unlawful?
What if affirmative action is a giant, devastating sham?
Startling testimony at a recent U.S. Commission on Civil Rights hearing from Dr. Richard Sander, Professor of Law at UCLA, showed that racial preferences at American law schools are just such a sham. Professor Sander's two most recent analyses reveal extraordinary disparities between black law students and their white comparatives: The grade-point averages of approximately 50 percent of black law students cluster in the bottom ten percent of the class. Blacks are 2½ times more likely than whites not to graduate. Blacks are four times more likely to fail the bar exam on the first try and six times more likely never to pass the exam despite multiple attempts.
Perhaps the most astonishing statistic is that only about a third of blacks entering law school this fall will graduate and pass the bar exam on the first try. Bleak are the prospects for many black law students.
Professor Sander testified that the primary cause for the black law-school disaster is racial preferences. His systemic analyses describe in unapologetic detail how affirmative action creates a mismatch effect, i.e., black students enroll at schools at which they're ill-equipped to compete.
Consider the progression resulting in the above failure rates. As my colleague Abigail Thernstrom has noted, The National Assessment of Educational Progress, "the nation's report card," shows that only 25 percent of black 17-year-olds read as well as the average white 17-year-old. Nearly 90 percent of black 17-year-olds score below the average white 17-year-old in math. More than 90 percent of black 17-year-olds score below the average white 17-year-old in science. In the end, the average black high school graduate has the academic proficiency of the average white eighth-grader. Accordingly, the number of black high-school graduates ready to compete at the college level is small. The number who performed well enough to compete at elite colleges is smaller still.
Colleges must draw from this small, yet underperforming (relative to whites) group in order to satisfy their "diversity" programs. Admissions offices couldn't begin to fill their diversity requirements if black applicants were evaluated in the same manner as whites. A regression analysis conducted by Robert Lerner and Althea Nagai on behalf of the Center for Equal Opportunity shows that at some schools black applicants are more than 100 times more likely to be admitted than whites with the same GPAs and SATs.
Blacks flunk out of college at a much higher rate than whites. The black students who do graduate still lag far behind white students in academic competency — the gap that prevailed upon matriculation largely persists through graduation.
It's from this small, underperforming pool that law schools in search of diversity must populate their classrooms with "meaningful numbers" of black students. The problem is that there aren't enough competitive black applicants to go around. As University of Texas law professor Lino Graglia pointed out a few years ago, the median GPA and LSAT percentile for admittees to the country's elite law schools were 3.8 and 98 respectively. At the time fewer than 20 black law students in the entire country met those standards. One elite law school, University of Michigan, has about 30 black law students in each entering class. Michigan alone could snap up all of the black students at the median and still have 10 seats left to fill. This means that in order to achieve "diversity," Michigan and the other first-tier law schools must dig well below the median to fill the remaining seats.
This creates what Professor Sander calls the "cascade effect." Using preferences, the top schools vacuum up all of the black applicants at the median, as well as those one or two strata below — leaving no black applicants who meet the unalloyed standards of the second-tier law schools. These schools must, in turn, employ powerful preferences to fill diversity seats with black applicants from the next level (or two) below, and so on. The result is that at most law schools black students are not nearly as competitive as their white classmates. Abysmal graduation and bar passage rates follow. And the pattern replicates itself in the job market.
The landmark Supreme Court case, Grutter v. Bollinger sanctions the use of race in admissions provided the preference is but a flexible "plus" factor — a feather on the scale — that's considered along with a host of other factors. But Professor Sander's research shows that the preferences employed by law schools generally don't comply with the Grutter standard. He maintains that on a 1,000-point scale, the median gap between white and black law school applicants is 135 points. The preferences are overwhelming and, contra Grutter, applied mechanically.
One of Professor Sander's most interesting findings is that there's no credible evidence that blacks would underperform whites if schools used race-blind admissions policies. Blacks would then enroll at schools that are a more appropriate competitive match, thereby increasing the probability of graduation. He stresses that this isn't about race. Rather, other variables are at play.
If there was a product on the market that caused blacks, or any other group, to end up at the bottom of the class, flunk out in large numbers, and suffer in the job market there would be an uproar for the Federal Trade Commission to pull the product immediately, coupled with calls for congressional investigations. Lawsuits would abound. Not so with racial preferences. Maybe it's just easier to scam black students than fix the structural problems causing poor performance.
Peter Kirsanow is a member of the National Labor Relations Board. He is also a member of the U.S. Commission on Civil Rights. These comments do not necessarily reflect the positions of either organization.
By Peter Kirsanow
Reprinted with permission from National Review Online