Rick Sander is guest-blogging at the Volokh Conspiracy, and is summarizing key findings from his law review article on the use of racial preferences by law schools. Here’s his overview:
When law schools talk about race-based admissions preferences – something they generally discuss as little as possible — they make three claims: (a) the preferences are small and not automatic, (b) race is one of a myriad of factors taken into account to create a diverse class, and (c) everyone admitted is fully qualified to do well at the school. These were the central messages advanced by the University of Michigan Law School in their defense of affirmative action before the Supreme Court. I found in my research that all three claims were substantially untrue, both for Michigan and for law schools generally. More interestingly, I found that each law school follows such a similar pattern that a powerful “cascade” effect sets in, creating interesting collective action problems for the system as a whole and for any school that wants to approach admissions less mechanically.
The “collective action problem” is this:
The preferences awarded by the top tier law schools absorb all the black applicants that would be admitted, in a race-blind system, to second-tier schools. These schools must therefore choose between having essentially no black students or duplicating the types of preferences pursued in the top-tier. Nearly all the second-tier schools choose the latter course, thus putting third-tier schools into the same bind, and so on. The net effect of this system is to move nearly all blacks up a tier (or two) in the law school hierarchy, thus placing nearly all blacks at an enormous academic disadvantage in the schools they attend. The only net addition of blacks to the system comes in the lowest-tier schools, and the black students they admit have such marginal academic credentials that they face long odds against every becoming attorneys.
Our readers may recall that the Supreme Court upheld the University of Michigan Law School’s system of racial preferences, but struck down the preference system used by Michigan for undergraduates, on the theory that the Law School’s approach was part of a complex individualized assessment of each applicant – the opposite of the college’s use of a mechanical award of points.
Here’s what Sander says about that:
The Law School’s admissions were more dominated by numbers, and the implicit “boost” given black applicants was larger (and as mechanical) as the College’s system. The only substantive difference between the two schools is that the College took more account of factors like socioeconomic background, writing samples, and extracurricular activities – differences that should have made it more constitutional in O’Connor’s eyes, not less. What apparently saved the law school was the way they talked about their admissions system, and perhaps the plaintiff’s failure to adequately demonstrate its actual workings.
What really saved the law school’s racially discriminatory spoils system was the shockingly muddled thinking of a few Supreme Court Justices, especially Sandra Day O’Connor. That’s one of the reasons why, right now, we’re obsessing about Arlen Specter and the issue of potential Supreme Court nominees.