Is American Bar Association-mandated affirmative action among U.S. law schools ultimately helping or hurting prospective Black attorneys? The U.S. Commission on Civil Rights hosted a panel Friday to examine this issue, and the consensus was decidedly mixed.
“We believe all students benefit from exposure to diverse viewpoints and experiences, and racial and ethnic differences often provide the basis for differences in perspective,” said Steven R. Smith, chairman of the ABA’s Council of the Section of Legal Education and Admissions to the Bar.
Smith vigorously defended affirmative action as set forth in the ABA’s Equal Opportunity and Diversity Standard 211, which calls for law schools to show “concrete action” towards ensuring diversity among students, faculty and staff.
But University of California, Los Angeles Law School professor Richard H. Sander argued that affirmative action, as it is now practiced in U.S. law schools, is damaging to Blacks on many levels. He said half of all Blacks who enter law school end up in the bottom 10 percent of their class after their first year, and Blacks fail to graduate at two and a half times the rate of Whites. Additionally, Blacks fail the bar in their first attempt at more than four times the rate of Whites, and Blacks are more than six times as likely as Whites to fail the bar multiple times.
“That is an enormous disparity, and it’s disturbing to everyone who encounters it,” Sander said, adding, “What’s really disturbing about this, the real scandal here, is that these disparities are largely the result of [affirmative action] policies of law schools themselves.”
Sander says affirmative action by law schools leads to a “mismatch effect,” as many Black law school applicants are accepted by law schools in a tier above what they’re truly qualified for, putting them one step behind classmates who are already suspicious of whether they are truly qualified or got in by virtue of affirmative action.
“It’s these disparities that cause African-Americans, and to a lesser extent Latinos, to perform poorly in law school. It has nothing to do with their race. It has nothing to do with their level of effort in school. It is almost entirely caused by the preferences that are given to them, the position that they are put in, which essentially sets them up for failure,” Sanders said.
