Commentary Magazine


Race and The Law Schools

To the Editor:

Stephan Thernstrom’s arguments are based on a fundamental misunderstanding of how law-school admissions decisions are made [“The Scandal of the Law Schools,” December 1997]. Admissions decisions, as I know from my experience as associate dean at the University of Southern California law school, are the result of a complex subjective process. Mr. Thernstrom overstates the importance and reliability of the numerical factors in the process, and he arbitrarily undervalues the less 5 quantifiable subjective criteria.

Admissions decisions rely on carefully considered human judgments of subtle indicators of promise and ability. The evaluation of law-school applicants is not based on an artificially narrow, statistical definition of merit. Merit includes not only grades and standardized test scores, but also a variety of factors not easily quantified: writing ability; community involvement and work experience; letters of recommendation; special talents or abilities; reasons for attending law school; unusual career interests; prior graduate study; challenges met and disadvantages overcome; and many other factors.

Mr. Thernstrom suggests that our evaluation of individual human beings should be based on one or two numerical predictors of performance. That misplaced reliance on numerical predictors presumes that standardized tests have more validity than they actually possess—that they are better at predicting performance than the data support. In fact, standardized tests and undergraduate grades have limited predictive value; they are meaningful as predictors only when evaluated in the context of nonnumerical indicators apparent from a thorough review of each individual. The Law School Aptitude Test (LSAT) does not measure the full range of factors important to success in law school, nor is it a valid predictor of ability or of success as a lawyer.

Mr. Thernstrom mistakenly dismisses the value to legal education of diversity. He is wrong; diversity among law students does in fact improve the quality of legal education and helps produce better lawyers. Law school is interactive. Students learn not only from faculty; students encounter and learn from classmates whose backgrounds, experiences, and characteristics are different from their own. For example, a law student who has served in the military, who grew up in a foreign country, or who has been a police officer in a large urban area may have a perspective on issues of individual freedom and criminal procedure different from that of another law student who is a member of a small religious sect, or has struggled against racial prejudice, or was arrested in a civil-rights demonstration. If a classroom discussion focuses on the appropriate behavior of police officers and those detained during a traffic stop, the discussion would be far richer for everyone if students with all these different backgrounds and experiences participate.

Finally, Mr. Thernstrom dismisses the clear evidence that affirmative-action efforts in legal education have in fact been successful. At the University of Southern California law school, minority students are successful in the classroom and in law-school journals and moot-court programs; they are active contributors to—and fully engaged in—law-school communities. Our minority law graduates become leaders—as practicing lawyers in law firms, government agencies, and public-interest organizations; and as philanthropists, community activists, publishers, judges, elected officials, and law-school professors and deans. Their strong performance both in law school and afterward in the profession defeats the harmful stigma that Mr. Thernstrom incorrectly suggests is unavoidable. The evidence indicates clearly that he is wrong.

Most applicants to law school, whether minority or nonminority, want to attend a school that will prepare them for a variety of leadership roles. One fundamental concept students learn is how the law affects different people in different ways. Law students learn how to work together, how to exercise leadership to build consensus among people with different perspectives and backgrounds, and how to provide constructive and professional advice. A diverse student population enhances this aspect of legal education for all law students—and for their future clients as well.

Robert M. Saltzman
University of Southern
California Law School
Los Angeles, California

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To the Editor:

Stephan Thernstrom’s “The Scandal of the Law Schools” proves a point that anyone with the slightest knowledge of law-school admissions has known for at least two decades: minorities are admitted to law school with significantly lower scores on the LSAT than whites. But this is far from a scandal. The law schools should be proud of what they have accomplished.

When I went to Harvard law school 40 years ago, there were almost no blacks in my class, there were no black professors, there were almost no black federal judges, there were virtually no blacks in major law firms or high government office. Blacks in the legal profession were overwhelmingly confined to small-time practice in the lowest state courts. That was a scandal.

There has been a revolution in the last 40 years. Blacks are found at all levels of the profession, albeit still not fully commensurate with their numbers in the general population. The top law schools have played a major role in this revolution by admitting and graduating blacks who, whatever their LSAT scores may have been, have demonstrated their ability to be leaders of the profession.

Mr. Thernstrom suggests that the right way to admit law students is to adhere slavishly to their LSAT scores. But this is not the way students are admitted to universities in the United States. Does anyone think that Harvard, my school as well as that of Mr. Thernstrom, considers only test scores when the children of big donors apply? Does anyone think that Stanford and Duke and Notre Dame do not take into account factors other than test scores when they are considering football running backs and seven-foot basketball centers? Why is it fine to accept students with considerably lower test scores for such trivial reasons but not in order to deal with what is probably this country’s most serious social and moral problem?

Mr. Thernstrom is not willing to accept the consequences of his own position: that virtually total reliance on test scores will result in the exclusion of blacks from leadership roles in the legal profession and, if similar policies were followed in other universities, would return the United States to the days when blacks were hardly allowed to play any significant role in American society.

Bruce J. Terris
Washington, D.C.

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To the Editor:

Stephan Thernstrom does a beautiful job exposing the deceptions (both self-deceptions and public deceptions) practiced by defenders of racial preferences, but I wonder how much good such carefully-modulated exposés really do.

We have known for a long time that academic merit is being traduced in college and university admissions. What is new is that avatars of affirmative action are now defending their handiwork by trashing the very idea of merit. Thus we have Michael Sandel asking in the New Republic whether students with the highest academic achievement and promise deserve to be admitted. His answer is: “No, they don’t.” Any criteria of admission that are “reasonably related to a worthy social purpose” are acceptable. All the old, anti-intellectual canards about “cultural bias” and tests that “do not measure anything real” are once again trotted out, but this time with elite academic handlers.

What is needed, then, is not more exposure of these deceptions, but a powerful affirmation of the moral basis of the merit principle; an explanation of why that principle belongs in the American political creed of liberal individualism; of why the many decades of struggle it took to establish merit as the norm for acceptance and advancement in our society were worth it; and of why merit is the only alternative to tribalism.

In fact, defenders of color-blindness appear to be suffering from a serious rhetorical deficit. Hefty majorities of Americans oppose preferences but they lack the language and the arguments to articulate what they privately believe is right. They know the intimidation and bullying they can expect from the other side. After all, when Abigail Thernstrom, Mr. Thernstrom’s wife and, along with her husband, perhaps the best-informed critic of affirmative action in the country, can be verbally mugged by the President of the United States on national TV with hardly anyone in the news media noticing that anything untoward has happened, what are the chances for ordinary people?

It is the task of the rhetor, as intellectual leader, to restructure the terms of a debate that is going badly—to provide new language, to sharpen arguments, and to raise the intensity of the exchange. We have already had plenty of distinguished reporting; what we need now is better rhetoric.

Why, for example, do we continue to allow preferences to be confused with civil rights? Color-blindness is the historical civil-rights position in America, and the fact that many leaders of minority interest groups have departed from this position over the last 30 years does not entitle them to take the term with them.

I realize I am guilty of criticizing Mr. Thernstrom for writing the piece he wrote rather than the one I would have liked him to write. But that is precisely the point: the expository mode of criticism—elegantly laying out what the diversity party has been up to, and letting it convict itself out of its own mouth with its own data—is inadequate to the political task of finishing off affirmative action. There is a timid giant of opposition to preferences out there; the task is finding the words to embolden it—to immunize it against the outrageous but debilitating charge of “racism,” and to enable it to assert its rightful claim to the moral high ground in what is surely the most important domestic policy debate of our time.

Richard E. Morgan
Department of Government
and Legal Studies
Bowdoin College
Brunswick, Maine

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To the Editor:

Stephan Thernstrom’s discussion of “The Scandal of the Law Schools” is hardly news to those associated with legal education. Indeed, racial preferences appear to be required by the American Bar Association, the national accrediting body of the legal profession.

The problem, of course, is the perennial one of a shortage of highly qualified black applicants. As former Harvard Dean Erwin Griswold argued in 1978 in support of the Regents of the University of California v. Bakke, we can have colorblind, merit-based admissions or a proportionate black presence in legal education. We cannot have both. Mr. Thernstrom’s confidence that this problem is subject to a “solution” through better academic preparation in the years of kindergarten through 12th grade seems misplaced. The failure of Head-Start programs, pursued for over 30 years and funded with ever-increasing billions of dollars does not support his optimism.

But those who believe as I do that racial preferences are profoundly wrong should realize that there are alternatives that are worse. Following the Court of Appeals ruling against preferences in the Hopwood case, in which the University of Texas law school was found to have discriminated in favor of black and Mexican-American students, Texas decided to admit the upper 10 percent of every high-school class to the state university automatically. Advocates of affirmative action in California have called for the elimination of the Scholastic Aptitude Test (SAT) for applicants to the University of California. The abandonment of the race-norming conventionally practiced in American higher education is not a blessing if it is to be followed by the abandonment of the principle of merit itself.

David Robinson, Jr.
George Washington
University Law School
Washington, D.C.

_____________

 

To the Editor:

Stephan Thernstrom is to be congratulated on his superb description of the pernicious effects of racial preferences in law-school admissions. Nevertheless, one of his remarks requires further comment. He says that the reason the best-qualified black students fail disproportionately to attend law school after being admitted remains a mystery. But it is not a mystery—it is simply what an understanding of the economics of credentials would lead one to expect.

As Mr. Thernstrom points out, merely graduating from law school and (eventually) passing the bar exam are not marks of great distinction. What matters more is admission to a selective school in the first place. Although the precise details of the differences between white and black admissions criteria may not have been common knowledge, the approximate magnitude of the difference has been widely understood for the last quarter-century. If prospective employers and clients are aware that a graduate of a prestigious school was admitted under markedly inferior standards than others, that graduate will have a significantly devalued credential. The result of affirmative action, therefore, has been to create a parallel system of nominally equal but actually debased credentials for blacks. Of course, this holds not just for law schools but for diplomas in other fields from every major university.

Consider the top tier of black undergraduates, those who would be admitted to law school under a colorblind admission system. They would naturally have attractive career choices apart from law school. Given the difference in credential value, a legal education would be less valuable to this top tier of blacks, who have no practical way of demonstrating they would have been admitted solely on the basis of merit, than to comparable whites.

The dirty secret of affirmative action is that it makes legal careers relatively unattractive for the best-qualified blacks, fraudulently creates unrealistic expectations among less-qualified blacks, and generates a poisonous atmosphere between the races on campus.

John L. McCormack
New York City

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Stephan Thernstrom writes:

Robert M. Saltzman believes that law-school admissions officers do not make decisions on the basis of “an artificially narrow, statistical definition of merit,” but take into account a “variety of factors not easily quantified.” Apparently he believes that a candidate’s undergraduate academic record and scores on the LSAT are of relatively incidental importance. In another publication, Mr. Saltzman recently went so far as to claim that “the notion that a student [who] is admitted on his [undergraduate grade-point average] and LSAT [only] . . . is more qualified [than another is] just nonsense.” According to him, law schools do not care about “artificial predictors of performance,” but judge the whole person.

This, I submit, is a thoroughly disingenuous description of current practice at the nation’s selective law schools, all of which, the evidence shows, take objective measures of academic achievement very seriously indeed—except when they are evaluating candidates from “underrepresented” racial groups. Moreover, is it believable that there are hardly any white applicants with “writing ability; community involvement and work experience; . . . challenges met and overcome,” or any of the other items on Mr. Saltzman’s endless list, which in the case of the typical minority student are supposed to compensate for lackluster academic qualifications? Of course not.

This rhetoric about the use of “less quantifiable subjective criteria” is simply a cover for the use of racial double standards. No one, after all, is forcing the law schools to collect LSAT scores and undergraduate grades. If the University of Southern California law school really thinks that such numbers tell us nothing of value, it is very odd that the school still demands them.

Mr. Saltzman’s discussion of the value of “diversity” in legal education also strikes me as disingenuous. He suggests that a student who, for example, served in the military or worked as a police officer or who belongs to a small religious sect adds something valuable to a law-school class. Arguably so, but no one is objecting to giving candidates for admission some boost on these grounds; neither the 1995 vote of the Regents of the University of California mandating color-blind admissions policies nor California’s Proposition 209 banning affirmative-action hiring in the state limits the freedom of admissions officers to take such matters into account. What they did put an end to, and quite properly so, is defining diversity in exclusively racial and ethnic terms, and making admissions and hiring decisions on this basis.

Consider Cheryl Hopwood, the plaintiff in the Hopwood case: she is a young woman of working-class origins who would have contributed more to social-class diversity at the University of Texas law school than many black students from more affluent backgrounds who were chosen ahead of her despite their inferior academic qualifications. She also is the mother of a severely handicapped child, which would seem to give her a valuable perspective that might otherwise be underrepresented at the school. But the admissions officers at the University of Texas who rejected her were not truly interested in achieving diversity—their main objective was simply to increase the number of black and Hispanic students at the law school.

I find it startling that Mr. Saltzman could charge that I “dismiss” the “clear evidence” that racially preferentially law-school admissions are “successful.” In my article, I reviewed at considerable length the most extensive body of evidence ever assembled on this issue, data that include the vast majority of students who entered American law schools in the fall of 1991 and that yield much less optimistic conclusions than Mr. Saltzman’s about the effects of such policies. It is therefore he, not I, who dismisses the only “clear evidence” currently available for inspection. He offers instead his personal assurance that preferentially admitted students do just splendidly at the University of Southern California law school. Perhaps, but I would be more inclined to take him at his word if it were not for the fact that University of Texas law-school officials made exactly the same soothing public assertions before Hopwood at precisely the same time that their internal correspondence revealed deep dismay at the poor performance of preferentially admitted African-Americans, both in the classroom and on the bar exam.

At this point let me note the results of the 1997 California bar exam, just released by the state bar association: 77 percent of white law-school graduates seeking entry into the California bar passed on their first attempt, as compared with 43 percent of African-Americans. Mr. Saltzman might be able to persuade me that his glowing claims about minority students at his own law school were true if he could demonstrate that this glaring racial gap does not hold for graduates of USC as well.

Bruce J. Terris may think that everyone “has known for at least two decades” that minorities were being admitted to law schools “with significantly lower scores on the LSAT than whites.” The issue, first of all, is not LSAT scores alone; preferentially admitted students have dramatically weaker college grades as well. Moreover, contrary to Mr. Terris’s contention, these facts were successfully concealed from the general public until recently. In my article, I noted that when Timothy Maguire, a law student at Georgetown University, released evidence in 1991 indicating that racial double standards were being employed at his school, the charge was vigorously denied by the legal establishment. It is now incontestable, however, that the racial gap is far larger than the proponents of preferences have ever admitted. And, as my article demonstrated, it is sentimental nonsense to think that GPA’s and test scores do not matter: they affect who survives law school and who ends up with a diploma, and they very dramatically affect who passes the bar exam.

Many schools give admission preferences to star athletes, so why not do the same for black and Hispanic students, as Mr. Terris suggests? President Clinton also made this argument when he met with me and other critics of racial preferences at the White House in December. If Mr. Terris knows of any law school that favors applicants who have displayed greater excellence on the football field than in the classroom, I would be interested to hear of it. Furthermore, race has properly been considered a “suspect” category in American constitutional law for more than a half-century, which has never been the case for athletic status. And anyone who has contemplated the position of athletes on many of our campuses will realize that double standards for sports have created a socially isolated academic underclass whose members concentrate on Mickey Mouse fields and often flunk out. The resulting stereotypes of “dumb jocks” are bad enough, but the stereotypes of “dumb blacks” that are created by lowering admissions standards on racial grounds are obviously far more pernicious.

I do not believe Mr. Terris is correct in predicting that without strong racial preferences we will return to the Bad Old Days when hardly any blacks were to be found in elite institutions of higher learning. The overall educational, economic, and social level of the black population has improved very dramatically in the 40 years since he attended law school. A majority of blacks in those days were still living in the South under the blighting influence of Jim Crow laws and customs. But that day is long past. Does Mr. Terris believe that African-American students will never be able to keep up with whites in any intellectual competition? Such paternalism is rooted in a pessimism about black capabilities that I do not share.

Richard E. Morgan and I are on the same wavelength, but I am a bit more optimistic than he is. I do not think he is right in saying that the news media were not sufficiently offended by the President’s attempt to mug my wife Abigail at the televised “town-meeting” on race in Akron, Ohio. We think this ploy was quite counterproductive for him, and actually gave our views more publicity than we had anticipated. I also feel increasing optimism about the progress we are making in raising public awareness of the distinction between racial preferences and the original conception of affirmative action as an effort to broaden the search for and expand the pool of qualified candidates.

David Robinson, Jr. is right that employing colorblind, merit-based admissions policies will not lead to a “proportionate black presence in legal education,” at least in the short run. But not many Americans outside the chattering class endorse the ideal of proportional representation for blacks and other groups in professional schools or in the professions themselves.

Although, as Mr. Robinson points out, the abolition of preferences in higher education in California has led to demands for abolishing the use of SAT’s and even for admission by lot, I doubt that these notions are going anywhere. They have gotten a good bit of press, but I am willing to bet that the faculty at the University of California will successfully resist any changes in admissions policy that will make the student bodies at Berkeley or UCLA indistinguishable from those at California State at Fullerton. And if many poorly qualified students enter the University of Texas and flounder as a result of the new top-10-percent admissions scheme, I expect that the result will not be a further retreat from meritocracy but a renewed commitment to it and a backing away from this unfortunate idea.

John L. McCormack’s hypothesis about how preferential-admissions policies serve to debase the credentials of blacks sounds plausible. But does he think that a black graduate of the Harvard or Stanford law school will earn a lower starting salary this year than a white from the same school because employers recognize that the former was probably admitted under a lower standard? I doubt it. So, before we can accept Mr. McCormack’s thesis, I think we need to have some empirical evidence to back it up.

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