The U.S. Commission on Civil Rights has issued a report on racial preferences in law schools... [I]t finds that racial preferences for blacks actually reduce the number of blacks who become lawyers....Barone knows enough to put the word "seem" there. He must know the law schools care deeply about the success of our graduates. But I understand his point. It's that if we really wanted the ends we care about, we ought to abandon the approach to admissions that the commission criticized.
The report gives ammunition to those of us who have criticized [law school] 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.
But there is no "we" here. As Barone notes, the highest ranked law schools absorb much of the limited pool of minority applicants, and this affects the other law schools, which also want to admit minority students. The law schools are not all going to change at the same time, and we are are in competition with each other. If any school changes, others will look for ways to take advantage.
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The perception is true. When I was in law school, it was pretty much a given, at least perception wise, that a black student at the same level as myself would not be at the UW - they would be at Harvard or Yale. Certainly there were exceptions - I remember some very bright minority students at UW.
Now that the perception has been proven by facts... what now?
"the law schools care deeply about the success of our graduates"
That's a very broad and misleading statement. Schools are businesses, in general very badly run businesses, and they "care" about their graduates primarily in how graduates affect the school's reputation and ratings.
The case for affirmative action has always been rooted in pragmatism and has prevailed for decades because Americans value pragmatic results over abstract principles. Indeed, the SCOTUS has often been explicit on that point. Concurring in Bakke, for example, Justice Blackmun famously wrote that "[i]n order to get beyond race we must first take account of race. There is no other way….In order to treat persons equally, we must treat them differently." Similarly in the University of Michigan cases, Justice O'Connor set an arbitary 25-year time limit on how long she thought pragmatism would require that compromise with equal protection principles. More recently, those urging principle over pragmatism have been carrying the day at the SCOTUS, albeit barely. Last term, for example, CJ Roberts turned Blackmun's quote on its head: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Those who have argued for the color-blind principle have often also argued that the pragmatic case for affirmative action is deeply flawed. Richard Sander first made a detailed empirical argument questioning the results of affirmative action in law school admissions a few years ago, in a widely cited piece in the Stanford LR, and now the US Civil Rights Commission has picked up on it. Gail Heriot, a member of the USCRC, made the same argument in an op ed in the WSJ earlier this week.
Despite the doubts about whether AA results in real-world benefits in terms of increased diversity in the legal profession sufficient to justify AA's costs in terms of both surrendered principles and disillusioned minority students accepted into institutions for which they are poorly prepared, no one expects that affirmative action will end any time soon on American campuses. That agressive affirmative action programs are a GOOD THING is now an element of academic dogma.
Ann says that "there is no 'we' here," meaning that the schools are acting as competitors rather than conspirators. No doubt. But there is a "we" in a different sense: on these kinds of issues, American campuses and particularly the professoriate are as close to a monoculture as one can find. Dissent from the reigning dogmas, particularly on anything having to do with race, can be dangerous to one's academic career (the Hmong brouhaha at UW last year was similar although arising in a slightly different context); and the dogmas themselves are so entrenched that they are effectively beyond challenge or change except as a result of external pressure.
The result is that these policies are likely to continue unless and until the larger society forces a change. Don't hold your breath. In the meantime, the preening can proceed apace, as the unfortunate minority students caught up in an academic process for which they are not prepared will continue to be ground up and spit out, to fend for themselves.
Alas, R. Dolan is right on. And people like Tom Sowell told 'em so back when.
I'll refrain from being a one-note johnny and pointing out as I previously have on this blog that any perceived underrepresentation of minorities in the legal profession could be easily remedied by simply repealing the protectionist infringements on the right to earn a living that are the UPL statutes. I'm sure there are plenty of minorities (and non-minorites) who could never pass the peculiar artificial hoops designed by the bar examiners but who are nevertheless smart enough to learn the law in their area(s) of interest and provide good legal advice and services to others in their communities.
I agree. Want more black and Hispanic lawyers? Stop making it so difficult to be one.
IMO, you should just be able to pass the bar exam and have a college degree. No other experience neccessary.
Did John Marshall or Abe Lincoln have to spend 3 years in law school?
Did John Marshall or Abe Lincoln have to spend 3 years in law school?
No, and neither do you. You can apprentice with a lawyer while reading a whole bunch of law books, or just read a whole bunch of law books. Then take the bar. It's still an option.
Problem is, people who do it that way fail.
Also, our legal system is more complex now than it was then. They didn't have to contend with the administrative state.
The law schools are not all going to change at the same time, and we are are in competition with each other. If any school changes, others will look for ways to take advantage.
Maybe I'm slow, but I don't understand this passage. Exactly what competition would a law school lose by adopting color-blind admissions?
Mortimer,
There was an article in the San Jose Mercury just 2 days ago about a young Mexican immigrant who did just that. She read all the law books with a lawyer's assistance and took the California Bar Exam and passed it on the first try. She was sworn in by a judge and is not a legitimate member of the profession. Good for her.
I had a professor in an adult education class who was stationed on a small boat while he was in the Navy. To pass the time he read law books and when he got out of the service, he took the bar exam and passed it. He is now a lawyer in Louisiana.
"Want more black and Hispanic lawyers? Stop making it so difficult to be one."
Why stop with lawyers? Let's lower the bar to becoming a doctor as well.
Appointment-wise, you go first.
"Why stop with lawyers? Let's lower the bar to becoming a doctor as well."
Are you comparing doctors to lawyers? You've got to be kidding. Doctors deal with life and death; the vast majority of lawyers play word games.
No offense to Althouse or any othe lawyer, but you could kill off 1/2 the lawyers in this country and the country would be better off.
And no I'm not seriously advocating killing lawyers.
Any high-paying industry erects barriers to entry to protect those already initiated.
Being a stockbroker is not widely considered to require excessive academic capability. Certainly this industry is not racially integrated. It isn't even really gender-integrated yet. Unlike law schools, we don't even let AA candidates try.
To become a stockbroker one has to be sponsored by a member firm of the New York Stock Exchange. Then you study for three months (the time literally must pass before you can take the test), pass a test (on the first try - no do-overs) and within two weeks go through it again for a state securities license.
Then again, if you can memorize some regulations, divide 1 by 16 and express the result in decimal notation, you can pass the test.
The other part of this, that is only peripherally mentioned is the ABA proposal (or requirement?) for AA for law school accredidation. The relevance here is that some have suggested that the report that Barone mentions is in response to that.
The problem there is not that Harvard or Yale or UW is practicing AA, but that the ABA would be mandating it for all ABA accredited schools. That, of course, is likely to take AA out of the U. Mich. Law School case, since it would no longer be based on academic freedom and a desire for a (racially) diverse student body, but in order to maintain accredidation.
And the problem with ABA accredidation is that most states require graduation from an ABA accredited law school to sit for the bar exam. Indeed, states like Colorado and Arizona (the two where I was admitted) allow everyone else to sit for the bar after practicing for a number of years first. Thus, if you read the law (as suggested above) or graduate from a CA accredited law school, you have to practice for maybe seven years first before being allowed to sit for most state bars.
So, the report, on top of the Michigan law school case (and replacing the swing O'Conner) makes it likely that the Civil Rights Commission is going to sue for a civil rights violation if the ABA implements its proposal, and the ABA is highly likely to lose.
As a note, I got a call maybe a month ago from the ABA asking if I might want to rejoin. They charge based on how long you are out of law school, and I would have to spend almost $500 a year to belong. So, I said no, because of things like this. They talked me into taking their stuff for the next three months free, but I have no interest in joining after that. The phone solicitor suggested that I could change the organization more easily from the inside. Maybe, but I doubt it, and have much better places to spend my money.
The case for affirmative action has always been rooted in pragmatism and has prevailed for decades because Americans value pragmatic results over abstract principles.
It has prevailed because the people hurt by it are poor whites and Asians, who have little or no lobbying power. Nobody wants to listen to a poor white kid complain about how they lost out to a middle-class black kid; that sort of thing isn't newsworthy.
I have a confession to make. I failed the bar exam for my home state on the first try, despite having graduated from law school (thought that place was sposed to teach you what you needed to be a lawyer) and being a published author on law review and being in general a pretty good "test-taker." I obviously underestimated the exam and was very busy concentrating on writing an important brief for a dispositive motion in a case I was litigating as non-resident counsel in California (I was admitted in Wisconsin because of the "diploma privilege", which to Wisconsin's credit means I didn't have to pass a bar exam there). I found that the key in passing the exam handily the second time around was not really studying the law or the outlines Bar-Bri provided but taking multiple practice exams. I soon noticed that very many of the same questions were asked over and over each exam, with the wording slightly varied. My opinion is that as a measure of legal knowledge the bar exam is a complete waste.
Sloanasaurus said...
When I was in law school, it was pretty much a given...that a black student at the same level as myself would not be at the UW - they would be at Harvard or Yale."
What level is that Sloanasaurus? why don't you try some bootblack, dye your hair, put in contacts, shuffle along and just say "yussir masser fine day sure enuff" if that is what you think gets a black student into Yale rather than UW. You could go all out and attend a high school without the toots and whistles, one where they have to address the social ills in a society where little red headed supermen and women aren't the norm.
Or you could have studied harder, been more of a human being, get some culture and perspective, broaden your mind, learn to really think and put those thoughts out in something other than an Archie Bunker perspective and try it again.
Now lets hear your tale of woe that you were a poor boy with no shoes, no dad, no heat, trudging miles in the snow barefoot to get to a one room school with a potbellied stove to keep you and your people warm while the teacher made you gruel for a hot lunch...
John Kindley
That is likely one very common reason to fail the bar. I know one woman who failed recently. She has everything, a new husband, kids, and a father who is a good rain maker. She is plenty smart enough, she just didn't concentrate hard enough on prepping for the test.
I agree about the practice tests. Back when I was originally sitting for the bar, we could test in on the multistate test alone if we did well enough there. So, knowing I did much better on multiple guess tests, I concentrated on that test. The two weeks before the bar exam, I was taking a test and a half a day, and got my daily score above the required CO passing score (somewhere in the low 150s). I then took two days off, got rested, and managed to hit over 170 on the actual test (which turned out to be easier than the practice test).
I should note that when I took the AZ bar ten years later, I was working full time as a corporate patent attorney, and barely squeaked through on combined multistate and essay. My multistate score dropped some 25 points or so from my previous test. Indeed, part of the reason that state's pass rate was so low then was apparently a result of a lot of snow birds trying to pass the bar there decades after law school and without putting the serious study in that most typically do in the summer right after law school.
The case for affirmative action has always been rooted in pragmatism and has prevailed for decades because Americans value pragmatic results over abstract principles.
I would suggest just the opposite - that AA is a triumph of wishful thinking over reality.
No, and neither do you. You can apprentice with a lawyer while reading a whole bunch of law books, or just read a whole bunch of law books. Then take the bar. It's still an option.
In a few remaining states, and if you go that route, you will be limited to that state and a couple of others until you can show a certain number (my memory of CO and AZ is seven) of years of sucessful practice, and then you can actually sit for the bar in the other states.
But as I noted before, that also applies to non-ABA accredited law school grads.
The problem with repealing UPL statutes, etc. is that those in a position to repeal such invariably include a lot of lawyers. So, sorry, not likely in most jurisdictions. At least not until we can see how well it works, or doesn't work, in those jurisdictions that have a lot of paralegals, etc. working on their own.
As to medicine, and the claim that it is more critical because lives are at stake, I should note that physicians are just as bad as lawyers about keeping control over stuff that they don't really need to. Prescribing medicines? PharmD's are much better qualified, having had an entire doctoral program on drugs, while the average physician takes a single class on such. They often know just what the drug salespeople who manage to get in to see them can tell them, and are invariably amateurs compared to the ParmD's.
And why should pathology labs be run by MD's? Why not by a PhD in chemistry, who are often the ones who actually runs them? Again, the people working there often are much better qualified than the MDs who are raking in money through their "oversight".
Heck, why shouldn't an MBA be the one actually running a hospital, instead of the obligatory MD? At that level, it is more a business anyway.
"Why stop with lawyers? Let's lower the bar to becoming a doctor as well.
Appointment-wise, you go first."
Okay, I gladly will, cause I'd likely have to pay half as much for the typical appointment, where I'm confident that someone with half as many years of medical training as M.D.s are currently required to take could tell me I have pneumonia and prescribe antibiotics. Now if I'm shopping for a brain surgeon, that might be different, but even there I assume that a lot of the stuff that the brain surgeon had to take in medical school was not necessary for technical proficiency in brain surgery. But I definitely would want someone with a lot of training in actually performing brain surgery.
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