Friday, March 04, 2005

Transcript of Debate On Rick Sander's Article Questioning Whether Affirmative Action Benefits African-American's
Well, not quite a transcript, but Tara Heumann, a 1L at Stanford provided this, and it is better than nothing.

Professor Sander
the group that does the most pro bono work while in law school are blacks
blacks are the most likely group to participate in student government
blacks do the most pro bono work once they graduate

black students are twice as likely as white students to fail to graduate from law school
black students are 4 times less likely to pass the bar on their first try
blacks are 6 times as likely as white law students to fail to pass the bar after several attempts
mismatch theory – students can’t perform ell when the gap is too large between their capabilities and those of their classmates

Sander’ theory: if affirmative action were ended and if blacks went to the law schools where their credentials were as good as whites, they would graduate, have higher bar passage rates, etc.

2nd guy – David L. Chambers (critiqued Sander’ work)

this theory of the mismatch and that if you corrected it, blacks would do better are total garbage
mismatch is unproven and if it were testable it would probably be wrong
does not believe that ending affirmative action is the way to raise the bar passage rate

Stuart Taylor –
Much of Sander’ article is devastating to the picture of affirmative action that the law schools have painted
43% of African Americans who enter law school never become lawyers – these are highly motivated people and he thinks this system isn’t doing these people any favors
- many of the African Americans who make it through the bar are paid less
- almost every law school in the country uses racial characteristics to pick the class (law schools’ preference were heavier than the undergraduate universities) see Grutter v. Bollinger 539 U.S. 306

Rachel Moran –Boalt Hall

Important how we frame this debate
- affirmative action in higher education was really a form of desegregation
- with the decisions of Bakke and Grutter converted corrective justice into diversity that is optional and depends on the progress of the education system
o we have converted this into an efficacy debate (it’s no longer a moral imperative of integration)
o it’s important to recognize an achievement gap and to address it
o different credentials going in and different achievements coming out – is this necessarily evidence of a mismatch?
In Sander’ article, there is no direct evidence of how law students learn and how this affects their performance – no student or faculty surveys or info about how the learning process goes on in law school
- large impersonal classes and study groups is the way most students learn in the first year
- this is cheap for law schools because they need fewer faculty members
- so learning depends on peer-to-peer interactions

Professor Banks asks questions:
Prof Sander, You spend a lot of time in your article identifying and describing racial disparities – but how do we explain these disparities and what should we do about them?
- you attribute this to affirmative action
- how do you identify the extent/magnitude of affirmative action?

Moran – giving points to applicants based on their race is just too rigid a system for evaluating candidates

Banks asks Sander: Why/how has affirmative action backfired?
- If credentials predict performance at all, you are going to replicate this gap with poor performance by black students in law school
- If you’re in the bottom 10th of the class, then you are going to earn a lot less than if you are at the top of the class at a less prestigious school
- He found that the dominant indicator of bar passage rate is GPA in law school
- If you look at similar blacks and similar whites before they enter law school, the blacks do less well – because we et them up for failure by sending them to schools where their white classmates have better credentials
Banks à Sander: are you advising admissions committees to discriminate against black students in order to help them out? Sander says no

Sander says that mismatch can happen for any student or group that is given preference in the admissions process, not just blacks

For students who would not be especially likely to ever practice law, would it be good for them never to have been admitted to law school?
- Answer: we don’t know what the human capital value of going to law school is – we don’t know if you’re better off if you don’t practice law

Bar passage and attrition – Banks says that black students don’t seem to have problems at elite law schools (shouldn’t they be exempted from the “no affirmative action” plan because black students don’t seem to have a problem there)

Chambers thinks that blacks are better off at elite schools

Taylor thinks that black students should receive disclosure information from the schools about their affirmative action policies
Chambers – why would you provide information by race if Sander wants to argue that it’s not race that makes the difference, but entry credentials

Sander argues that law schools need to be held accountable for their admissions processes and then they would have to compete with each other to provide the best student support and services for black and other students
- Banks says when he applied to law schools he didn’t give a shit about the median credentials of the black students that were attending different law schools
- What he would have wanted to know was how black law students did in their careers after they graduate from different law schools

1. Elliott [that's me!] – should top law schools not care about the cascade effect because their minority students are doing better at the top? Even though minority students are hurt down the line?
- Do not assume that black students would be better of at lesser schools
- Do not assume that academic mismatch is proven or that you are totally wedded to your entering credentials
o focus on admissions to the exclusion of the learning process is really stupid – don’t assume that entering credentials are you destiny
o if law schools want to eschew the questions of how they can provide a preferable learning environment because it would require work and money then we may not get anywhere
§ maybe schools have to decrease class size, maybe they have to hire more minority faculty members, maybe they have to provide some other kind of academic support for minority students, but if schools don’t want to do this, maybe we won’t make progress
2. Julia – clarify the figure that 43% of black law students don’t make it into the legal profession
- What are they doing instead? Maybe it’s of comparable prestige…
- Most of this group doesn’t even finish more than the first year
- Of the 50% that graduate, some don’t choose to take the bar

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