USCCR HEARING: LAW SCHOOL RACIAL PREFERENCES
Below is the complete transcript of the 6/16/06 Commission hearing as recorded by court reporting firm Neil R. Gross. The Commission convened in Room 540 at 624 Ninth Street, N.W., Washington, D.C. at 9:30 a.m., Gerald A. Reynolds, Chairperson, presiding.
PRESENT: GERALD A. REYNOLDS, Chairperson ABIGAIL THERNSTROM, Vice Chairperson JENNIFER C. BRACERAS,
Commissioner STAFF PRESENT: JOHN BLAKELEY COMMISSIONER ASSISTANTS PRESENT: CHRISTOPHER JENNINGS PANELISTS: RICHARD SANDER, Professor,
University of California at Los Angeles Law School A G E N D A PAGE I. Introduction, Chairperson Reynolds ..........4 II. Effects of Race-based Admissions Policies on Law Schools 1. Professor Richard Sander ..............9 2. Professor Richard O. Lempert .........18 III. Appropriateness of Equal Opportunity and Diversity Standard 211 1. Dean Steven Smith ...................122 2. Professor David Bernstein ...........127 P-R-O-C-E-E-D-I-N-G-S (9:46 a.m.) I. Introduction CHAIRPERSON REYNOLDS: Okay. On behalf of the Commission on Civil Rights, I welcome everyone. Okay. At this briefing a panel of experts will discuss some of the effects produced by race-based admissions policies in law schools. The first two experts testifying at this briefing will address whether the costs of racial preferences to African Americans outweigh the benefits. The second two experts will address the appropriateness of the American Bar Association's Equal Opportunity and Diversity Standard 211 and its accompanying interpretations. Standard 211 seems to require law schools seeking accreditation from the American Bar Association to practice racial preferences in hiring and admissions. This morning we are pleased to welcome Professor Richard Sanders, Professor at the University of California at Los Angeles School of Law: Professor Richard Lempert, Professor of Law and Sociology at the University of Michigan; and Steven Smith, the President, Dean, and Professor of Law at California Western School of Law and the Chair of the Council of the Section on Legal Education and Admissions to the Bar of the American Bar Association; and finally we have David Bernstein, a professor at Georgetown University School of Law. MR. BERNSTEIN: George Mason. CHAIRPERSON REYNOLDS: Oh, I'm sorry. Oh, I'm sorry. What did I say? MR. BERNSTEIN: Georgetown. CHAIRPERSON REYNOLDS: Oh, okay. MR. BERNSTEIN: Three Georges around here. So -- CHAIRPERSON REYNOLDS: Okay. Thank you for the correction, and that was no slight aimed towards your institution. I welcome all of you on behalf of the Commission. I will introduce everyone and describe your activities and then I will call on you according to the order you have been introduced into the record. First Professor Sander and Lempert will address the issue of the benefits and costs of radial preferences to minority law students, which Professor Sander has analyzed at length in a recent Law Review article. Then President Smith and Professor Bernstein will address the ABA issue. I'm just going to provide a background on each of our panelists, and at that point we can start. Professor Sander attended Harvard College in the mid-1970s and graduated magna cum laude in social studies in 1978. Professor Sander attended graduate school at Northwestern University from 1983 to 1988, earning degrees in law and economics. In 1989, Professor Sander joined the faculty of the UCLA School of Law where he became a full professor five years later. During this period he pursued two new interests, the first being the reasons behind the American legal profession's explosive growth since the mid-1960s, and the structure and effects of law schools' admissions policies. In 1990, he designed a new admissions policy which was adopted by UCLA's law school that sought to calibrate objectively the differences in college quality and the grading that most graduate programs take into account in evaluating the college transcripts of applicants. In 1995, he published a comparative evaluation of seven academic support programs used by the law schools to help academically struggling students. The studies sought determine why some programs produced real academic benefits while others had no measurable effect. I could go on. I could spend quite a bit of time discussing each of your CVs, but I will truncate my comments so that we can listen to you. Next up we have Richard Lempert, who is the Eric Stein Distinguished University Professor of Law and Sociology at the University of Michigan. He is also the Division Director for the Social and Economic Scientists at the National Science Foundation, the recipient of the Law and Society Association's Harry Calvin, Jr. prize for outstanding socio-legal scholarship and a Fellow of the American Academy of Arts and Sciences. Professor Lempert's interest in applying social science research to legal issues is reflected in his work on juries, capital punishment, and the use of statistical and social science evidence by courts. His book, A Modern Approach to Evidence, pioneered the problem oriented approach to evidence. It was originally published in 1977, and it is in its third edition and continues to hold its place as a leading course book on evidence. Next we have Dean Smith who is President, Dean, and Professor of Law at California Western School of Law in San Diego. He is also Dean and Professor of Law at the Cleveland Marshall College of Law of Cleveland State University. He also served as Deputy Director of the Association of American Law Schools in Washington, D.C. and Professor of Law, Associate Dean and Acting Dean at the University of Louisville's School of Law. He is an associate in medicine at the Medical School at Louisville. He received his Baccalaureate degree from Buena Vista College, his law degree from the University of Iowa College of Law, and a Master's degree in economics from the University of Iowa. Dean Smith has taught a variety of courses primarily in the areas of law and medicine, mental health law, and torts. In addition to teaching in law school, he has taught at the University of Louisville, School of Medicine and was a Director of the Medical Institute for Law, co-sponsored by the Cleveland Foundation and the Cleveland Marshall College of Law. Professor Bernstein is a professor at the George Mason School of Law in Arlington, Virginia, where he has been teaching since 1995. He was a visiting professor at Georgetown University -- maybe that's where I got it -- Law Center for spring 2003 semester and is a visiting professor at the University of Michigan School of Law for the 2005-6 academic year. Professor Bernstein is a graduate of Yale Law School where he was senior editor of the Yale Law Journal and a John M. Olin Fellow in law, economics, and public policy. He has authored over 60 scholarly articles, book chapters and think tank studies, including recent or forthcoming articles and review essays in the Yale Law Journal, Michigan Law Review, Northwestern University Law Review, and other prestigious publications. Okay. Professor Sander will speak first for ten minutes, and after he finishes up, I will hold everyone else to that ten-minute limit, and then we will have a question and answer session. Professor Sander. II. Effects of Race-based Admissions Policies on Law Schools PROF. SANDER: Thank you very much, Commissioner. And thank you very much to the Commission for having this hearing today, and to the patient audience members who have in many cases been standing waiting for us. I think it's a very important subject, and I'm very glad the Commission is focusing on this. There is a hidden scandal in American legal education today. It has been brewing for over a generation and is now coming to light. It's the case in American law schools that half of all African Americans who enter law school end up in the bottom ten percent of their class at the end of their first year of law school. African Americans will fail to graduate from law school at two and a half times the rate that whites do. They will fail the Bar in their first attempt at more than four times the rate that whites do, and they will fail to pass the Bar after multiple attempts at more than six times the rate that whites do. That is an enormous disparity, and it should be disturbing to everyone who encounters it. But what is really disturbing about this, the real scandal here is that these disparities are largely the results of policies of law schools themselves, and that's what I would like to talk about briefly today. I'm only going to be able to cover some of the high points, but I hope and encourage members to follow up on various points that I mention, and in particular, I hope that they will follow up and ask me about the points that Dr. Lempert mentions. The theses that I'm outlining have been controversial, but I believe there is overwhelming evidence in support of every single one of them. So how does this happen? How is it that law schools actually make outcomes worse for blacks and other minority students? Well, the first problem is that law schools use essentially race norming practices to achieve specified racial diversity goals in their entering classes. The science that we don't have access to today, but which I'll forward to the Commission after the hearing shows clearly that if you compare the college at the University of Michigan, the undergraduate college, which was the subject of the Gratz litigation that concluded before the Supreme Court in 2003, if you compare with what that undergraduate college did with what the Michigan law school did, you see that the mechanical types of automatic preferences that went to minority students at the college are practiced even more vigorously by the law school. This is a point that was missed by Justice O'Connor in her opinion, but many other members of the Supreme Court noted it and commentators throughout the country noted this as well. I argue this in my systemic analysis article, and it has since been vigorously argued by Ian Ayres in an article that's coming out later this year in which he shows that the law school used heavier preferences than the college did and gave more mechanical weight to race and its consideration of individual applicants. So Michigan Law School failed the test that was set for constitutional practices, and it's typical of practices throughout law schools. Now, what's disturbing about this is not that individual law schools engage in these preferences. What I find most disturbing is that the practices are not self-curing or self-limiting. They extend themselves. They pervade through the entire system, and that occurs through something that I call the cascade effect. When an elite law school uses race norming to achieve racial balance in its class, it essentially sucks up a lot of the qualified African Americans, those who would get into that school without any consideration of race, but also those who would be admitted to less elite schools without consideration of race. And if you think of law school as a series of tiers in which education and pedagogy proceeds in different ways and at different levels, the elite schools are pulling up people from the first three tiers, and the second tier schools then have a choice. They can either have a largely racially segregated student body or they can admit minority students who come from even lower tiers of the applicant pool. Almost every school chooses the second option, and as we'll discuss in part of the panel today, the ABA tries to make sure that that happens. So this cascade effect spreads throughout all legal education and causes every law school except for the mostly minority schools to have race norming and have very large academic disparities between blacks and whites. And I'm not talking about tie breakers. I'm not talking about small disparities. I'm talking about enormous disparities, the sorts of disparities that can produce very large differences in academic achievement. And 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. Now, it might not matter even if we had this problem. I mean, there's a certain amount of demoralization. There's a certain amount of negative stereotype and that can result if we have racial disparities in racial performance in law school. But if getting bad grades for the elite school had the same career effects as getting good grades at a less elite school, then we might not be that concerned about these results. But those two things do not actually balance out. Every way that one analyzes the problem shows that grades are more important and eliteness. They're more important in graduation, but they're especially more important in Bar passage. If you do the regression analysis that tries to compare what weight grades have compared to school eliteness in determining who passes the Bar, grades totally swamp eliteness, and if you do the analysis in any number of other ways, you get the exact same result. So the result of these preferences is to severely academically disadvantage minorities who are being admitted to more elite schools. It handicaps them, and it leads to these large disparities in graduation and bar passage rates. Even that defenders might say it is an acceptable price if, you know, we see dramatic long-term benefits in the job market, you know, if those who manage to graduate and pass the Bar are able to reap enormous benefits from being affiliated with a more elite degree. We see that to some extent at the most elite law schools, but up and down the range of law schools, employers also give more weight to academic preparation, law school grades than they do to school eliteness. On average, African American graduates who manage to finish law school and pass the Bar are earning about $10,000 a year less because of preferences than they would in a race neutral regime, and those starting salaries are only a precursor to even more serious disparities that evolve later on. So we have this whole domino effect of very serious results that cumulate and build on each other, and have dramatically handicapped blacks in trying to achieve progress and parity within the legal profession. I think I only have a couple of minutes left. So I'd like to talk briefly about policy recommendations. The Commission sent to me a copy of the disclosure bill that was submitted by Congressman King. I believe that this is a very important step and a very important direction. The idea of the disclosure bill is essentially to require institutions of higher education to provide detailed data on the way their emissions process works, how they make decisions, and to explicitly consider and disclose the way they take race into account in their admission decisions. Now, I'm not under the illusion that this is going to produce complete candor for institutions that are required to do it, but if you think about it, this is essentially identical to what we currently require financial institutions to do under the Homeowner Disclosure Act and the Community Reinvestment Act. The provisions are almost exactly parallel, and from my own experience with Freedom of Information Act requests, I find FOIA to be a very limited tool in getting the kind of information that would be provided through this mechanism. It's also the case that African Americans come into law school not realizing the tremendous disadvantages under which they're admitted. I'll elaborate on that in the question and answer period if I'm asked about that. Other relevant policy initiatives, I think it's very worthy for the Commission to endorse the idea of a national exit exam for college undergraduates so that we would have data comparable to what we have for law students on the Bar exam. That would help us understand whether mismatched effects are occurring at the undergraduate level. I think state Bars should be pushed aggressively for additional disclosure. We need to know what's happening. There's a lot of evidence that these trends that I discussed have gotten substantially worse in the last ten years, and there's a lot the Commission can do to bring this better to light. I also think the Commission can support very important, relevant research, including the appointment of a panel of experts, expert social scientists to provide some objective review to the debate that we're discussing today. There has been a lot of involvement of affirmative action partisans in the debate, but neutrals who can really bring sobering analysis need to be encouraged, need to be supported by a legitimate organization like this to enter the debate and weigh in. I think that would be critically important in providing additional impetus and balance to the discussion. Thank you very much. CHAIRPERSON REYNOLDS: Okay. Well, you gave up 18 seconds. That's your prerogative. Professor Lempert. PROF. LEMPERT: Thank you. You'll have to imagine a nice gentle yellow in the slides with things going in. Just let me state at the outset my values. I believe in integration. I grew up in the '50s and '60s. I believe in integration in society, in the profession, in our law schools. CHAIRPERSON REYNOLDS: Excuse me, sir. Please attach the microphone. PROF. LEMPERT: I'm sorry. Start my time again, if you could. (Laughter.) PROF. LEMPERT: Thank you. I believe in equality. I believe in diversity, particularly in law schools. I was teaching evidence when O.J. Simpson was being tried, and I was lucky enough to have about ten percent of my class black. So I had a number of people who thought O.J. might be innocent, and some who thought he was guilty. What was really nice, I had some black students in my class who thought O.J. was guilty. It showed it's not just a race difference because of diversity. And I believe in sound social science. I and colleagues did a major study of Michigan's graduates, affirmative action graduates over a 27-year period. I might note that in the written testimony the Microsoft gremlins were at work. I wrote we took special care to check for non-response bias and found considerable evidence that this was not a serious concern. Microsoft put in and found considerable serious concern. DEAN SMITH: That's right. Bill Gates just quit. PROF. LEMPERT: Yeah. But, for example, at Michigan in the 1970s, 98.5 percent of our respondents graduated and passed the Bar. In the 1980s, 95.1 percent; 1990s, 96.1 percent, pretty much the same as our whites. We also looked at what made for high income, what made for service, what made for satisfaction with career. Minority status and being black had no role, nor did LSAT scores have any role in predicting who was earning what money or who was satisfied with their career. It did turn out that minorities and blacks in particular did more service than whites did, and none of this is inconsistent with what Rick Sander had found in his work. The people at the top schools, at the leading schools, blacks and other minorities do extraordinarily well after they graduate both in graduating law school and in passing the Bar and in earning extremely high incomes. Why does affirmative action at the top schools matter? Well, 60 percent of all black law faculty attended the top 20 law schools. Forty percent of black judges and 50 percent of Latino judges are from the top 20, as are 75 percent of black partners at leading corporate law firms. If we were to abolish affirmative action, it would hit these schools the hardest because they're the fewest blacks who would otherwise qualify on the basis of credentials. Are the results that Rick Sander gave you reliable? We've debated this both orally and in print. I'm not going to dwell on this issue today. I refer you to my written testimony and to the articles referred therein, but I will tell you that of the articles I know of in print or draft, the following people disagree with Rick's conclusions: Ian Ayres, who he cited favorably, and Richard Brooks, Yale professors with Ph.D.s in economics; Michelle Dauber, Stanford law professor, Ph.D. in sociology and law degree; Daniel Ho, government Ph.D., Stanford professor; Jesse Rothstein, Princeton economics professor; Albert Yoon, Economics J.D., I think, at Northwestern; Kathy Barnes, J.D., Ph.D. in statistics, and several others. What about people who have supported Rick Sander's position in print or in draft I know of? I know of no one. Okay. I want to get to the other questions, which the Commission asked. The effect of ending affirmative action on the number of new black attorneys. There were 4,000 black attorneys, more or less, in 1970, 40,000 in the 2000 census, probably about 45,000 today. Many of them were there and got their education due to affirmative action. If we were to abolish affirmative action, though Rick predicted in print there would be a 7.1 percent increase in the number of black attorneys, we think there will be a much more substantial decrease. The number of applicants accepted would range from about 14.1 percent in 2001, a drop of 14.1 percent, to a drop of about 32.-some odd percent in 2004, 29.4 percent in 2005. The number fluctuates so greatly because it depends on the number of whites who are applying to law school. The total drop in black attorneys entering law school would be somewhat less on this model, ranging up to 21 percent, but this is a bare bones minimal estimate. Our estimate is it will be far lower. The reality of black performance. This is a serious issue and one that should concern the Commission. About half of black students entering accredited law schools in 1991 graduated and passed the Bar, which means that half, actually slightly lower than half did not. That is something which is a serious concern whatever side you are on, on this issue. The situation should, however, be better today. In 1991, 22 percent of black martriculants at law schools had index scores below 500, which is the true danger score for failing to pass the bar. In the last three years, that figure below 500 has ranged between four percent and eight percent. The bottom 15 percent of blacks are not in law schools anymore, but the Bar may be tougher. If the Bar is tougher, that's just another issue that concerns the Commission. Is it tougher because it was passing people who were not competent to be attorneys? That's one thing, or is it tougher because it's a movement by a cartel to limit the number of lawyers which has a serious adverse impact on blacks? The causes of low rate success. You asked for that. One cannot blink at the fact that one cause is lower skill levels, as indicated by LSAT UGPA scores. A low index score increases the risk of failure, but by no means means that risk is certain. A cause which is not a cause is mismatch. The problem is not that a black attorney or black lawyer or law student is going to a school where he fails, where if he went to a weaker school he would pass. If anything, the data suggests particularly for those attending the best schools a reverse mismatch effect. A second cause of black failure is greater financial need. One reason why so few blacks fail to graduate and pass the bar is they fail to graduate, and the most common reason they fail to graduate is unmet financial need or a sense of financial difficulty or a sense their law degree will not pay off to the extent it is worth paying for law school. And then there is a third set of causes. These are racially related. Hostile or uncomfortable environments, stereotype vulnerability, discrimination, and the like. What are the cures? In large measure the cures do not lie in law school or even in our universities. They lie in pre-K through 12 education. They lie in improving the skills of blacks at all levels from the time, even before the time their formal education begins. But they also include more adequate financial support. They include a more welcome, more supportive environments. They may include actually more affirmative action. In Michigan, I think, our black students have flourished as the number of black students has increased, and they include more research and why individuals succeed and why schools succeed because there are law schools in which blacks do every bit as well as whites with similar credentials. Then finally, let me just conclude with one factoid for you. If affirmative action is defined as securing admission to a school when one's LSAT and UGPA index predicts admissions denial, then in 1991 according to a model that Linda Wightman advanced, 2,748 black students secured law school admission through affirmative action. They would not have been there but for affirmative action. In that same year, 6,321 white students secured law school admission through affirmative action, and had we only based law school admission on credentials, more than two times as many white students as black students would not have gotten their education. Thank you. CHAIRPERSON REYNOLDS: Okay. Professor Sander, would you care to respond to Professor Lempert? PROF. SANDER: Yes, thank you very much. Briefly -- COMMISSIONER YAKI: Point of order. CHAIRPERSON REYNOLDS: Yes. COMMISSIONER YAKI: Was that agreed upon? I thought we were going to go through all four and then with questions. People will preserve their time or it's just going to be -- CHAIRPERSON REYNOLDS: We basically bifurcated it. COMMISSIONER YAKI: Bifurcated it? CHAIRPERSON REYNOLDS: Yeah. COMMISSIONER YAKI: Okay. PROF. SANDER: Let me just briefly touch on the main points Professor Lempert mentioned. In terms of values, I share the values that he articulates, and I've been very active in civil rights in Los Angeles. I was President of the Fair Housing Commission in Los Angeles for many years. Many of the arguments that have been advanced have been at a far superficial media appeal and don't bear close examination, and one of the reasons why I strongly urge the Commission to appoint a body comprised of eminent social scientists who are politically neutral to examine these issues closely is because the facts are overwhelming. The facts speak for themselves, and the facts have been systematically distorted by Dr. Lempert and others making arguments in defense of affirmative action. Let me just give you a few examples. Dr. Lempert consistently cites Michigan Law School as an example of affirmative action working, and his evidence for that lies primarily on a study, well, pretty much entirely lies on a study that he did in 1997-98, when he sent out surveys to Michigan alumni. He matched a survey of women alumni who generally under performed against minority alumni and then compared the results. What he doesn't mention is that at most only half of the blacks who received that survey responded, and he gets numbers that he has cited over and over again, like a 95 percent ultimate Bar passage rate for African Americans, that are incredible and totally inconsistent with the other things that we know about Michigan's successful Bar passage rates. So if you take the white and black Bar passage rates for Michigan and you figure out what that implies about first time Bar passage, it implies something like a 95 or 96 percent Bar passage rate. But the State of Michigan has provide Bar down at the University of Michigan that shows it has a much lower Bar passage rate. In California, out-of-state Michigan students perform worse than UCLA students perform. So what he's really reporting is a skewed sample in which blacks who never passed the Bar at Michigan choose not to respond to a professional development survey that asks about their accomplishments as lawyers. It's not very surprising. He talks about, well, the last statistic that he cited where he said that 2,700 blacks and 6,000 whites would not have been admitted to law school without preferences. Well, the analysis that he's talking about …is simply analysis of who would have been admitted to that particular law school. It's not analysis of who would have been admitted to law school generally. So because there are 180 law schools and they each admit mostly from a fairly narrow band, that type of analysis totally obfuscates what's really going on. What you have to look at is who would have gotten into law school somewhere. Who would have received a legal education? Again, he argues that the causes of black failure in law school have to do with financial aid. They have to do with an unsupportive environment, and so on, but there's no evidence to support this. Two thirds of the blacks who drop out of law school after their first year are in the bottom five percent of their classes. Is that because of financial aid or is it because they believe that they're not going to graduate and pass the Bar? I think it's pretty obvious, but if you do the regression analysis and you see how do people perform and you control for both their undergraduate institution and their LSAT and undergraduate GPA, race washes out. There may be some small negative effect of race. For example, I've done some research suggesting that blacks who join study groups in law school ten to have difficulty getting into groups that have sort of high achieving members, probably because the negative stereotyping arises only from racial preferences. And that has some small negative impact on their performance. But overwhelmingly, these results are entirely due to preferences. There's no statistical difference in overall performance rates when you control for the incoming preferences of students. CHAIRPERSON REYNOLDS: Okay. At this point, Professor Lempert, would you care to respond? PROF. LEMPERT: Yeah. I just want to comment on one thing Rick said in his presentation and then I'll comment on some of the comments he just made. His idea that school eliteness is overwhelmed by grades comes from work with the After the J.D. study that he had like six other co-authors on. All six other co-authors disagree with him on that conclusion. The things he said about my study about Michigan, I should note the study won a price as the best social legal article published in the particular two-year period it came out. One major reason it won that prize was that care that we took in insuring that our sample was not substantially biased, that the problem is not a low response rate in surveys. The problem is a biased response rate. But we had a lot of information on the non-respondents, on the non-responding black students because we knew what their LSAT scores were and what their law school grades were, and they were very, very close to respondents. We also through Martindale-Hubbell other sources could trade them into the field, and we also knew that most of the people didn't respond were active in the Bar. So that's not the serious problem that 50 percent number would have you believe, and it has been professionally recognized not to be a serious problem. There is a place where I agree with him, I should note. We both strongly support commission if you have the money commissioning neutral people to analyze the data, and we both think we know how it will come out. I do know how it will come out. I should also note that the information that we have that our alumni is quite consistent with work that David Wilkins has done with Harvard's black alumni. I can't resist this back and forth UCLA-Michigan. Bar passage rates in California change year by year. There have been years during the period of our study when Michigan graduates had a far higher Bar pass rate in California than UCLA or any other California in-state school. That fluctuates from year to year. You know, there are always people towards the bottom of the class, and it is true that black students tend to have the lowest grades. Most of them pass. They pass through school, and I think if you look, many of them pass the Bar. It depends on what level school they're at. If there were no blacks in your schools, there would be whites in the bottom five percent of the class. It doesn't tell us very much. The real issue is what have they learned, what is their skill level, and to go to Rick's work, the issue is whether the so-called mismatch plays any role at all. That is his hypothesis. We both in a sense agree, I think, that the skill levels of some blacks is responsible for their failure to graduate or pass the Bar, but where we really disagree is whether we'd be better off without affirmative action, without the so-called mismatch. And I gave you a list of probably ten different people, including some people Rick thinks very well of at leading law schools with terrific degrees all of whom disagree with Rick's mismatch conclusion. He is unable to cite anybody in print who agrees with his conclusion, as eloquent as he is when he makes presentations of this sort. And, again, he does a survey, and he accepts the data he wants to accept, and students tell us that they're dropping out of school for financial reasons. He ignores it and says, "Well, they have low grades. That must be the reason they're dropping out of school." They tell us it's financial. The last point, which is a difficult point I just want to make here, and this is the issue. What does one do with the situation in which based on, let's say credentials in a school a black student has a 50 percent chance? In advance we might predict a 50 percent chance of graduating and passing the Bar. Do we say that is too much of a risk; we're not going to admit you," or do we say that a risk which is up to you to decide whether or not to take? Now, 60 years ago when my father, who was not a lawyer, but he wanted to be a lawyer, was a young man and might have gone to law school and some of your parents might have gone to law school, this was not an issue. Law school tuition could have been 60 or $100. Everybody who wanted to go could go to some law school. They didn't have to pay very much. A third of them would flunk out even out of the best law schools after the first year, and the others would sink or swim on the Bar and in law practice. So the law was the most egalitarian of all professions. Anybody who wanted to risk it could get in. That has changed today. So, you know, there's a real question of what do we want to do. Rick has another suggestion which I do not think is silly, that I think we have to deal with with great care, which is at least we tell people what those risks are and let them decide for themselves, but without affirmative action, we would have far fewer black lawyers. We would have far fewer black lawyers in the future. We'd have very few black professors because they would not be at the best schools, black partners are major law firms and the like. And as someone believes in integration and equality, I think that would be a tragedy. CHAIRPERSON REYNOLDS: Okay. Commissioner Yaki, I suspect that you have a comment or two. COMMISSIONER YAKI: No, I'll wait. I'll wait. CHAIRPERSON REYNOLDS: Okay. COMMISSIONER BRACERAS: Are we -- COMMISSIONER KIRSANOW: Are we questioning now? CHAIRPERSON REYNOLDS: Yes. COMMISSIONER YAKI: Oh, okay. CHAIRPERSON REYNOLDS: Commissioner Kirsanow. COMMISSIONER KIRSANOW: Professor Sander, you do not disagree with the decision in Grutter v. 18 Bollinger, do you? PROF. SANDER: Well, yes, I do. COMMISSIONER KIRSANOW: Let me back up. PROF. SANDER: Okay. COMMISSIONER KIRSANOW: If the suppositions made by Justice O'Connor are correct, that is, the suppositions she made that the University of Michigan Law School race was only a flexible plus factor, just a feather on the scale, would you disagree with the outcome in Grutter. PROF. SANDER: Thank you for rephrasing that. I'm somewhat agnostic about it, but I certainly have throughout my life supported affirmative action of that kind. I have always thought that we should not completely preclude the consideration of race if we could show that that really made a difference. In the early 1970s and late 1960s, I think affirmative action was important and convincing blacks and other minorities who had historically had very little access to a legal education that things had changed, and we saw a dramatic increase in interest among minorities at that time. It's the case now that blacks who graduate from college are more likely to apply to law school than whites are. So I think in changing attitudes and singling opportunity, affirmative action can play an important role, but as I think you're alluding to in your question, the problem with Grutter is that Justice O'Connor's empiricism was all wrong. She misunderstood how the Michigan law school program worked, and she accepted at face value a lot of very dubious assertions about the benefits of affirmative action as it operated. COMMISSIONER KIRSANOW: In Graths the finding was that the 20 point advantage afforded to blacks and Hispanics was the equivalent of full grade point average or a perfect LSAT score. You've posited that the advantage of the law school level, despite the fact that there was this holistic review was even greater. And what do you base that on? PROF. SANDER: Well, if I had the slides it would be easier to show, and I can send those to you later. If you analyze cohorts of applicants and look at the admissions rate, you get a very stark pattern. If you sort of put the law school and the college on both a 1,000 point scale and you equalize the way that they weigh two different factors, the 20 points in the undergraduate case becomes 140 points -- no, I'm sorry -- 120 points, and the law school's system becomes a 140 point difference. So it's about an extra Senate. The article that I mentioned by Ian Ayres uses completely different methodologies but looks at similar data and comes to exactly the same conclusions. He finds that the law school gave substantially more weight and did it in, if anything, a more mechanical way than the undergraduate college did. And my evidence, my research on other law schools finds that Michigan law schools' practices were entirely typical. You get almost the exact same statistical output when you put in similar data from other law schools. CHAIRPERSON REYNOLDS: Commissioner Braceras. COMMISSIONER BRACERAS: First just a brief comment about the debate. I find it a little bit unfortunate that part of the discussion here has revolved around who won what prizes and who has more academics lining up behind them. Because I think as we all know, you know, the child pointing out that the emperor isn't wearing any clothes is often the lone voice crying out in the wilderness. So to be somebody who is pointing out evidence of things that are going on in society and to be the only person currently making those claims does not necessarily make that person wrong. So I would much rather have heard more of a discussion about the data itself and why you believe it to be wrong than to hear a list of who's on who's side because that to me is an irrelevant question. PROF. LEMPERT: May I respond? COMMISSIONER BRACERAS: Sure. PROF. LEMPERT: To that point? That if you look at the Daubert case, for example, one of the major considerations the courts look at in deciding whether scientific evidence is admissible is whether it's replicated and peer reviewed. These people are highly reputable social scientists. These are not people who, you know -- many of them did not have a large stake in the debate, and they kind of consistently in one direction using many different methods, all of which are inconsistent. In the time I have, without benefit of PowerPoint, it is impossible to go into the technical details of the problems. You will find them described in some detail, the testimony. You'll find them described in much greater detail in two articles, one on the Web and one in Stanford Law Review which I have written, as well as in articles that other people have written. Rick himself, if you read his reply in the Stanford Law Review, you will find he, in essence, repudiates his original methodology. He develops a completely different methodology. He achieves the same outcome, but ironically it's an outcome and a method which is inapplicable, given what he had just told you today. He has just told you that law schools mechanically admit law students based on their LSAT and undergraduate grade point averages. If that is right, if that's how they select law students, then his second methodology which looked at something called selection bias would be an apposite. So you can read his own reply to see that he argues that the data and methods he used in his original article were not the methods that should have been used. PROF. SANDER: Commissioner, I know you -- COMMISSIONER BRACERAS: Please. PROF. SANDER: -- you are trying to get to your question, but very briefly, on that last point the missing variable is undergraduate quality, which every law school takes into account college quality, but none of the disclosed data has that, and that explains the anomaly that Rick is referring to right now. But the large point is very well taken, I think. When my article first came out, there was a substantial effort to buy a lot of stout defenders of affirmative action, to simply say this isn't even social science. Professor Dauber at Stanford said it was cold fusion, and Rick Lempert endorsed that. That was before he found out that the University of Michigan press had decided to publish a book based on my research, and in that book we're going to have six eminent social scientists commenting on the work. So the problem has been, as I think you suggest, that when you're exposing a raging scandal at a set of institutions that has been defended by the palace guard for decades, it is very hard to induce other people to come and jump into that debate. I receive dozens of E-mails and calls, some from people who later published studies that appear to be somewhat critical, saying this was wonderful research and badly needed. I'd also like to point out that of the various critics that Rick mentions, there are enormous internal contradictions between their work. He mentions Jesse Rothstein of Princeton and Albert Yoon at Northwestern who did a very interesting analysis. They ignored what I think was the most relevant data to the point they wanted to ask, but they reanalyzed the data in my original article, and they found that there was substantial evidence for a mismatch effect, although they said that it was limited to the bottom 80 percent of all of blacks going in law school. So, you know, Ian Ayres and his co-author, again, cooperate in many of the findings in my research. Members at the AJD who he mentioned who he says are opposed have privately told me that they support a lot of the research. And Rene Didivitzer, one of the members of the AJD, did an extensive replication of my analysis of how grades and elitists interact in earnings and came up with substantially the same results. So I think the statements are wrong. COMMISSIONER BRACERAS: My comment was simply to say that I think sometimes just because somebody is the only person saying something doesn't mean that what they're saying lacks value, and over time often those lone voices in the wilderness in history have been proven to be right. So the fact that you may be able to muster a certain number of experts to support your position at this moment in time doesn't prove the ultimate truth of your assertion in my view. All that being said, I'd just like to ask you very specifically, Professor Lempert, how you believe African Americans would be worse off without affirmative action at elite law schools. In other words, how would -- if, for example, some of the minorities that currently attend Harvard and Yale were to instead attend Boston College and University of Virginia or Georgetown, how would that make them worse off in the long run? PROF. LEMPERT: It would make them worse off in a number of ways. First, let me just say as a teacher it would make the law schools worse off. I gave you the example -- COMMISSIONER BRACERAS: Wait, but that's -- PROF. LEMPERT: I'm just -- COMMISSIONER BRACERAS: Wait a minute. Let me. That is a completely different question because -- PROF. LEMPERT: I understand. COMMISSIONER BRACERAS: -- because that, the answer to that goes to how you as a white professor feel about yourself. In other words, law schools often like to justify affirmative action by their own white guilds, I think, frankly, and they often justify it by saying, "Well, we feel better about ourselves because we have these people here." But the question that I think Professor Sanders' research is asking and the question that I'm asking you is how does it help or hurt the alleged beneficiaries. PROF. LEMPERT: I understand. COMMISSIONER BRACERAS: I don't care how it helps or hurts Yale or Harvard. PROF. LEMPERT: I understand. I'm going to get there, but I want to say I don't feel guilty at all, and when I say worse off, it's because of the dynamics of what happens in the school, but let me go on to the question of how would they be worse off. They'd be worse off in the same way that white students are worse off who go to Boston College instead of Harvard. They'd be less likely to have entry into law school teaching. They'd be less likely to get high paying jobs at the most coveted law firms. They'd be less likely to have careers that bring them to federal and other judgeships over their lifetime. In every way that white students who go to Harvard and Yale and Michigan and UCLA and Chicago go there because they know they will be better off if they went to other perfectly good schools. COMMISSIONER BRACERAS: I mean, is there empirical data that demonstrate that? Because I mean, if you look, just to take one segment of the profession, if you look at partners at major national law firms, I'm not sure that partnership decisions were in any way based on where somebody went to law school. Partnership decisions are based on billable hours and revenue generation and all of those other things. Now, -- PROF. LEMPERT: But the people who are hired at those -- I mean, just to give you an example, looking at Michigan, Michigan gets probably two or three recruiters who visit the school to recruit students for every student they have on the job market. Schools like BU may get one or may get less than one recruiter per student. If you look at the people who are hired by the law firms, if you look at the people who go into teaching, I gave you the -- 60 percent of black law teachers went to one of the top 20 law schools. I don't know what the data is for whites, but my hunch is it's pretty similar. It may even be more extreme. If you look at partners in major law firms, white partners, you'll find that overwhelmingly they come from the top 20 law schools. Why do they come there? Because they're the ones who get the jobs. CHAIRPERSON REYNOLDS: Professor Lempert, why shouldn't similarly situated black students be treated like their white counterparts? So if they get into St. John's Law School, they have the benefits and the burdens of attending that school along with their white counterparts. What's wrong with that? Isn't that how it's supposed to work? PROF. LEMPERT: Well, if by similarly situated you mean whites and blacks going to St. John's, you have a lot of people who don't make it in law practice at all. So a lot of them take low paying jobs. You have almost none who go to major law firms. You have almost none who go to law teaching. CHAIRPERSON REYNOLDS: You're not saying that unless you got to an elite institution that your likelihood of having a successful career in the law is very small, are you? PROF. LEMPERT: What I am saying is that the quality of law schools you go to, particularly going to elite law schools, has a tremendous effect on your career. It has a tremendous effect on lifetime earnings. It has a tremendous -- CHAIRPERSON REYNOLDS: Okay. Here's a fix. PROF. LEMPERT: -- effect on the niche that you enter practice in. CHAIRPERSON REYNOLDS: How about this fix though? Why won't the elite institutions then -- it seems to me that you have two admissions processes in place, one for whites and Asians and the other for Blacks and Hispanics. Why don't you just use whatever metrics that you use for blacks and Hispanics? Use it for the whites and Asians. That way you have a single admission standard. It's applied across the board. Apparently the consequences for a low college GPA and a low LSAT doesn't matter over the long term, if I understand what I read this morning. Wouldn't that be the effect so that we can do away with this conversation over racial preferences? We don't have to have them, and now, I guess this is not a question, but it seems to me that institutions are externalizing the cost of this value that has been embraced by the academy in a number of ways. Whites and Asians have a different standard in terms of the commissions. Blacks and Hispanics have lower standards. There are consequences that flow from this decision. The supporters of racial preference policies highlight the benefits, but there are costs. I suppose I should give you a question. (Laughter.) PROF. SANDER: Commissioner, could I -- CHAIRPERSON REYNOLDS: Well, the question is though: what is wrong then? If the academy feels so strongly about this, then lower your admission standards to the level that's required to have racial diversity. You will have racial diversity. You will have a single standard apply across the board. You will no longer have a constitutional question. PROF. LEMPERT: We don't have one now. So that doesn't seem to be the rationale. A couple of points by way of response. I mean, one could radically restructure the social structure of the Bar and law schools, and maybe, you know, maybe there's something to that. We could abolish in a sense and say, "Okay. We're not going to have elite law schools." My hunch is there's a kind of dynamic in society that you can't engineer that kind of outcome, but also -- CHAIRPERSON REYNOLDS: So is -- PROF. LEMPERT: Let me -- let me -- let me also go -- CHAIRPERSON REYNOLDS: Are the elite schools elite because of the credentials, the requirements, the high barrier that is set on the front end for admission? PROF. LEMPERT: I think that a lot of -- CHAIRPERSON REYNOLDS: And if so, then are these schools elite for those students who get in under a different admission standard? PROF. LEMPERT: You know, it's an interesting question. I think that often law school eliteness depend upon kind of the modal, quote, visible qualifications of the students there and candidly, probably the social class from which they come, and the whole school doesn't have to be from the upper middle and upper classes and the whole school doesn't have to have top credentials to be an elite school. It's kind of a social process, but a lot of students do, and that's the benefits that blacks gets. Something I wanted to say about the point that Rick made about the Grutter case. Two dimensions of that. You know, there was a marvelous moment in the trial when our Dean of Admissions was trying to describe how she settled on whether or not black applicants should be admitted, and she had a file in front of her, and she did not thing that it was this mechanical process that you've heard described, and she actually kind of lost herself kind of reading the file, almost lost track of where she was because the depth that she went into reading the file. The fact of the matter is that given the average credentials of the white and black students who applied in Michigan, even if we selected at random so that affirmative action had nothing to do with it, there would be a substantial credential difference between our white and black students. It's also the case that Rick says, "Well, there's this one other variable, school eliteness." School eliteness, undergraduate eliteness plays almost no role, and the law school emissions counselor showed that it plays almost no role in how well students do, and a school like Michigan doesn't even consider it in its formula. Maybe there's some slight consideration, but it's not a major factor. CHAIRPERSON REYNOLDS: Well, how does IQ play -- COMMISSIONER BRACERAS: Can I? CHAIRPERSON REYNOLDS: I'm sorry. IQ, does that play a role? Does that have a correlation? VICE CHAIRPERSON THERNSTROM: You know, Jennifer had a series of questions. COMMISSIONER BRACERAS: I just want to get back to my one question. CHAIRPERSON REYNOLDS: Well, Jennifer, I thought you were done, and I thought it was someone else's turn. I blame the panelists for this dispute because it's the interesting issues that were discussed. Okay. Commissioner Braceras, let's go back to you. COMMISSIONER BRACERAS: I'll be brief. I'm still trying to understand how graduating from Boston College Law School has long-term negative career consequences compared to graduating from Harvard Law School. Now, I went to Harvard Law School. I'm the first person to admit that going to Harvard Law School opened some doors. However, I'm not sure that those doors would not have been opened to me anyway even if I had gone to Boston College or Boston University, and I want to separate out the question of careers in law teaching because that is an inherently elitist career track. Professors making hiring decisions at Harvard and Yale like their own. They want to hire people from Harvard and Yale and University of Chicago, and it's inherently incestuous and elitist segment of the profession. So taking those opportunities out of the discussion for a minute, how does attending Boston College versus Harvard Law School negatively impact your chances of being a successful lawyer? PROF. LEMPERT: Okay. COMMISSIONER BRACERAS: I just don't see it. PROF. LEMPERT: Well, let me answer. I do not have the data at hand, which I would like to have, but I'll tell you what I'm quite confident the data would reveal. COMMISSIONER BRACERAS: Okay. PROF. LEMPERT: That if you took the average incomes after 20 years out of law school of Harvard graduates and you took the average incomes of Boston University or Boston College graduates, we'd find a substantial difference in favor of the Harvard graduates. If you took out the number of people that were partners in major law firms who had Harvard degrees as a proportion of the Harvard class and the number who had Boston University degrees as a proportion of the Boston University class, you'd find a substantially higher proportion who had Harvard degrees, and any other -- COMMISSIONER BRACERAS: I'm not sure that would be true if you looked in the Massachusetts legal market only. PROF. LEMPERT: If you look at a small local legal market, you'd probably still find it true, but it would be less true than if you look at a national market, but that is an answer. CHAIRPERSON REYNOLDS: Jennifer, can I just in? PROF. SANDER: Can I just add some facts to the discussion -- PARTICIPANTS: Okay. PROF. SANDER: -- make reference to speculations? I mean, one of the major achievements of the analysis was to do this comparison, which people will speculate about for 20 or 30 years. The relevant issue is not whether Harvard graduates make more than Boston College graduates because Harvard attracts the strongest people in the country. So, yes, of course, they on average have more successful careers. COMMISSIONER BRACERAS: Right. PROF. SANDER: The issue is if you take a person with a given level of credentials and they go to School A which is elite or School B which is less elite, what will happen to them in the long term? Now, we don't know the answer to that yet because after the J.D. study, it only carries into the early years of their careers. CHAIRPERSON REYNOLDS: And that's also -- PROF. SANDER: But the other that we have so far clearly shows that grades are better. Rick Lempert's argument is based on the assumption that somehow if we change admission standards for certain groups, we'll fool all of the employers out there into thinking that they're just like all of the other people we've entered into the standards and, therefore, we should give them all the same preference that we do otherwise. But he's living in a world that disappeared 30 years ago. Elite law firms no longer hire from just the elite law schools. I just published an article in the North Carolina Law Review I can forward to the Commission that has the first systematic data looking at this question, and it finds a dramatic increase in the range of law schools that are being recruited from in my law firms. That's why in my analysis I found that getting high grades from a less elite school was far more valuable. Now, Rick talks about faculty recruitment, but there is no study that has been done that has compared similar people from different material law schools and looked at how they do in the faculty market over the long term, and there's every reason to think that if the number of African Americans or Hispanics went down at Harvard and Yale, then law schools would not say, "Oh, well, we're going to stop hiring minority academics because we only want people that went to Harvard and Yale." They're going to hire the strongest people that they can find. That's so obvious that it's only because so many people make the argument that Rick makes that anyone believes it. CHAIRPERSON REYNOLDS: So intellectual fire power, cognitive ability, those track closely with income. If that's the case, what do we say about the fact that the average 17 year old black male reads on the same level as his 13 year old white counterpart? That has huge implications in terms of the pool from which law schools have to pick from. It has huge implications in terms of lifetime earnings. I don't think that this can be ignored. Assuming that our grades are a proxy for intellectual capacity, then there is a problem that starts as you pointed out, Professor Lempert. The problem doesn't start at the law school. The problem is a K through 12 problem and also a larger societal problem, and I think that this fix called racial preferences in the admission process, it's not a very good fix. PROF. SANDER: Commissioner. CHAIRPERSON REYNOLDS: In fact, it hides the problem because we're not talking about the underlying problem here. We're talking about, in my view, a faulty fix to a very significant societal problem. PROF. SANDER: I'd like to give you some data to strengthen the argument you just made, Commissioner. There's a new study by two scholars, one of them Steven Levitt, the author of Freakonomics, who used a new database that's really unparalleled in its comprehensiveness that looked at children in their first six years of life and found that if you controlled for just seven factors about their upbringing, you totally eliminated the black-white gap in achievement. Okay? No one has ever shown that before. We've argued and we've assumed for many generations that genetics is not what's going on here, but this proves it. These seven environmental factors completely explain away the racial disparities. Those disparities don't get aggravated by the K-12 system, but things like birth weight, number of books at home, preschool education, there are basic things that we can do. And I agree with you that when we have this sort of papering over of the differences through preferences at the college and graduate level, it essentially blinds elites to the real problems that we need to address. CHAIRPERSON REYNOLDS: That they can't do anything about. It's easier to deal with it in this way. But in any event, Vice Chair Thernstrom, if we'd like to go along on this, if there are no objections, it's perfectly fine with me. PROF. LEMPERT: Can I just say one more? I mean, here I think we should emphasize and I think we're all agreed that this is an area of major social problems. Anything this Commission can do to increase the quality of K-12 education and even pre-K is all to the good. When we get to the law school level, these are highly selected and really the fact that 17 year olds diminishes the pool, but is not directly on point. However, one of the most moving testimonies that occurred in the Grutter case was of a -- actually, it was in the 8 Gratz case, where if some people at Detroit high schools, black students, who talked about the incentive that they had to do well because they knew that Michigan was a welcoming place, because it was an affirmative action program, and they saw a possibility of getting to Michigan if they worked really hard, even though they might not have SAT scores that were as good as some of the whites who were applying. COMMISSIONER BRACERAS: How does that mesh with your statement before that law schools are a hostile place for minorities? PROF. LEMPERT: What I said was -- I did not say law school were a hostile place per se. What I said is if one of the aspects of why blacks do poorly, in some schools there's some evidence it may be hostile environment. It's clearly race related beyond the other facts that we're talking about. There's recent work by Kathy Barnes. There's other word by Tim Clydesdale which suggests it's a hostile environment. There ironically it may be worse the fewer blacks there are. And by hostile environment I do not necessarily mean a racist environment. I'm using this in a more general sense. It could be that it's simply the fact you feel on the spot because you're one of a small number of minorities. It could be that you've chosen to go to school in Cheyenne, Wyoming or whatever, the University of Wyoming which is located in a community that's just completely -- you know, it just doesn't feel right to live there. There are a number of different dimensions to the environment, culture, et cetera. COMMISSIONER KIRSANOW: Could it be affirmative action itself? I will tell you my experience at University of Michigan when I had a couple of debates there at the law school was when I made the point that at the University of Michigan Law School you're 174 times more likely to be admitted than your similarly situated white comparative, afterwards a number of black students came up to me in great despair not having realized that the advantage was that great, but knowing that they were sitting next to white comparatives who had stellar GPAs, stellar SATs, and they felt as if "I don't belong here." A hostile environment can very easily be generated by the mere fact that your sheer presence there was the result of some extraordinary sleight of hand that got you into a place papered over major differences in your skill levels and said, "Go ahead and compete against a guy who's well more prepared than you are." CHAIRPERSON REYNOLDS: Okay. Vice Chair Thernstrom. VICE CHAIRPERSON THERNSTROM: I'm going to run through a bunch of questions, and they're all directed to Professor Lempert, and then let them pick and choose, and I will tell you what you already know, is that I think I wrote a long Law Review piece myself on this, that the Grutter and Gratz decisions were a total disgrace, and O'Connor as far as I'm concerned would have gotten a D in law school for such shoddy, slippery thinking. But -- pardon me? A D? Okay. COMMISSIONER YAKI: I gave Bakke an F. So we're even. VICE CHAIRPERSON THERNSTROM: Look. Let me start with the fact that Jennifer made a point that troubled me a lot, as well, Professor Lempert. I mean, you gave people's credentials. You talked about prizes. You talked about a prize for yourself, and I have to tell you I'm a total cynic about this kind of thing. The people who get prizes in the academy, in my view, are in general the kings and queens of mediocrity, and you know, so it's a strike against you that you come up with this stuff. Of course, there's a certain -- CHAIRPERSON REYNOLDS: Let's -- let's -- VICE CHAIRPERSON THERNSTROM: -- a circling of the wagons on the part -- CHAIRPERSON REYNOLDS: Commissioner Thernstrom. COMMISSIONER BRACERAS: Let her go. CHAIRPERSON REYNOLDS: We're bordering on being uncivil. VICE CHAIRPERSON THERNSTROM: I'm not bordering on being uncivil. I'm saying what I think. CHAIRPERSON REYNOLDS: Well, it's possible to say things which you think that are uncivil. VICE CHAIRPERSON THERNSTROM: All right, all right. COMMISSIONER YAKI: We're called the Civil Rights Commission. VICE CHAIRPERSON THERNSTROM: I will up the civility, although I don't think I'm being uncivil. And, you know, of course, there's a circling of the wagons by preferential supporters of racial preferences. And then you've got the Daubert standard for scientific evidence, and then you come up with … Patricia Gurin, David Wilkins and company. Now, who's our social scientist whose work has been utterly shredded by other very good -- no, I won't say "other" because I don't regard them as very good -- by very good social scientists. So, you know, they don't meet as far as I'm concerned your own test for scientific evidence. You started out saying you believe in integration, equality, diversity, but those are three terms that I see some tension between. Equality with racial double standards, integration and diversity? You walk into law schools that have strived so hard for diversity? They don't look very integrated to me. You walk in lunchrooms. You look at study groups. What have you? The whole integration concept breaks down and that I would argue is because you are admitting kids on the basis of racial double standards. You say look if you look at law professors, you know, various prestigious categories, but of course it's not only that racial preferences have operated in colleges and the colleges promise they'll close the racial gap and, of course, the racial gap is not closed in the college years. In fact, it widens and then they go on to law school and the racial gap is not closed in law school, and they go on in the professions as well. There are racial double standards that run throughout the society because a lot of people believe in them. They think they are, you know, racially fair. And so, you know, it doesn't -- when you look at who gets what in life, when we've got a society that is permeated with racial double standards, it just doesn't impress me that there isn't suddenly a meritocratic system that kicks in. I'm a big spokesman as you must know for doing something about K through 12 education as the beginning of this entire problem. I do believe that we can deliver good education and in the K through 12 years, and we are not choosing to do so, and that is a political problem rather than educational problem because we know how to teach kids. Your talk of stereotype vulnerability, of hostile environments, it doesn't feel right to be there, sign on to what Commissioner Kirsanow says. Doesn't feel right to be there. Well, no, it doesn't feel right to be there. If you think unfairly that whites are looking at every black or Latino, particularly black students, but Latino students to some extent as well, looking at them and saying you're an affirmative action baby. It, of course, is unfair, but, you know, talk about stereotypes. The admissions policy is generating them, and you ask why can't we say to black students, "You decide on the risk"? Okay. Let's say it to whites, too. This is piggybacking on what the Chair said. In fact, throw the applicants down the stairs, and pick, you know, the ones that land at the bottom of the stairs. I mean, if you want to say to students, "We've got high standards. We're admitting you with low qualifications," then say it to students across the board or do a random admission or something. And you say, "Look. You are going to have" -- even if you got rid of preferential admissions, there'd still be disparities. There wouldn't be the same disparities, and that's really the point. Finally you said, "I don't see any constitutional problem with these racial preferences," well, I don't regard that as a settled issue at all, and particularly because it is widely known that the preferences at the Michigan law, as Professor Sanders said, at the Michigan Law School were even greater than those given to the college. I don't expect over time that O'Connor's shoddy decision will hold up, and a careless decision, a careless opinion, and so I don't think this is a closed question at all. I think there are serious constitutional questions still on the table. Anyway, I will stop there. Pick and choose. PROF. LEMPERT: Okay. I won't try to defend mentioning a prize except to say that -- well, I won't try to defend that at all. I don't think it needs a defense. I do want to say that I think that the -- VICE CHAIRPERSON THERNSTROM: I believe that remark was uncivil on my part. I apologize. PROF. LEMPERT: Thank you. I accept. But I do think this dismissal of the other studies and so forth really reflects a lack of knowledge of social science. VICE CHAIRPERSON THERNSTROM: I'm sorry. I am a social scientist. PROF. LEMPERT: Well, I did not mean personal. I'm just talking generally in the following sense. It is true that there are voices crying in the wilderness who turn out to be right. It's true that being alone doesn't mean that you are mistaken, on the one hand. On the other hand, there is a certain solidarity, if you will, to social science data. It has its own reality, if you will, and you know, you can manipulate it. You can look for results that favor what you want to find. One of the methodological principles that I followed assiduously when I wrote this Michigan article was I did no, almost no exploratory analysis. I had hypotheses. I tested them, and I presented virtually every result that I came up with precisely because I knew that if I wanted to look to prove what I was doing, you know, you can always do that because there's error in these data. And what's crucial about these replications that I mention is that we're all working with the same data set. People are using all sorts of different models, and these are very good people, and they are all coming up with different -- with results that are inconsistent with what Professor Sander found. VICE CHAIRPERSON THERNSTROM: But people working with the same Bach and Bowen, Bowen and Bach, I should say, data set, in fact, some insiders to the Mellon foundation read that data very differently. PROF. LEMPERT: And that says something. When you have a number of people reading data very differently, it says something. When you have one person reading it one way and you have six or seven very well trained people using different methods coming out with a different result, you must be highly suspicious of the one person, however congenial you find those results. Maybe it will turn out that that one person is right and the six or seven or wrong, but to deal with the presumption against the science to me denigrates social science. VICE CHAIRPERSON THERNSTROM: Your standard was not met by Patricia Gurin or …neither one. That was results driven work. CHAIRPERSON REYNOLDS: And, Professor, you don't talk about the prevailing zeitgeist (phonetic) on the college campus. I mean, if you want to be a president of the university, if you want to become a dean or at least at most universities, to accept Professor Sander's view is professional suicide. I don't think that you can take that position without paying a professional cost as demonstrated by the reaction that Professor Sander had. I will point to a young Daniel Moynihan, a young James Coleman who faced the same thing, and the same issue, too. It's race. It's the third rail. They were castigated because of their findings. PROF. LEMPERT: Neither Daniel Moynihan nor James Coleman went on to lead poor careers because of that. Indeed, and each of them -- CHAIRPERSON REYNOLDS: Let's look at -- PROF. LEMPERT: -- each of them -- CHAIRPERSON REYNOLDS: That's the long term. PROF. LEMPERT: But, again, in each case, one of the reasons why their successful careers is that other research supported their results. CHAIRPERSON REYNOLDS: Over time -- PROF. LEMPERT: They did not contract itself. CHAIRPERSON REYNOLDS: -- the immediate aftermath of -- well, upon the publications of their findings, the immediate aftermath was very similar to what we're experiencing here. PROF. LEMPERT: No. The immediate aftermath was research on both sides, some of which supported it and some of which contradicted it, and over time things got more sorted out and actually more complex. VICE CHAIRPERSON THERNSTROM: Senator Moynihan never got over the attacks on him. I knew him very well. Pardon me? PROF. LEMPERT: Monyihan was not doing quantitative work. VICE CHAIRPERSON THERNSTROM: He wouldn't go back to the whole topic of race at all. He was so -- CHAIRPERSON REYNOLDS: And he's not the only one who left the field. People left that field after witnessing what happened to Coleman and Moynihan. They left the field, work that could have been done. Well, it took quite a bit of time for the dust to settle and for men and women to have the confidence and the courage to go in and examine these difficult issues. PROF. LEMPERT: No, you're right. Race is a sensitive topic. I think you're also right that even though some people -- I mean, there's two kinds of worlds. I mean, Rick has been all around the country and how many lectures he's given, how many radio shows he's been on. He's been celebrated in circles as well as castigated in other circles. What I'm talking about is data analysis. The worst thing you can do as an academic -- you know, these people don't aspire to be college presidents - -is to do shoddy data analysis. People have to have integrity. They have to use good methods, and I'm saying, and I don't think Rick would ever contradict the kinds of groups we're talking about, Ian Ayres or Richard Brooks or Jesse Bernstein, these people. These are good people doing good analyses coming out with different and inconsistent results. To go on though to some -- COMMISSIONER BRACERAS: And we should have a discussion about why that is the case instead of I have more checks in my column than you. COMMISSIONER YAKI: Well, wait a minute. Come on. We had a briefing at this Commission several months ago at which the whole idea of incorporating better social science and relying on social science rather than lawyers and other people to drive decision making came about. I find it extremely I'm not going to say hypocritical, but I just find it very interesting that here when you have social scientists who are critiquing in great numbers this particular research, all of a sudden the social science may not be as good as it should be, when in our disparity study report that we put up that's laying out there somewhere, it talks about the need for a natural academy of sciences for rigorous studies, peer review, blah, blah, blah, blah, blah, and -- COMMISSIONER BRACERAS: Let me clarify that because -- COMMISSIONER YAKI: -- then all of a sudden here -- COMMISSIONER BRACERAS: -- certainly that is not -- I certainly don't mean to suggest that the studies pointed out by Professor Lempert are invalid or that they shouldn't get careful consideration. My only point was -- COMMISSIONER YAKI: Oh, no, that was your point. COMMISSIONER BRACERAS: Now, wait a minute. COMMISSIONER YAKI: The point was it was nice to talk about this -- COMMISSIONER BRACERAS: No, that was not my point. COMMISSIONER YAKI: But it was. COMMISSIONER BRACERAS: My point is -- CHAIRPERSON REYNOLDS: Folks, do I have to use my gavel? Let's move on. VICE CHAIRPERSON THERNSTROM: Well, wait a minute. COMMISSIONER BRACERAS: Let me finish what I was saying. My point was not that those other studies aren't valid or that they shouldn't be considered on their own merits. My point is that it is not enough simply to point to Professor Sanders and say, "You are wrong because I have a list of ten people who disagree with you." PROF. LEMPERT: I've told you already today several things. I've told you that Professor Sander himself pointed to serious flaws in his original analysis: the ignoring of selection bias, as well as problems with the data. I could tell you, and I tell you in my written testimony, for example, Professor Sander misinterpreted the meaning of significance tests, an error that someone taking Stat. 101 should not make. I could tell you that Professor Sander did not present all of the diagnostics he should have presented with respect to certain logistic regression analyses. All of these things I tell you in quite detail and referred you to, but without PowerPoint, talking orally, trying to go into technical details here I thought that the best thing I could tell you was that many other reputable people have pointed to flaws. If you want to see the flaws, read the articles by him, his response. Read my article. Read other articles. You will see them. COMMISSIONER BRACERAS: Contrary to what Commissioner Yaki had suggested, I am a strong believer that more research, more transparency, more data, more disclosure are always better, and then we can sort out as policy makers; we can sort out which we want to credit and which we think are valid. That is one of the reasons I support the King bill that was submitted to you for consideration, because more data and more disclosure can only further the debate and further the analysis. PROF. LEMPERT: The King bill is a straightjacket. CHAIRPERSON REYNOLDS: Okay. COMMISSIONER YAKI: Can I continue on with my comments? Because I've been waiting very patiently, Mr. Chair. PROF. LEMPERT: Can I just move on to one more of Professor Thernstrom's comments? VICE CHAIRPERSON THERNSTROM: And, by the way, talk in civility. Saying that Professor Sander's work flunks Statistics 101 I think is uncivil. COMMISSIONER BRACERAS: My only point in raising this to begin with was to say that I didn't like the tenor of the presentation and the way that it was -- CHAIRPERSON REYNOLDS: Okay. Let's give the other Commissioners an opportunity to ask questions. PROF. LEMPERT: Can I respond to -- Professor Thernstrom gave a number of questions. I just want to respond to one more. CHAIRPERSON REYNOLDS: All right. After you have finished responding, we'll have Commissioner Taylor, then Commissioner Yaki. PROF. LEMPERT: This has to do with the racial double standard issue. I just want to point out that we have a tremendous problem of racial double standard and bias in this country. There's a whole host of research which is showing things today, the disadvantage attached to black names, the fact that if you have a vita and you're black, you may do worse or no better in the job market than a white with a criminal record. The IAT test, substantially strong research in stereotype threat. So we are in a country that is permeated by racial double standard. It may not be racism because a lot of it is unconscious. A lot of it is not intended, but we are in a country where black people face disadvantage at every turn which they would not face if they were white because of their race. VICE CHAIRPERSON THERNSTROM: Well, that is another data question. CHAIRPERSON REYNOLDS: Okay. Now, Commissioner Taylor. COMMISSIONER TAYLOR: Thank you. Thank you all for coming. Let me make two quick disclosures. The first is that I'm not a social scientist. I'm just a lawyer. So I'm not going to be able to challenge you all. The second thing, and this is what really troubles me, you all have consistently referred to the top 20 law schools, and I'm a graduate of a law school that is routinely ranked between 21st and 23rd. So we generally refer to the top 25. (Laughter.) COMMISSIONER TAYLOR: Professor Sander, I think I'm clear as to where you are both with respect to the cost of affirmative action and we've all paid due homage to the fact that we all worship at the church of diversity and inclusion, et cetera. So I think I know where you are both with respect to the cost and the benefit. Professor Lempert, I'm clear as to whether or not you agree, first of all, that there indeed are costs associated with affirmative action, whether there are different costs than the costs identified by Professor Sander, and if you agree that there, indeed, are costs, I'd like you to detail the cost of affirmative action to the same degree that you were able to detail the benefits, if possible. And the second thing I'd like to do is I'd like to start all of the comments and start from a slightly different perspective. I joined this Commission for the purposes, I hope of contributing the public discourse as a way to improve the black community among minority communities. So I come to these debates from a single perspective, that is, if you are the black student, I don't care about the university, frankly. I don't care about society. I want to talk about that black student you identified as the -- internally you all know that that person has a 50 percent chance of flunking out, all right, or not doing well, washing out of the syst |
