Are Other Things Essentially Equal? An Empirical Investigation of the Consequences of Including Race as a Factor in Law School Admission
Linda F. Wightman
Southwestern University Law Review, Volume 28, 1998

Introduction

The controversy over the implementation and consequences of affirmative action practices in law school admission is ongoing, bringing heightened attention not only to differences in preadmission indicators of academic potential, but also to differences in performance in law school and on bar exams. Both opponents and proponents of the practice of including race as a factor in making admission decisions turn to test scores and academic performance data to support their positions. Opponents seek the available data to attempt to illustrate differences in educational preparation and subsequent academic difficulties encountered by student beneficiaries of affirmative action. Proponents examine the data seeking either to confirm the success of those same students or for evidence that test scores have no relevance to future academic success. The data brought forth by the opposing sides of this debate often appear contradictory, leaving consumers of their arguments and information sometimes confused and more often suspicious of the credibility of the proffered data.

The purpose of this article’s comprehensive empirical analyses (the study) is to evaluate the consequences of using race as a factor in the law school admission process from the perspectives of preadmission academic credentials and subsequent academic performance. The analyses that follow were undertaken to examine and explicate apparent inconsistencies in the way that affirmative action is used in the admission process and in the reported consequences of using it. On the one hand, proponents claim, as Justice Powell declared in Regents of the University of California v. Bakke, that in affirmative action admission programs “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats …” In apparent conflict with the concept of race as a “plus” factor are the widely reported data about the poor academic preparation and performance of the beneficiaries of affirmative action policies. Although law schools have expressed strong support for the goals of diversity in legal education, they claim to have done so within the framework of admission decisions based on factors that include race and go beyond it as well. In contrast, opponents of affirmative action policies attempt to dispute that claim by focusing attention on the magnitude of the difference in quantifiable admission credentials such as average test scores or grades between white and nonwhite students attending the same school. Law School Admission Test (LSAT) scores and undergraduate grade point averages (UGPA), reported separately by ethnic group, are most often used to suggest that the unwelcome by-product of affirmative action practices in law school admissions is an alarming lowering of academic standards.

The proposition evaluated in the analyses reported in this article is that the interpretation of the academic impact of including race as a factor in law school admissions depends on how the comparison groups are defined. This study focuses on data from the Fall, 1991 law school entering class who self-reported that they were members of one of the following racial/ethnic groups: black, Mexican American, other Hispanic, or white. Although American Indian and Puerto Rican applicants are likely to also be included in affirmative action admission programs aimed at providing opportunities for members of underrepresented racial minority groups, their numbers in the available dataset were too small to be meaningfully analyzed. Thus, they were not included.

Three alternative comparisons of the focus groups were defined and analyzed for this study. The comparisons included (1) all available data from students attending selected law schools, compared separately by ethnic group; (2) black, Mexican American, and other Hispanic students who would not have been admitted on a numbers-only admission policy compared with the ten percent of white students who presented the lowest pre-admission credentials among all attending white students for whom data were available; and (3) those students predicted to perform in the bottom ten percent of their class, compared separately by ethnic group. Empirical data describing quantifiable law school application credentials and subsequent law school performance of first-year law students were examined separately by ethnic group for each comparison. Additionally, the consequences of using the different comparisons to evaluate the impact of admission decisions that likely were based at least partially on racial identity were examined with respect to first-year academic performance, graduation rates, and eventual bar passage. The law schools that are the most competitive in the admission process were selected for inclusion in this study.

Critics of affirmative action claim that schools dramatically lower their academic standards when race is included as a factor in the admission process. There are two implicit assumptions in this claim. The first is that average academic credentials for the white students attending that school also describe the credentials of the white applicants displaced by affirmative action admittees. The second assumption is that when a white applicant denied admission has a higher LSAT score or UGPA than an admitted applicant of color, the denial was simply a consequence of racial preferences. The data analyses presented in this study suggest that neither of these assumptions is true.

The data confirmed that when all students attending the same law school were compared separately by ethnic group by either pre-admission credentials or academic performance outcome variables, white students scored significantly higher than students from other ethnic/racial groups. The data also suggested that the average credentials of the white students were not illustrative of the credentials of white students who would have been admitted if those students for whom race may have been a factor had been denied access. Rather, those white students who made up roughly the lowest ten percent of admitted white students presented a more accurate profile of the credentials of the additional white students who might have been admitted.

When students who likely would not have been admitted without some consideration of race were compared with the bottom ten percent of white students, the disparities in pre-admission credentials were dramatically reduced. Alternative and slightly more conservative comparisons of students by ethnic group that were predicted to be in the bottom ten percent of the class based on test scores and UGPAs only further narrowed the gap.

The data also revealed differences between pre-admission credentials and subsequent academic performance outcomes for the comparison groups. Specifically, the differences in outcome variables between white students and students of color were not reduced to the same extent differences in pre-admission credentials were reduced. This was particularly true for graduation rates and bar passage rates. These findings highlight educational policy and practice areas in need of further investigation and remediation.

Are Other Things Essentially Equal? An Empirical Investigation of the Consequences of Including Race as a Factor in Law School Admission

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