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08/27/2005

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Palooka

"A dominant group may discriminate some against its own members--that's what affirmative action is--but it's not going to go too far, whereas discrimination by the majority against a minority is likely to be far worse and more injurious."

First, it's probably more accurate to say a minority of the "dominant" group, coupled to strong majorities of the preferenced groups, combine to create an effective majority. It really isn't the case that the "dominant" group is deciding these issues from its own membership. Now, hypotheticall, can a minority of whites deny the majority of whites their right to equal protection? Posner seems to think so.

Avi Katz

What you do not address is the overuse of timed standardized tests. I've seen law schools admit students with high LSAT scores who come from poor undergraduate institutions and reject students with great prior academics and mediocre LSAT scores. Does this not infringe on the natural rights of individuals who are either (A) hard workers (and have demonstrated this by their past academic achievements), (B) deep thinkers who do not reach conclusions as quickly as others, or (C) "out of the box" original thinkers whose abilities cannot be determined by a "one size fits all" test. These individuals are being discriminated against as much as minority groups, to the detriment of our society as a whole. I feel standardized tests should be broadened and their focus should be to do nothing more than ascertain a minimum standard to account for quality differences in previous schooling. We should invest more money in the admissions process to ensure that the individuals who will benefit society most by graduating are admitted, instead of taking the cheapest route of depending on a single test.

ziemer

avi katz, it seems to me that your prescription for improving law school admissions are a recipe for decreasing diversity.

the student with a high LSAT from what you consider a "poor undergraduate institution" is likely to be an extremely smart individual who simply doesn't have the money and/or family connections to get into an elite school.

personally, i don't think there's such a thing as a poor undergraduate institution, only poor undergraduate students. you get out of college what you put into it, whether its the university of chicago or a state satellite college.

also, given the makeup of university faculties, abandoning lsats for who is likely to benefit society would likely just be an insidious basis for throwing the applications of college republicans in the garbage, and filling the school with radical environmentalists/feminists/etc.

i think a student body chosen on your standards would be the most elitist and homogenous imaginable.

David

Posner says, "The black pass rate on the bar exam is shockingly low--something like 15 percent, compared to more than 60 percent for nonblack exam takers."

Is this really true? I'm dubious. Where did this statistic come from?

Also, the statistic that matters is the pass rate for first time takers - we should make sure that we are looking at THAT statistic. Repeat takers usually fail. I have a hard time believing the 15 percent figure is the relevant statistic.

Bill Korner

I could not possibly find anything to disagree with in Posner's point that race SHOULD NOT be correlated with anything significant. Ironically however, it does at least seem to be correlated with rates of bar passing.

Are we now supposed to ask if bar passing is as irrelevant to predicting lawyering capability as LSAT scores? Yep. But there are no answers to be found there for obvious reasons.

And then... what good is being able to lawyer well? That question is answerable in principle, as is the question: What good is being an excellent hit man.

Palooka

Sander's recent research states that the black bar passage rate is 45%, while another 12% pass on a second attempt. That is still considerably lower than passage rates for non-blacks, but nothing close to 15%.

http://volokh.com/posts/1100293519.shtml

Wes

I cannot see the sense of bending law school admissions standards in favor of applicants who are unlikely to be able to enter the profession after spending $100,000 or more for three years of law school tuition.So much for free market capitalism. I'm not a fan of affirmative action but, more generally, if someone wants an education and they have the money to pay for it then let them have it. If it turns out later that their money was wasted, then that's their problem.Criteria for scholarships could justifiably be much more restrictive but, when it comes to admissions, if someone would rather spend $100,000 on learning than on a sports car they should be allowed to do that.Now, a sports car manufacturer could decide to only sell its cars to attractive people as a marketing technique for improving the image of its cars and a university could only admit smart students as a marketing technique for improving the image of its education and that would be OK (but not necessarily well advised).On the other hand, it goes against the basic principles of free market capitalism for the seller to be deciding whether it is in the buyers best interest to buy the product. That is not to say, however, that the seller does not have an obligation to fully inform the buyer of risks associated with its product.

Maria

Affirmative action, at least in my understanding of it, is all about giving access. So, to use your example, an African-American who spends $100K on law school tuition but can't pass the bar still ends up with a law degree, something that can be useful in many other professions. Morever, his experiences in law school and with the bar give us all perspective in helping along the next generation of (possibly non-white) students.

Professors, I'm sure you recognize that the effects of racism are subtle, cumulative, and demoralizing. Would I be deemed competent solely on the basis of my writing? Likely so, but then if you were to see me in person, you might not think the same. How much does appearance (i.e., race) factor into perceptions of competence? Sadly, I would have to say it counts a lot, and affirmative action programs are still one of the best ways to prevent the nuances of discrimination from corroding the (not necessarily perfect) meritocrary that is university admissions.

Anonymous

Wes, the crucial distinction here is that Posner is arguing against misguided well intentioned affirmative action practices that mislead students into thinking they are qualified or smart enough to pass the bar when they aren't.

Its because the selected pool he is talking about is not going through regular admissions but an artificial 'socially concious' one.

Taylor Jaworski

Wes,

The picture you paint of Judge Posner's response as somehow not representing principles of free market capitalism seems disingenuous. It certainly violates "basic principles of free market capitalism for the seller to be deciding whether it is in the buyers best interest to buy the product." But your comment does not take in to account the fact that while this may be a necessity in the relationship between agents who are buyers and sellers only, the relationship between a university and potential student (or a business and a potential promotee) is different and somewhat more complicated.

The only qualification for being able to buy a sports car is that you can afford it, but when it comes to admission to college or graduate school, or promotions in business, I would hope that the ability to afford these things (or the willingness to bribe to get them, as the case may be) is not the only qualificaiton. That there is in fact some aptitude for learning or business required before acceptance or promotion letters are handed out.

Anonymous

Maria, whatever the quality of your writing tells us, admissions practices dont' require photographs. Thus I fail to see your point on how it would pollute a 'meritocratic' admissions system.
Furthermore, I wonder how well JDs do in entering other fields when they a. fail to pass the bar and b. certianly achieved terrible grades in law school.

$100k debt however is a sure crippling effect.

Compound this with popular negative assumptions made in the marktetplace about AA admits to prestigious schools being far less intelligent or qualified, and you have people being left off worse because of these socially responsible policies.

Wes

Responding to various responses:...mislead students into thinking they are qualified or smart enough to pass the bar when they aren't.So make the students sign a waiver acknowledging that in the law school's judgement they will not be able to pass the bar even though they have been admitted. But let the students decide for themselves whether to take that risk....the relationship between a university and potential student (or a business and a potential promotee) is different and somewhat more complicated. The only qualification for being able to buy a sports car is that you can afford it,...Regardless of whether it is education or sports cars, the seller should refuse a sale when it is not in the seller's best interest. The question is whether the seller should refuse a sale when, in the seller's judgement, it is not in the buyer's best interest.It would be OK for a law school, as a marketing strategy, to preferentially admit students it judged to have the best chance of passing the bar because the resulting statistics would make it look like the law school was providing a good education. The question is whether a law school should be trying to decide on a student's behalf whether it is the student's best interest to go to law school....That there is in fact some aptitude for learning or business required before acceptance or promotion letters are handed out.In addition to providing education services, universities also provide evaluation services. It is not clear whether the admission process, itself, should be viewed as part of the university's evaluation services. My answer is "no", that a university should be allowed to admit whoever it wants and that only the final degree (and letters of recommendation) should be considered to be part of the university's evaluation service. I recognize that in practice this is not entirely the case and, in my opinion, this is actually quite stifling to universities' purpose of providing education.

Bob

As a union lawyer, I'm glad to agree with Judge Posner that it would be better to have affirmative action based on class ("parental income") rather than race. A meritocracy should provide equal opportunity for all. It would unite white and minority applicants in that old American idea that despite what background you started from, this society allows those who study and work hard to achieve their dreams. Also, given the lower economic status of minorities generally in this society, they would still benefit from such a system without the negative stigma that minority students admitted to colleges or professional schools only got admitted because of their race. It's an idea that the Democratic Party should champion as a way of uniting working class minority and non-minority households.

Jane Thirnbough

MARIA: How much does appearance (i.e., race) factor into perceptions of competence?

Whether you realize it or not, that is not an argument in favor of affirmative action. It is an argument in favor of using exclusively unweighted grade-point average and standardized test scores. No mention of the person's race (or gender or religious affiliation or sexual orientation for that matter) can leak through "blind" tests and grades (assuming that high-school teachers use objective testing methods as well). On the other hand, such subjectively-valued (or de-valued) data can be larded into essays, resumes, and writing samples, e.g., "I worked for the Gay Men's Crisis last year through a pilot program at the Presbyterian church, right next-door to my immigrant grandmother's tenement in Chinatown. I have three kids and had just adjusted to my amputation, so finding time to hobble over and volunteer was difficult."

And I find bizarre that, according to you, race = appearance. That is precisely the notion of race Posner seems to have rejected as irrelevant to this discussion of affirmative action. The correlation between bar passage rates and being black exists whether or not an aesthetic distinction is made between the black population and others. Why you would presume that the aesthetic distinction necessarily attaches to the concept of race is quite telling. Even Strom Thurmond, in his heyday as a racist rabblerouser, found black women aesthetically-appealing. Just ask the maid who bore his illegitimate child.

In the adumbration of your argument, Maria, you might want to avoid "projecting".

WaitingForGoogle

BOB: "Also, given the lower economic status of minorities generally in this society, they would still benefit from such a system without the negative stigma that minority students admitted to colleges or professional schools only got admitted because of their race."

Except that discriminates against black applicants who are not poor and who are otherwise identical to white applicants. Why would we discriminate against hardworking, smart, middleclass black people? That sounds like the most perverse kind of "reverse discrimination" of all!

TheWinfieldEffect

MARIA: How much does appearance (i.e., race) factor into perceptions of competence?

I am not a sociologist, but I suspect that Maria's causal chain is dead wrong. Instead of positing that blacks are funny-looking and that causes whites to discriminate against them, I would suspect that perceptions of social status influence perceptions of appearance, which is the other way around. Just for example, there are Midwesterners who believe Jews have horns, not because they have seen Jews and hate them for their horns, but because they have heard about how evil Jews are before having met any and have fantasized about how hideous-looking such evil creatures must be.

Bob

How is it reverse discrimination? Do Colin Powell and Donovon McNabb's kids really need affirmative action to escape from the lingering vestiges of slavery? Doesn't the current systems discriminate against economically disadvantaged inner city or rural African-American kids when it fills the affirmative action slots with the sons and daughters of wealthy African American professional and business people? What is the purpose? Do those kids really need a hand up? Why should they recieve a preference? Isn't it better to sanction a non-racially based system that provides educational opportunity to all the truly disadvantaged in our increasingly economically stratified society?

Jane Thirnbough

Bob: "Do Colin Powell and Donovon McNabb's kids really need affirmative action to escape from the lingering vestiges of slavery?"

Is "need" or "deserve" the relevant analysis? If you steal $5 from me, but I happen to win the lottery tomorrow, I don't need the $5, but you still owe me for your thievery.

LARRY

Jane Thimnbough's statement above is a good example of how poisonous AA is. It's bad enough in that is creates unfairness and can slow down progress for those it is supposed to help, and that those whow argue for it can't even publicly state what they are doing or they know they would be opposed. No, that's not enough. As far as JT is concerned, we need whole classes of people who should feel not that they can and should compete with others on an even level, but that they are "owed" something. It doesn't matter what position they are in, how little they work, how poorly they perform, or, for that matter, how well they perform--the world owes them something. I can't think of a better recipe for ongoing disaster.

Jane Thirnbough

"It doesn't matter what position they are in, how little they work, how poorly they perform, or, for that matter, how well they perform--the world owes them something. I can't think of a better recipe for ongoing disaster."

How about genocide?

KJ

Wes,

Most law schools aren't for profit. The one's that are do take anyone willing to pay.

Most restrict admissions to enhance their own reputation. That is their marketing strategy. It isn't that they are doing what is best (in their view) for the student. They are doing what is best for the university. Selling spots in the class is also not desireable for most institutions. Such spots are scarece products - most can't accept every person who wants in and can pay at current staffing and structure levels. So the school wants to produce bar exam passers (their graduation pass rate is typically public information) - not merely people who paid for an education. That will enhance reputation, which in turn enhances tuition rates and falculty quality.

In other words, the free market principles are working just fine.

Anonymous

I am fairly young. I grew up thinking that blacks were equal to whites in all respects, because that was what I was told. I believed that racism and discrimination had no basis but the original cultural superiority of Europeans over Africans.

The older I get, however, the more I learn that this is not true. The highly intelligent black person is, as far as I'm concerned, a rare find. I'm not a "racist", but experience has shown me that black people are less intelligent, less educated, and less able to learn than whites or asians. How long must I deny my experience in order to satisfy a utopian mental model? Isn't equality of races the phlogiston of our age?

If so, in time, experience will show us all that natural forces have caused evolution to take slightly different paths in the different races of humanity, and thereby caused some races to be more intelligent than others, and some to be more athletic, etc.

Maybe someday we'll be able to accept that our society may attempt to provide equal initial opportunity for all, but in the end, some races may be superior in some respects to other races.

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