3-17-05, 8:50 am

Although the Supreme Court upheld the constitutionality of affirmative action and scholarly studies such as that by former Princeton President William Bowen and former Harvard President Derek Bok have shown the benefits of enrolling a diverse range of qualified students, opponents of the programs continue to make misleading arguments. Even as universities in California and Florida report troubling declines in the number of African American, Latino, and Native American students (The Washington Post 'Universities Record Drop in Black Admissions'), UCLA law professor Richard Sander is attracting publicity with the argument that it is African Americans themselves – not whites – who are harmed by racially-conscious admissions policies. His claims are neither new nor persuasive.

Sander asserts that affirmative action leads to African Americans attending law schools where they cannot compete. According to him, they either flunk out or drop out. Those who graduate aren't likely to pass the bar. He concludes that 'a race-blind system' will produce more black lawyers – a goal he says he shares.

If law schools – and then, by extension other professional and graduate programs – were to adopt the system Sander advances, there is little doubt that these institutions would quickly become re-segregated. There would be schools that were virtually all white, with a handful of Asian Americans; there would be other schools that could boast a modest racial mix; and there also would be many African American students who would lose access to higher education. The top law schools, those that are the beginning of the pipeline to lucrative jobs with prestigious firms, powerful positions in the judiciary, as well as business opportunities and influential roles in academe, would be largely drained of African American students.

After a year that saw countless celebrations of the 50th anniversary of school desegregation, ordered in the profound case of Brown v. Board of Education, such an outcome would be as ironic as tragic.
Leaders in higher education recognize that considering race as a factor in high-stakes decision-making alters the composition of the classroom. Law schools, which enjoy an abundance of terrific applicants for every open seat, look at many criteria in determining how to best serve the myriad aspects of an academic mission. Without exception, law schools give substantial weight to the Law School Admissions Test (LSAT) and undergraduate grade point average (GPA).

That is only the beginning of the process, not the end. There are many other measures, such as background and life experiences, that have proven useful in predicting a student's drive, commitment, civic engagement, and other traits vital to the success of lawyers and law schools.

Ignoring other factors, Sander states there is a 'powerful' correlation between LSAT/GPA and bar exam performance. Just as a statistical matter, aside from the policy implications, his analysis is flawed. According to the data he relies on, LSAT scores and GPA accounts for less than 10 percent of the disparity in bar exam results. In other words, he ignores the 90 percent of the difference that cannot be explained. He also uses old data. His 2001 data suggests that without affirmative action, there would be a 14 percent decline in African American admittees. The 2002-03 data show that there would be a 35 percent to 45 percent decline, and, incidentally, a 25 percent increase in white admittees.

Racial disparities have long existed and unfortunately continue to persist – for a complex range of reasons, including the vestiges of past discrimination. It isn't clear why anyone who, like Sander, insists he wishes to help African American students would want to abolish a proven means of doing so.

Writing for a majority of her colleagues, Justice Sandra Day O'Connor articulated a principle which since the civil rights movement Americans of all races have consistently said they believe in: 'In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.'

Affirmative action is not only necessary but also effective.



--Frank H. Wu is Dean of Wayne State University Law School in Detroit. He testified in the trial of the Grutter v. Bollinger case.