Why Affirmative Action is Justified

[redemption]

So, anyway. Where were we?

I had started a narrative that founded a justification for race-based affirmative action at the top law schools not on historical reasons, nor on diversity grounds, but as a matter of simple fairness for candidates who are just as capable and academically qualified as their white counterparts.

I have started to make a case that an absence of an affirmative action program in the face of the systematic racial bias represented by law schools’ overreliance on the LSAT would represent an unfair, unmeritocratic, and inefficient method of building an incoming law school class.

I have tried to build this case by arguing that:

a) We live in a society in which Blacks, Hispanics, and Native Americans are seen as naturally less intellectually capable.

b) This stereotype is pervasive and  particularly affects those URM individuals who are the most intellectually capable and accomplished.

c) This phenomenon manifests itself, inter alia, in a phenomenon labeled “stereotype threat” by social psychologists: Just as women score dramatically lower if they take a test in which they are expected to worse as a group than men, than they would have if they were not so primed; and just as white men score dramatically lower in a test when they are expected to do worse as a group than Asians, than they would have if they were not so primed, it turns out that URMs score less in standardized tests when they are expected to do worse as a group than whites, than they would have if they were not so primed.

The difference then is not an innate one between groups, but an environmental one between the circumstances under which members of each groups take the tests.

Someone in this thread asked, but how are “URMs primed before the LSAT?”.  My answer is that if you truly believe either (1) that Americans generally don’t think that blacks (for example) are intellectually inferior to whites; or (2) that the LSAT is not viewed as a measure of intellect, then.... well, I have no good answer for you except to urge you to use your common sense(s). In LSD AA-Board parlance, “go read a book”. 

H4CS (and, I think, Miss P) made the point that the stereotype threat is a nothing but a transmission mechanism for societal racism, and that is an observation that is hard to dispute.

-----

So, what now?

We have a situation in which the primary instrument  by which schools admit applicants reflects a race-based bias. Not simply because URMs score lower, on average, than whites,  mind you, but because of why they score lower. It’s a question of an uneven playing field.

This complicates the notion of merit, credentials, etc., and will likely complicate one’s understanding of affirmative action as “racial preferences”.


There are a number of options, at this point:

1. Eliminate racist stereotypes

2. Counteract the discernible effects of societal stereotypes as they impact the admissions process

3. Say “@#!* ‘em; life’s not fair; who gives a *&^%?”


The first option would be nice, but probably beyond the reach of the admissions offices of the T14 schools.

No doubt that there are people who subscribe to the third option, and those of you who do can stop reading here.  (That means you, breadboy  ). Just spare us the use of the  moral terminology -- “on your their own merit”, “unfair racial preferences”,  etc.


As to the second option. Notice the following interesting observations:

The stereotype effect affects different URM subsets differently: 6 points for Blacks, 4 points for Hispanics, and 2 points for native Americans. There is a negligible or no such effect for Asians, women, Jews, etc. (Remember that these are figures that have been arrived at after controlling for SES, school, UG Major, & GPA).

There seems to be a correspondence, then, between the strength by which LSAT scores are discounted by admissions committees, and the degree to which the stereotype threat affects different groups. 6-4-2. That’s pretty close.

Notice also that these are group averages -- not every URM candidate is affected equally by this, and, therefore, not every black candidate, for example, scores 6 points lower ( some score only 2 points less, and others score 10 points less). The problem, then, is to distinguish between them - when is a 166 really a 176, and when is it really a 168? That seems a toughie, until you open the rest of the file and look at everything else in the applicants’ background: transcript, statements, LORs, scholarly accomplishments, etc. I’d look at an applicant’s file holistically, knowing that the LSAT can really lie for URMs, and ask myself: will this person be a credit to my school?

Holistic? Are you laughing incredulously? Well, it turns out that they do actually look at the files of quite a number of applicants. Here’s how we can tell: Linda Wightman of LSAC did an empirical study and found: “In general, white applicants with higher pre-admission academic credentials had already been denied admission in favor of lower-credentialed white applicants, because of nonacademic factors in their application, or were admitted and decided not to attend that school.” Read that again. It’s important.

No? Holistically is not how you would do it? Maybe there are better ways. Here’s an excellent place to post them:
http://www.lawschooldiscussion.org/prelaw/index.php/topic,55214.0.html


--------

Let’s approach it from another angle. That’s what Lurking3rdYear has suggested, based on his understanding of Sanders. Start from the law school outcomes and work backwards.

The argument advanced is this : URMs do worse, on average, than whites in each law school to which they are admitted; the credentials were lower in the admissions process; and therefore, they are mismatched -- they don’t belong there. Oh, and PS. the LSAT discrepancy is therefore a good indicator of who should get in and who shouldn’t.

Here’s a  pair of clues indicating that there might be a problem with that line of argument.

1. Admitted women have higher (or indistinguishable) index scores than (from) men, and yet they perform significantly worse than men while in law school.

2. In-state admittees have significantly lower index numbers than out-of-state members of the same class, and yet they close the gap in law school. (Approximately 1/3 of the class at Texas, for example, would not be admitted under a numbers-only selection system. Notice how no-one wonders whether they are intellectually fit to attend Michigan or Texas).


Here’s another pair of clues:

1. The Michigan study that I linked to earlier in the thread shows that their URM graduates succeed just as well in the practice of law after graduation;

2. Consider the results of a study conducted by a large New York law firm of all the lawyers it hired over a thirty-year period. "This firm found that those who were superstars in law school were also likely to be outstanding lawyers and to become partners in the firm. But, below the top 1 or 2 percent of law school performers, there was little to no correlation between law school grades and the work performance of those who attained partnership. Similar results are available from other legal educators and researchers who have followed students after graduation". [Source: “Lessons and Challenges of Becoming Gentlemen”, 4 N.Y.U. Rev. L. & Soc. Change. The firm is Fried, Frank, Harris, Shriver & Jacobson.]


There’s a narrative that coherently fits these clues together into a noce whole, and probably only one such narrative. I’ll come back to it tomorrow, but in the meantime -- discuss.


Also -  a plea to those of you who chose to write in the style of the Sufi mystics (yes, that's you SapientaEstPotentia, and you philibusters, and you thorc954), please write simply so that I can follow what you are saying. Or, as HD would say, stop being so cryptic, fuckers.

Also - to The Whore: work out your Saffie-guilt issues elsewhere, dammit, and stop hijacking this thread.


Okay, I'm out.

[H4CS]

My head feels much better now.

[obamacon]

I have started to make a case that an absence of an affirmative action program in the face of the systematic racial bias represented by law schools’ overreliance on the LSAT would represent an unfair, unmeritocratic, and inefficient method of building an incoming law school class.

Why is it better to add affirmative action rather than remove emphasis on the LSAT?

a) We live in a society in which Blacks, Hispanics, and Native Americans are seen as naturally less intellectually capable.

Perhaps (I’m reticent to say what “society” thinks, but I’ll agree to some extent just to continue the argument.), but so were Irish, Italian, Jewish, Japanese, Chinese, and Korean immigrants at one time or another, all of which don’t seem to be in need of affirmative action.

This phenomenon manifests itself, inter alia, in a phenomenon labeled “stereotype threat” by social psychologists: Just as women score dramatically lower if they take a test in which they are expected to worse as a group than men, than they would have if they were not so primed; and just as white men score dramatically lower in a test when they are expected to do worse as a group than Asians, than they would have if they were not so primed, it turns out that URMs score less in standardized tests when they are expected to do worse as a group than whites, than they would have if they were not so primed.

I think you have yet to prove this. I don’t find sitting a group women down and saying, “alright we’re going to see if your understanding of Calculus is up to the level of the male nuclear physicists we just tested,” is the same as a Hispanic woman sitting down to take the LSAT without a similar pronouncement.

Someone in this thread asked, but how are “URMs primed before the LSAT?”.  My answer is that if you truly believe either (1) that Americans generally don’t think that blacks (for example) are intellectually inferior to whites; or (2) that the LSAT is not viewed as a measure of intellect, then.... well, I have no good answer for you except to urge you to use your common sense(s). In LSD AA-Board parlance, “go read a book”. 

See the above question.

We have a situation in which the primary instrument  by which schools admit applicants reflects a race-based bias. Not simply because URMs score lower, on average, than whites,  mind you, but because of why they score lower. It’s a question of an uneven playing field.

2. Counteract the discernible effects of societal stereotypes as they impact the admissions process

Which should be rectified in Graduate school why? Why not preschool or high school or undergrad or post-grad or on a non-academic level all together? Will there be any negative impact from trying to fix it here, is this a symptom of something else we’re missing earlier that with only be superficially fixed at this point? Are there better ways to do this that will cause fewer problems? Etc.

3. Say “@#!* ‘em; life’s not fair; who gives a *&^%?”

In a manner of speaking:

In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us... . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... your interference is doing him positive injury.

-Frederick Douglass - What the Black Man Wants, Speech in Boston, Massachusetts, (26 January 1865)

No doubt that there are people who subscribe to the third option, and those of you who do can stop reading here. Just spare us the use of the  moral terminology -- “on your their own merit”, “unfair racial preferences”,  etc. 

See the above.

That means you, breadboy  .

I’m flattered you thought of me.

The stereotype effect affects different URM subsets differently: 6 points for Blacks, 4 points for Hispanics, and 2 points for native Americans. There is a negligible or no such effect for Asians, women, Jews, etc. (Remember that these are figures that have been arrived at after controlling for SES, school, UG Major, & GPA).

You’re calculations are problematic, because you demarcate along broad racial lines instead of narrow ones. For example, if you looked at blacks from Caribbean ancestry you’d probably see little need for affirmative action, but if you looked at whites of Scottish ancestry you’d probably say that minorities need 10-15 point advantages on the LSAT. How would you explain Caribbean blacks “resistance” to the stereotype threat by the way?

Notice also that these are group averages -- not every URM candidate is affected equally by this, and, therefore, not every black candidate, for example, scores 6 points lower ( some score only 2 points less, and others score 10 points less). The problem, then, is to distinguish between them - when is a 166 really a 176, and when is it really a 168? That seems a toughie, until you open the rest of the file and look at everything else in the applicants’ background: transcript, statements, LORs, scholarly accomplishments, etc. I’d look at an applicant’s file holistically, knowing that the LSAT can really lie for URMs, and ask myself: will this person be a credit to my school?

And this is the exact reason for the LSAT, so we don’t have to add in several other factors and pray over it to get some idea of where people stand in relation to others.

Holistic? Are you laughing incredulously?

Just smirking a bit.

Well, it turns out that they do actually look at the files of quite a number of applicants. Here’s how we can tell: Linda Wightman of LSAC did an empirical study and found: “In general, white applicants with higher pre-admission academic credentials had already been denied admission in favor of lower-credentialed white applicants, because of nonacademic factors in their application, or were admitted and decided not to attend that school.” Read that again. It’s important.

Something tells me “non-academic factors” may have to do with legacy admissions (which aren’t on trial here) and in any case it isn’t clear enough what she means for me to take a definitive stand on it.

Consider the results of a study conducted by a large New York law firm of all the lawyers it hired over a thirty-year period.

This isn’t exactly WLRK, Sullivan & Cromwell, Cravath, or Skadden is it? Is it in any way representative of other large firms in New York, much less other parts of the country? How about medium and small firms, or solo practitioners, etc.




Overall, I think your motivations are pure, but in addition to this entire thread being a slice of pie in the sky, I don't think it would work out the way you seem to suggest.


I’ll comment on anything I missed after you respond.

[thorc954]

I didnt think I was being cryptic but owell. 

[BPM]

Despite introducing it as a thread, im not convinced the OP has a firm understanding of the stereotype threat.  It is discussed as if it were a mystical force, providing an omnibus generalization for whatever conclusion that he fancies, when in fact the threats can be dissected to individuals internalized beliefs rather than a mechanism of transported racism imposed by one group onto another.

Secondly, he cites LSAT differences as the basis of the stereotype threat, as if the LSAT number differences are substantial proof.  The irony is he then proceeds to identify how useless LSAT scores are when evaluating intra/interstate/women and minority groups.  If the numbers or so meaningless, why would you rely on them so heavily as proof for this nefarious stereotype threat?

Finally, assuming the stereotype threat exists and was present on the LSAT, shouldn't the stereotype fall hardest on Asians?  Most Asian stereotypes are predicated on language dysfunction and poor communication skills, what the LSAT tests heavily.

[thorc954]

law schools suck when it comes down to it.  You say there is a 6 point difference in controlled scores of white and black canidates.  You also say that the score gap can be up to ten points depending on certain factors.  What exactly would these factors be? Ignorance or what?  Two people from similiar schools can do equally well in some easy major yet one can still be smarter then the other.  My problem with this suggestion is it ways too heavily on race.  Okay, add six points to African American's scores.  90% of the ones getting into T14 on LSN would still fall way below the scores necessary. Therefore, AA action isnt trying to place qualified blacks in positions as much as it is trying to fill some damn quotas to give everyone the oppression that they care about minorities, when they should care less who fills up there spots as long as they are qualified.  I hate what the education system in our country has become.  Underqualified rich kids, minorities, and athletes are pushed into amazing schools and are rewarded with equally amazing jobs.

I disagree with the OP about AA being justified in law school... I tried to post my opposition before but it was turned into a philosophical debate about the definition of racism when I was simply trying to exclude racism from the picture altogether.   

[FossilJ]

Notice also that these are group averages -- not every URM candidate is affected equally by this, and, therefore, not every black candidate, for example, scores 6 points lower ( some score only 2 points less, and others score 10 points less). The problem, then, is to distinguish between them - when is a 166 really a 176, and when is it really a 168? That seems a toughie, until you open the rest of the file and look at everything else in the applicants’ background: transcript, statements, LORs, scholarly accomplishments, etc. I’d look at an applicant’s file holistically, knowing that the LSAT can really lie for URMs, and ask myself: will this person be a credit to my school?

I think this is the biggest hole in this whole "stereotype threat" argument.  I will assume that Red is right and that certain people's scores are affected by racial stereotypes (which are only furthered by AA, but that's another argument).  However, raced-based affirmative action in no way accounts for the differences in scores of certain applicants based on stereotypes.  One black person may have struggled through life, have burning crosses displayed in his front yard, and be the fourteenth of twenty illegitimate children, yet in terms of race-based affirmative action, his 164 LSAT would be equivalent to the 164 of Michael Jordan's son.  I completely agree with Red that schools should be more holistic and less dependent on the LSAT as an absolute measure of a person's intellect, but nowhere in this whole stereotype threat babble does she say why schools should consider race as any portion of this holistic picture.  Why not consider family background or socioeconomic status instead of race?  The reason of course is that no law school brags about having 30% of their applicants from single-parent homes, but they are careful to have a high enough percentage of minorities as to not embarass themselves.   

I'm not going to speak for red., but I think the point I'm about to make may help you see her side of things a bit better.


This argument is not dismissing family background or socioeconomic status as integral components to the "holistic picture".  It is not claiming that Affirmative Action is perfect, or even the ideal solution.  It is not claiming that there are no ironic racial subtexts to AA's practice, either.

What it is claiming is that Affirmative Action, as it stands, is an effective and legitimate method of solving a very real and very troublesome problem.  It describes, in detail, the problem (or problems), and then explains why Affirmative Action, as it stands, is a way of solving that problem (or problems).

[Miss P]

I am leaving the rest to people with more patience, but seriously this:

This isn’t exactly WLRK, Sullivan & Cromwell, Cravath, or Skadden is it? Is it in any way representative of other large firms in New York, much less other parts of the country? How about medium and small firms, or solo practitioners, etc.

made me chuckle    First, bb, weren't you just railing against elitism and name-dropping the other day?  Second, isn't FF consistently in the top third of the Vault 100, higher than places like MoFo and Boies Schiller and Akin Gump?  I agree that the experience of one firm may not be representative of other types of firms, but calling FF out for not being Cravath seems absurd.

[Miss P]

made me chuckle     First, bb, weren't you just railing against elitism and name-dropping the other day.

To tell you the truth I'm not sure, perhaps, but I'm going to guess it was in a different context.

Second, isn't FF consistently in the top third of the Vault 100, higher than places like MoFo and Boies Schiller and Akin Gump? 

Yes, I believe it is.

but calling FF out for not being Cravath seems absurd.

Profits per partner Watchtell:    $3,790,000
Profits per partner Fried, Frank: $980,000

So you want to limit consideration to firms in the top three now?  Because you know, Sullivan & Cromwell, Skadden, and Simpson Thatcher (among hundreds of other top firms) all have numbers much closer to FF's than to Wachtell's.

[H4CS]

But I think you (and possibly red) are showing great naivete about the way affirmative action "as it stands" actually operates.  You may like to think that adcoms are huddled in a room somewhere contemplating the immense suffering of their law school's applicants, but the truth is that elite schools like Harvard are much more likely to admit a URM with borderline numbers above a poor white kid with similar numbers, simply because of the color of the applicants' skin.  You might like to think that the poor white kid will get a "holistic" approach, but in reality the school must maintain a certain percentage of blacks/hispanics and has no such mandate about the percentage of poor people it must admit.       

You forgot to include the council of rabbis and the trilateral commission in that neat little theory of yours.  You know, if you put half this effort into applying to schools instead of thinking that you know better than everyone else, you might end up with a great cycle.