U.S. Civil Rights Commission Condemns Affirmative Action In Law School Admissions - Higher Education

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U.S. Civil Rights Commission Condemns Affirmative Action In Law School Admissions

by David Pluviose

The U.S. Commission on Civil Rights is condemning affirmative action in law school admissions and calling on Congress to mandate law schools to publicly disclose their use of racial preferences in a report that critics say relies heavily on the questionable research of one anti-affirmative action advocate.

For the past two years, the Republican-dominated U.S. Commission on Civil Rights has embarked on a critical examination of the American Bar Association’s Standard 212, which requires law schools show “concrete action” towards student diversity. The USCCR heard testimony from a number of legal scholars who offered analyses on whether law school admissions diversity requirements hurt minority students’ performance and retention.

Witnesses like Raymond C. Pierce, dean of North Carolina Central University Law School and Dr. Richard O. Lempert, a University of Michigan professor of law and sociology, argued in favor of affirmative action in law school admissions. However, testimony and research from UCLA Law Professor Richard Sander has been the basis of a new USCCR report urging the ABA to drop its diversity requirement.

In his article, “Systemic Analysis of Affirmative Action in American Law,” that appeared in the Stanford Law Review in November 2004, Sander presented findings of a qualitative analysis of law school academic performance data that revealed that minority law students were being accepted to a law school a tier above what they would have qualified for without affirmative action.

Sander’s findings indicate that half of African-American law students are in the bottom 10 percent of their law school class at the end of their first year. He also finds that Blacks have two-and-a-half times the dropout rate of White counterparts; four times the initial bar failure rate; and six times the chance of never passing the bar.

The USCCR used Sander’s article and testimony as a basis of a new report, titled “Affirmative Action in Law Schools,” which concluded that “admitting students into law schools for which they might not academically be prepared could harm their academic performance and hinder their ability to obtain and secure gainful employment.”

The USCCR report agrees with Sander, finding that racial preferences in law school admissions may contribute to poor academic performance and completion rates among some minorities, and the USCCR calls on Congress to pass legislation requiring federally funded law schools to publicly disclose their use of racial preferences.

“Race-based admissions have been found to harm minority law students by setting them up for failure. Law schools that continue to use racial preferences, despite this evidence, should at least disclose the risks of academic mismatch to minority student applicants,” says USCCR Chairman Gerald A. Reynolds.

“A true civil rights strategy would focus on these students much earlier in their educational development, rather than providing them with inadequate training and then using preferential treatment to admit them into schools at which they are likely to fail,” he adds.

The two Democratic members of the commission, attorney Michael Yaki and Arlan D. Melendez, the Reno-Sparks Indian Colony chief executive, were the only commissioners who dissented from any of the report’s findings. They also abstained from voting on the report as a whole, protesting an anti-affirmative action bias among the majority of commission members.

“We respectfully, but vehemently, disagree with the findings, recommendations, and focus of this report issued by the Commission’s conservative majority and misleadingly entitled “Affirmative Action in American Law Schools,” Yaki and Melendez write.

“Briefing reports like this one are typical, containing predetermined findings and recommendations that target a particular policy while turning a blind eye to scientific and legal evidence that contradict that policy. This report is a sterling example of the lack of serious scholarship that marks these new briefing reports,” they add.

In particular, Yaki criticizes his conservative fellow commissioners for holding Sander’s research above all other testimony and research that contradicted Sander’s findings.

“The commission’s majority simply took everything that Richard Sander said as blind faith and dismissed everything that all the other credible social scientists and statisticians had to say,” Yaki says. “Sander is not a statistician. And there was serious criticism from people who are professional statisticians over the methodology used by Sander in his study, such that there is no independent third-party statistician support for the methodology and findings Sander made.”

Melendez says Republicans have “really stacked the commission 6 to 2” with Republicans and formerly Republican independents, who came to the commission on a mission to overturn affirmative action in all its forms.

“This current administration and the people that are on the commission, they’re basically going against what the civil rights commission has really stood for all these years,” Melendez says.

“I think this briefing report tried to do too much with too little. To get a couple of hours of peoples’ testimony and try to come up with something that overturns affirmative action is a real stretch,” he adds.

Established by Congress in 1957, the U.S. Commission on Civil Rights is an independent, bipartisan agency in charge of monitoring federal civil rights enforcement. The USCCR also investigates allegations of discrimination and advises the president and Congress on public policy matters. For more information and a copy of the new USCCR report, visit www.usccr.gov.

–David Pluviose



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