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The Disaffirmation of Black Law Students

Editorial

November 2004

by Lucas Morel

Frederick Douglass, the escaped slave-turned-abolitionist orator, found an irony bordering on tragedy in government dealings with blacks. When blacks were dealt with as blacks, as opposed to individual citizens, they ended up being hurt rather than helped by the government. This assessment finds support in a forthcoming Stanford Law Review article about affirmative action and black law students. UCLA law professor Richard H. Sander contends that there would be more successful black lawyers, in terms of numbers succeeding at law school and those passing the bar, if affirmative action was eliminated.

This confirms what we already know: namely, that educational mismatch occurs when racial preferences provide incentives for students to attend schools for which they are not well prepared. In his study, "A Systemic Analysis of Affirmative Action in American Law Schools," Sander concludes the following:

After a year of law school, the GPAs of 51 percent of black students place them in the bottom tenth of their classes, compared with 5 percent of white students;

Of those entering law school in 1991, about 80 percent of white students passed the bar exam on their first try, but only 45 percent of black students;

Without affirmative action, the number of black graduates passing the bar the first time would jump to 74 percent according to Sander’s statistical analysis of how better GPAs in less competitive schools would result in higher bar scores;

Without affirmative action, the number of new black lawyers would increase by 8.8 percent because students would attend law schools that fit their preparation, leading to better grades and better jobs.

We surmise that affirmative action stays in place not so much to help "underrepresented minorities" but to provide cover for schools against charges of discrimination. In short, affirmative action means never having to say you’re sorry. It allows college administrators to say, "Look at us; we have x number of black students, which means we’re not racists," instead of saying, "Look at John; look at Joanne. Look at what we have challenged all of our students to accomplish, and how many of them have met that challenge, graduated, and gone on to success in their chosen field of endeavor." The focus is on the college’s innocence on the abiding charge of racism, and not on the students who have benefited from their studies.

The "achievement gap" in American education, where blacks as a group perform significantly worse than whites from K-12 on up through college and professional schools, will not close until the nation’s schools become serious about closing it as opposed to looking as if they’ve closed it. Instead of merely looking like bastions of equal educational opportunity, schools should make educational opportunity a noble aspiration for all American school children.

Affirmative action is just one example of the corruption of liberalism that has taken place since the passing of the modern civil rights movement. Liberalism used to mean "freedom." This means individual rights and responsibilities that are naturally possessed by free and independent human beings. Government’s role, therefore, is to protect what individual human beings already possess—what the Declaration of Independence calls the equal rights of "life, liberty, and pursuit of happiness."

But today’s liberalism, which has been around since the Great Society programs of Lyndon Johnson and the New Deal programs of Franklin Roosevelt, speaks little of individual rights and responsibilities. Because the problems of the nation are seen as structural and not personal—following Marx’s critique of bourgeois society—modern liberals place their faith in engineering the right percentages of group representation in higher education and in business. If only they could get the right experts into power, to plan and administer programs for the various sub-groups of citizens allegedly oppressed by society, then all would be well.

But whether government acted against black citizens by segregating them, or for black citizens through affirmative action, blacks were never seen as individual moral agents: namely, as human beings capable of making their way in life for good or ill, just like the white citizens of America. To that degree they remain, in the public mind, inferior to the rest of society. Affirmative action, the very program set up to bring blacks into the mainstream of American life, ironically reaffirms the argument of racial inferiority made by white supremacists of old.

The emphasis on bureaucratic experts and group entitlements instead of natural and civil rights subverts black progress. Therefore, black Americans should refuse to have government treat them as wards of the state. They should be the first citizens to argue against racial preferences. Eliminating affirmative action will not only ensure the dignity of their achievements, but will also bring them into the mainstream of American society as the free and equal citizens that is their birthright.

Lucas E. Morel is associate professor of politics at Washington and Lee University in Lexington, Virginia and is an adjunct fellow at the Ashbrook Center.