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Bogus "diversity study"


The National Law Journal headline is "Research attests to the value of diversity at law schools," and that's certainly how study authors Charles Daye et al. pitch their piece. But they simply demonstrate shoddy science to reach the authors' predetermined conclusions.

The study relied on self-reporting of law students, and found that "Many students reported that they left law school with a deeper understanding of the law as a result of diversity among their classmates." Thus, the authors argue diversity should matter in admissions.

The non sequitur is astonishing. All we conclude is that students think that diversity helps their understanding of the law. In the absence of controls (or even a quantifiable statistic for "understanding of the law"), the most we can conclude is that students want to seem politically correct when talking to interviewers.

Even if we were to accept the conclusions of the paper, the policy conclusions—there's a benefit to race discrimination in the name of diversity—do not follow.

Leave aside the constitutional question whether these unquantifiable diversity benefits survive strict scrutiny. How much diversity is required? If every law school abolished diversity-based race discrimination (so that schools that refused to participate in the race-based race wouldn't lose qualified students to better-ranked law schools that reach down to inflate their non-Asian minority population), would the resulting percentages of non-Asian minorities be sufficient to inculcate students with the benefits of diversity? If so, why need affirmative action at all?

If the argument that diversity is good because of the exposing of students to differing viewpoints, wouldn't students be better off if a law school went out and used affirmative action to recruit a Hasid, a Sri Lankan, a Macedonian, an Argentinian, a Mennonite, a Latvian, a Roma, a Gujarati Hindu, a Tibetan Buddhist, and a North Korean refugee? That surely does much more to increase the number of viewpoints available to students than disregarding African-American LSAT scores in admissions. Many law schools have no Hasidim or Roma or North Korean refugee students whatsoever, and the increase from zero to one surely does more for promoting diverse viewpoints than the twenty-third African-American does.

If law schools really care about diverse viewpoints, shouldn't they be doing more to promote diverse viewpoints in faculty hiring? In particular, it's well known that Federalist Society membership and conservative credentials result in blackballing at many law schools; even the schools with token conservatives are overwhelmingly liberal. Surely to the extent students benefit from diverse viewpoints, they'd especially benefit from diverse political viewpoints from faculty. Perhaps we should have a two-year hiring freeze on non-Federalists until conservatives catch up?

Or is the argument that only African-Americans have the innate qualities that create the positive externality of diversity? I'm waiting for someone to come out and say that, though it seems suspiciously like the Magical Negro stereotype.

"Daye said he hopes the findings will influence admissions officials to continue to consider race as at least a small part of the review process and will help inform the courts struggling with affirmative action challenges." I bet.

Related: Big Business weighs in with an unpersuasive brief in Fisher v. University of Texas. [Clegg @ Bench Memos] One hopes that Jenner & Block wasn't being paid with shareholder money for this buoyant political correctness.

Update: more discussion.


Nice job, Ted, and thanks for the shout-out at the bottom. Re the Daye study, I'd like to add this (cut and pasted from my Inside Higher Ed post last week):

The fact that the study is completed just in time to be
featured in a Supreme Court amicus brief should tell you something about its rigor; and if you have any doubt that this is more rhetoric than rigor, just read the call-to-arms language of the Conclusion.

It's ironic that the focus should be on law schools (not
directly at issue in Fisher v. University of Texas, of course).
This is an area where the mismatch problem has been shown to be
extremely significant, but the word "mismatch" does not appear in the study, and there is only one (general and inapposite) cite to Richard Sander (who has published widely on the problem of mismatch, particularly in law schools). How can the benefits of diversity be shown to be compelling if the costs are ignored?

The basic approach of the paper is to argue that being
exposed to students of diverse backgrounds and perspectives has educational benefits, and that students of different races tend to have different backgrounds and perspectives, so therefore admitting students with an eye on their skin color will have educational benefits, thereby justifying the racial
discrimination. This is not a new argument, of course; it's the argument that has been used since Bakke. The
study tries to show a correlation between race and backgrounds and perspectives, but no one disputes that such a correlation exists. The real issue (to which the study does not
speak) is whether there is a justification for using race as a PROXY for different backgrounds and perspectives -- that is, for making generalizations that in any other context would be called stereotyping -- rather than simply seeking socioeconomic and/or intellectual diversity directly. Or by simply TELLING students
about different perspectives, or asking them the READ Justice Clarence Thomas's opinions as well as Justice Thurgood Marshall's. On this last point, btw, read page 86 and
see how the authors tie themselves in knots, trying to arguing that a critical mass is needed since, while not all blacks think alike, most of them do. What's more the study (last paragraph on page 42) is rather guarded on how much is learned by personal interaction.

Finally, the conclusion that law schools that have more
diversity are perceived as welcoming more diversity proves ... what?

The issues chosen to show how racial diversity correlates
with perspective diversity are deliberately narrow (Anything about property? How about tax? How about civil procedure? How about corporate governance? Etc.), and of course law itself is a discipline in which such correlation is more likely that most others (Is there a Latina perspective in chemistry? Mathematics? Economics? Engineering? Russian? Etc.) Even if there are some educational benefits to having racial diversity in a class on "Race and the Law," that would not justify racial preferences in undergraduate admissions to the University of Texas.

Excellent response to a conclusion-driven "study." I would just add that the supposed benefit of student discussions about the law is vastly overrated. While it might be intellectually stimulating to hear other students talk about their experiences with and opinions about the law, students aren't much interested in that. They want to know what the law is, not what, from a variety of perspectives, might be said to be wrong with it. None of that talk will help them pass the bar exam.

Nor is it true that, whatever value there might be in those discussions, it's necessary to recruit a "diverse" student body to have them. Professors can interject discussion of controversial aspects of whatever they're teaching to spark student thinking as they see fit.

The “study” you cite is indeed “unscientific”, but that discredits only the study, not the potential value of race-based admissions to law school. If there is a benefit to racial diversity in the composition of the law profession—which I think there is—that benefit in part derives from making racial minorities stakeholders not only in the demographic composition of the profession but also in how the law develops and how “law” is practiced.

You assume that LSAT scores or college grades are a predictor of success as a law student, and that success as a law student is a predictor of competence in the practice of law. In many fields, the correlation between undergraduate grades or test scores and academic mastery of the subject matter no doubt holds, for example in mathematics, science, and medicine. However, as one of my law professors said, “law ain’t physics”.

Practicing law requires above-average intellect, but not genius. In greater measure, it requires interpersonal skills, integrity, some creativity, and a strong work ethic, not to mention a measure of compassion for the client. Neither the LSAT nor college grades measure these other attributes so necessary to being a “good lawyer”.

In my personal observation, formed in the course of thirty years of trial practice, one’s capacity for academic mastery of “law” as a subject matter doesn’t correlate with success in the courtroom, or in dealing with the myriad problems of real, live humans. In the day-to-day grind of law practice, I have not found that mastery of the esoteric legal theories beloved by legal scholars has much to do with problem resolution in courtrooms or elsewhere.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


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