Which serves the interests of the black community better: a black student admitted to a top-tier law school, such as Harvard, Stanford or Yale, and winds up in the bottom 10 percent of his class, flunks out, or cannot pass the bar examination, or a black student admitted to a far less prestigious law school, performs just as well as his white peers, graduates and passes the bar? I, and hopefully any other American, would say that doing well and graduating from a less prestigious law school is preferable to doing poorly and flunking out of a prestigious one.
Professor Gail Heriot, U.S. Commission on Civil Rights commissioner and member of the University of San Diego law faculty, addresses academic mismatch in her article "Affirmative Action in American Law Schools," in The Journal of Contemporary Legal Issues (2008). Citing UCLA law professor Richard Sander's research, Professor Heriot says that at elite law schools 52 percent of black students had first-year grades that put them in the bottom 10 percent of their class as opposed to 7 percent white students. Black students had a higher failing and dropout rate, 19 percent compared to 8 percent for white students. Only 45 percent of blacks passed the bar exam on their first try compared with 78 percent of whites. Even after multiple attempts, only 57 percent of blacks succeeded in passing the bar.
Professor Heriot points out that this tragedy is reversed when black and white law students with similar academic credentials compete against each other at the same school. They earn about the same grades. When these students with the same grades from the same-tier school took the bar examination, they passed at the same rate.