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Affirmative Action in Law School Admissions: What Do Racial Preferences Do?

Jesse Rothstein

Assistant Professor of Economics and Public Affairs, Princeton University

Albert H. Yoon

Professor of Law and Professor of Political Science (by courtesy),Northwestern University

We are thankful for comments from workshop participants at the American Bar Foundation, the National Bureau of Economic Research, and The University of Chicago; and from Douglas G. Baird, Richard Brooks, David Gerber, Lani Guinier, John Heinz, Bill Kidder, Richard Lempert, Tracey Meares, Randall Picker, Eric Posner, Max Schanzenbach, Stephen M. Shavell, David Weisbach, Justin Wolfers, and Robert Yalen. We thank the Andrew W. Mellon Foundation for financial support.We alone are responsible for the contents and for all remaining errors.

In 1965, President Lyndon B. Johnson argued that the rapidly proceeding elimination of formal legal discrimination against AfricanAmericans was insufficient:

[F]reedom is not enough. . . . You do not take a person, who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you are free to compete with all the others,” and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity.

The result was an architecture of preferences in educational admissions and hiring for African-Americans. Over forty years later, heated debate over the wisdom and constitutionality of these policies continue. Opponents of race-conscious policies argue that formal consideration of race violates the Equal Protection Clause. But the Supreme Court has held, most recently in Grutter v Bollinger, that equal protection objections to race-based preferences can be overcome by a compelling state interest in “diversity.” Not surprisingly, much of the foundational scholarship on affirmative action has addressed the constitutional and normative questions. But much of the current debate turns on positive questions. Does affirmative action contribute to the advancement of AfricanAmericans in our society? If so, by how much? And how great is the cost in terms of the whites who are displaced by the use of preferences?

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