Last Wednesday, we reported on Baylor Law School’s inadvertent release of personal academic information for its entire admitted class — names, addresses, GPAs, LSAT scores, and scholarship offers. Last Friday, my colleague Elie Mystal used this data to argue in defense of affirmative action.

We believe in offering a wide range of perspectives here at Above the Law. That’s one thing that’s nice about having four full-time writer/editors — myself, Elie, Staci Zaretsky, Chris Danzig — and about a dozen outside columnists.

Today we bring you a different viewpoint on the Baylor law admissions data. Prominent lawyer and blogger Ted Frank, previously profiled in these pages for his work in the class-action area, uses the same data to argue against affirmative action.

Let’s hear what he has to say, shall we?

By way of background, here’s what Elie originally wrote:

Eyeballing the numbers (and I haven’t done a full statistical analysis on this data because I think it’s kind of missing the point), I see about a three to four point bump for African-American or Hispanic students. By “bump,” I mean to say that if you were a white student, you had a fighting chance to get into Baylor with a 161 or 162 LSAT score. If you were black or Latino, you were in the running with a 159 or 158. There are some outliers, of course — a black kid with a 156, a white kid with a 158 — but, in general, I’m eyeballing the mode for white students at 162, and the mode for blacks and Hispanics at 159 or 158.

Unlike Elie, who merely “eyeball[ed]” the data, Ted Frank conducted a detailed statistical analysis. It’s available in full over at Point of Law. Responding to Elie, Frank writes:

This is wrong for a couple of reasons. First, there’s an iceberg effect; the spreadsheet doesn’t have the data of the people who were rejected for admission. If a 3.7 GPA/162 LSAT gets a white a 30% chance of admission, but an African-American a 90% chance of admission (or vice versa), then there’s racial bias with real adverse effects on the disfavored race, even if the averages in the admitted student body doesn’t show a lot of disparity. But it’s wrong because there’s no reason to “eyeball.” It’s already in a spreadsheet; do an hour of work and run the real numbers.

That’s a completely fair point. The Baylor information, although a treasure trove of data, does not include information on rejected students — information that might dramatically alter the picture.

Ted Frank also points out another area where race clearly matters, namely, scholarship money:

Though non-Asian minorities had slightly lower Index scores on average, they averaged $24,231 in scholarship money; whites and Asians averaged under $20,000. It’s unclear to what extent Baylor Law considers financial need in scholarship money, but it’s clear that merit makes a big difference. Over 90% of students with Index scores [note: an LSAT Index adds the LSAT to 10 times the GPA] above 206 got full scholarships (the three who didn’t were white); less than 3% of students with Index scores below 202 got full scholarships, and all seven were African-American or Hispanic.

Frank calculates the value of the right kind of skin pigmentation or ethnic background:

Checking the African-American box on your Baylor Law application is worth $9575/year, all else being equal; Hispanic heritage is worth $7023. In other words, if you were a white with your heart set on a scholarship to Baylor Law, and a magical genie offered you the choice of increasing your LSAT score by 4 points or changing your skin color, you’d be better off financially with the latter option.

In fairness to Baylor, they’re just trying to “keep up with the Joneses,” in a certain sense. Frank explains:

I don’t mean to single out Baylor; it’s undoubtably the case that virtually every other top-sixty school is engaging in the same shenanigans in competing for a limited pool of qualified African-Americans. (NB that I am not claiming that the pool is limited because African-Americans are not smart enough to go to law school; miserable urban public school systems and the disproportionate number of single-mother families surely do a lot to depress the number of African-Americans who get the education to do well at college and apply to law school.)

As Richard Sander has noted, Baylor’s plight is created by the better-ranked schools above it poaching the African-American students who would otherwise be at the top of the Baylor Law class; Baylor has to pony up extra scholarship money just to attract the handful of African-Americans it does have. But it really surprises me that a group as litigious as white law students hasn’t done more to ask for the law to be evenly applied; this is a much easier case for plaintiffs than complaining about alleged consumer fraud in employment statistics.

Well, it ain’t over until the Supreme Court sings. Stay tuned for the ruling in Fisher v. University of Texas.

UPDATE (2:00 PM): Just a small clarification. The Fisher case concerns the Equal Protection Clause of the Fourteenth Amendment, which applies to state action. Private universities like Baylor have more leeway in admissions; they’re subject to federal and state anti-discrimination laws, but not to the strict scrutiny of a governmental racial classification.

P.S. If you’re interested in these issues, you should definitely check out Ted Frank’s complete post. We’ve given you mere excerpts; there’s a lot more in his analysis that’s worth reading.

What does the Baylor Law data leak tell us about affirmative action? [Point of Law]

Earlier: The Baylor Law Data Dump, Now With Race and Scholarships
Baylor Law Screw-Up Reveals Personal Data of Entire Admitted Class: Data That We’ve Got


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