In 1988, New York State’s Chief Judge established a committee, The New York State Judicial Commission on Minorities. Its purpose was to study the presence and effects of racism in the state’s courts. Buried in its final 2000-page report was the finding that minorities passed the New York bar exam at significantly lower rates than whites. The commission found that for the period spanning 1985 through 1988, first-attempt pass rates were 31.1 percent for blacks and 73.1 percent for whites. Applying the methods of Appendix A, we translated these pass rates to a corresponding black-white mean difference of 1.11 SD.
Several years later, commenting on the Commission’s findings, Edna Wells Handy wrote in The New York Law Journal of April 1996, "Determining whether those pass rates have remained constant since the Commission’s report must await the completion and dissemination of the national bar exam study presently being conducted by the Law School Admission Council." Ms. Handy was referring to the most ambitious study of law students ever attempted. The Law School Admission Council is the organization that administers the Law School Admission Test (LSAT). At the time Handy’s article appeared, it was tracking 27,000 students who enrolled in U.S. law schools in the fall of 1991. The students were followed from law school entry to the bar exam. The Council issued its report in 1998, finding that 92 percent of white law-school graduates passed the bar exam on the first attempt, as did 61 percent of black graduates. This implies a black-white mean difference of 1.13 SD.
The Council also reported the results of repeated attempts at the bar exam. It found that eventually 97 percent of white and 78 percent of black law graduates passed, corresponding to a black-white mean difference of 1.11 SD.
The one-plus SD gap between black and white lawyers stubbornly refused to go away. Others, however, viewed the Council’s findings differently. "This study strongly refutes the myth that affirmative action policies tend to set students up for failure on the bar exam," hallucinated Henry Ramsey Jr., a retired California state judge and member of the committee that oversaw the study.
Tamar Lewin, covering the Council’s report for the New York Times, characterized the Commission’s findings as "likely to provide important support for advocates of affirmative action." Her column appeared under the headline: "Minorities Achieve High Success Rate in Bar Exams, Study Says."
The fact is that affirmative action has stratified the bar by race and ability. Black lawyers lag behind their white colleagues in measured ability by about 1.1 SD. Affirmative action creates a racial gap at law-school entry that never goes away. When entrance credentials are controlled, racial differences mostly vanish. More than 20,000 adult blacks in the U.S. have an IQ of 130 or more, but because of affirmative action, the chance that your black lawyer will be one of them is vanishingly small.
