These other states are Washington, Florida, Michigan, Nebraska, Arizona, New Hampshire, Oklahoma, and most recently, Idaho. See H. Potter, “What Can We Learn from States That Ban Affirmative Action?” The Century Foundation, June 26, 2014, available at <https://tcf.org/content/commen-tary/what-can-we-learn-from-states-that-ban-affirmative-action/?agreed=1/> (last visited March 29, 2021). Idaho was the most recent state to ban affirmative action. See “Idaho Governor Signs Affirmative Action Ban into Law,” Associated Press, March 31, 2020, available at <https://apnews.com/article/bbe0f81d2b4ef63102d749879c045a10> (last visited March 29, 2021).+(last+visited+March+29,+2021).+Idaho+was+the+most+recent+state+to+ban+affirmative+action.+See+“Idaho+Governor+Signs+Affirmative+Action+Ban+into+Law,”+Associated+Press,+March+31,+2020,+available+at++(last+visited+March+29,+2021).>Google Scholar

In the conclusion, I return to Prop 16.Google Scholar

In the current litigation against Harvard and Yale, the principal alleged victims of discrimination in the admissions process are Asian-Americans. See Justice Department Finds Yale Illegally Discriminates Against Asians and Whites in Undergraduate Admissions in Violation of Federal Civil-Rights Laws, United States Department of Justice, Aug. 13, 2020, available at <https://www.justice.gov/opa/pr/justice-department-finds-yale-illegally-discriminates-against-asians-and-whites-undergraduate> (last visited March 30, 2021) (stating that the Department of Justice “notified Yale University…that Yale discriminates against Asian American and white applicants in its undergraduate admissions process” after a two-year investigation “in response to a complaint by Asian American groups.”); Justice Department Files Amicus Brief Explaining that Harvard’s Race-Based Admissions Process Violates Federal Civil-Rights Law, United States Department of Justice, Feb. 25, 2020, available at <https://www.justice.gov/opa/pr/justice-department-files-amicus-brief-explaining-harvard-s-race-based-admissions-process> (last visited March 30, 2021) (stating that “Students for Fair Admissions, an organization of students and parents, alleged that Harvard College intentionally discriminates against Asian-American applicants when making admissions decisions…”).+(last+visited+March+30,+2021)+(stating+that+the+Department+of+Justice+“notified+Yale+University…that+Yale+discriminates+against+Asian+American+and+white+applicants+in+its+undergraduate+admissions+process”+after+a+two-year+investigation+“in+response+to+a+complaint+by+Asian+American+groups.”);+Justice+Department+Files+Amicus+Brief+Explaining+that+Harvard’s+Race-Based+Admissions+Process+Violates+Federal+Civil-Rights+Law,+United+States+Department+of+Justice,+Feb.+25,+2020,+available+at++(last+visited+March+30,+2021)+(stating+that+“Students+for+Fair+Admissions,+an+organization+of+students+and+parents,+alleged+that+Harvard+College+intentionally+discriminates+against+Asian-American+applicants+when+making+admissions+decisions…”).>Google Scholar

Many of these works are cited infra, such as the note to Table 2, and notes 15, 16, 17, 21, 30, 47, and 54.Google Scholar

National Center for Education Statistics, NAEP 2012: Trends in Academic Progress, pp. 18, 39.Google Scholar

NCES, Table 226.10, available at <https://nces.ed.gov/pro-grams/digest/d15/tables/dt15_226.10.asp> (last visited March 30, 2021) reports SAT means by race over a twenty-year period (ending in 2014-15, when the SAT was reconfigured), and shows Black verbal SAT scores at consistently slightly less than 100 points below white scores, while Black math SAT scores are consistently slightly more than 100 points below white scores (both exams are scaled to have standard deviations of approximately 100 points).+(last+visited+March+30,+2021)+reports+SAT+means+by+race+over+a+twenty-year+period+(ending+in+2014-15,+when+the+SAT+was+reconfigured),+and+shows+Black+verbal+SAT+scores+at+consistently+slightly+less+than+100+points+below+white+scores,+while+Black+math+SAT+scores+are+consistently+slightly+more+than+100+points+below+white+scores+(both+exams+are+scaled+to+have+standard+deviations+of+approximately+100+points).>Google Scholar

Racial disparities in school funding are small or nonexistent in most states today, and a vast body of literature has found little correlation between school funding levels in the U.S. and test scores. Hanushe, E. and Lindset, A., Schoolhouses, Courthouses, and Statehouses: Solving the Funding-Achievement Puzzle in America’s Public Schools (Princeton N.J., Princeton, University Press, 2009).CrossRefGoogle Scholar

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See, e.g., Lucey, and Saguil, , “The Consequences of Structural Racism on MCAT Scores and Medical School Admissions: The Past is Prologue,” Academic Medicine 95, no. 3 (2020): 351-356.CrossRefGoogle ScholarPubMed

I have written extensively about how we can powerfully redress racial inequality through straightforward strategies reducing racial housing segregation, in Sander, R., Kucheva, Y., and Zasloff, J., Moving Toward Integration (Harvard, 2018).CrossRefGoogle Scholar

In 2013, Harvard’s Office of Instructional Research conducted an analysis of undergraduate admissions, and found that, absent the inclusion of “demographic factors,” Blacks would constitute only 2.4% of a freshman class. The memo surfaced from discovery conducted by Students for Fair Admissions (“SFFA”) in its suit against Harvard.Google Scholar

Indeed, in the admissions cycles for 2016-2018, the proportion of African-American domestic applicants admitted was equal, to within a hundredth of a percentage point, to the proportion of non-African-Americans domestic applicants admitted. See P. Arcidiacono, “Expert Report 1,” Students for Fair Admissions v. Harvard (available from the author).Google Scholar

First Expert Report of P. S. Arcidiacono, Students for Fair Admissions, Inc. v. Harvard (2018), p. 3.Google Scholar

For a more detailed discussion and illustrations of the cascade effect, see Sander, R. and Taylor, S., Mismatch (New York: Basic Books, 2012), chapter two.Google Scholar

In the world of law schools, so much emphasis is given to these rankings that students, professors, and practicing lawyers alike tend to refer “elite” versus “non-elite” law schools, and place schools in “tiers” of ranking. See Sander and Bambauer, “The Secret of My Success: How Status, Eliteness, and School Performance Shape Legal Careers,” Journal of Empirical Legal Studies 9 (2012): at 895-98.CrossRefGoogle Scholar

The law school data shown here is from an earlier period (1999) than the medical school data (2013). I have a good deal of more recent law school data that shows similar patterns, but the 1999 Michigan data is significant because this was the admissions year at the University of Michigan Law School that was the subject of a major affirmative action case: Grutter v. Bollinger, 539 U.S. 306 (2003), which laid down several key, but vague, rules about how universities using racial preferences could stay within constitutional bounds. I explore the jurisprudence of Grutter, and its lack of meaningful effects upon law school admissions patterns, in Sander, “Why Strict Scrutiny Requires Transparency,” chapter 15 in K. T. McGuire, ed., New Directions in Judicial Politics (New York: Routledge, 2012).Google Scholar

See Sander and Bambauer, id., at 897. The US News rankings, which are discussed further in the article, come from that publication’s 2012 rankings of law schools.Google Scholar

See M. Butterick, “A Comparative Survey of Affirmative Action Among Business, Medical, and Law Schools,” unpublished paper on file with the author, December 2005. Butterick used US News rankings and data to compute an “index” (similar to those I use in Section 1) for ranked law schools and medical schools. Plotting school median index by school rank, it is obvious that the medical schools are less hierarchical. For example, in Butterick’s analysis the median academic index of the top ten law schools was about 860; the median for law schools ranked between 50th and 60th place was about 740 — a 120 point gap. At the top ten medical schools, the median academic index was about 825, while at schools ranked between 50th and 60th place, the median index was about 765. Butterick at pp. 43-44.Google Scholar

In 2014, the NCES reported 2.426 million Black undergraduates our of a total population of 16.26 million domestic undergraduates. Statistical Abstract of the United States: 2017, at 191. In 2016-17, Blacks accounted for 10.5% of bachelor’s degrees conferred on U.S. and permanent domestic residents made up 10.5% of domestic 2018 NCES Digest of Education Statistics at 336.Google Scholar

Sander and Taylor, supra note 14, surveys much of the literature, though a great deal of important work has appeared since 2012. In other work, I have pointed out that there are several distinct types of mismatch effects: “learning” mismatch, where the disparity in credentials directly undermines learning in and out of the classroom; “competition” mismatch, where — learning effects aside — very difficult competition leads to lower grades and withdrawal from rigorous majors; and “social” mismatch, where large academic disparities have harmful social effects. See Arcidiacono, Espenshade, Hawkins, and Sander, “A Conversation on the Nature, Effects, and Future of Affirmative Action in Higher Education Admissions,” Journal of Constitutional Law 17 (2014) 715-717 .Google Scholar

Taylor and I discuss this debate in Chapter Six of Mismatch, supra note 14; the notes to those pages provide references to several works of scholarship with diverse findings on the issue.Google Scholar

Harvard has an undergraduate graduation rate of close to 100%, while most large state universities have graduation rates between 60% and 80%. C.f. “What is Harvard’s Graduation Rate,” Harvard College, available at <https://college.harvard.edu/resources/faq/what-harvards-graduation-rate> (last accessed on Nov. 16, 2020) (stating that Harvard College’s graduation rate “is normally 98%, among the highest at American colleges and universities) with Retention and Graduation Rates of First-time, Full-Time Degree Seeking Freshmen, Oregon State University, available at <https://institu-tionalresearch.oregonstate.edu/sites/institutionalresearch.oregonstate.edu/files/retention_graduation_report_2019-20.pdf> (last accessed on Nov. 16, 2020) (showing that the 6 year graduation rate of their cohorts has largely stayed below 70%); Retention and Graduation Rates for First-Time Full-Time Freshmen-Metropolitan Campuses, Arizona State University (last accessed on Nov. 16, 2020), available at <https://www.asu.edu/facts/#/facts/retention/freshman> (last visited March 31, 2021) (showing that the 6-year graduation rate is usually below 70%, often below 60%); Graduation Rate, Michigan State University (last accessed on Nov. 16, 2020), available at < https://msu.edu/state-transparency-reporting/Section245FY17_2c> (showing that Michigan State University’s graduation rate is generally near 80%, but is consistently 71% for Pell Grant Recipients).+(last+accessed+on+Nov.+16,+2020)+(stating+that+Harvard+College’s+graduation+rate+“is+normally+98%,+among+the+highest+at+American+colleges+and+universities)+with+Retention+and+Graduation+Rates+of+First-time,+Full-Time+Degree+Seeking+Freshmen,+Oregon+State+University,+available+at++(last+accessed+on+Nov.+16,+2020)+(showing+that+the+6+year+graduation+rate+of+their+cohorts+has+largely+stayed+below+70%);+Retention+and+Graduation+Rates+for+First-Time+Full-Time+Freshmen-Metropolitan+Campuses,+Arizona+State+University+(last+accessed+on+Nov.+16,+2020),+available+at++(last+visited+March+31,+2021)+(showing+that+the+6-year+graduation+rate+is+usually+below+70%,+often+below+60%);+Graduation+Rate,+Michigan+State+University+(last+accessed+on+Nov.+16,+2020),+available+at+<+https://msu.edu/state-transparency-reporting/Section245FY17_2c>+(showing+that+Michigan+State+University’s+graduation+rate+is+generally+near+80%,+but+is+consistently+71%+for+Pell+Grant+Recipients).>Google Scholar

See Sander, “Fifteen Questions About Prop 16 and Prop 209, University of Chicago Law Review online, 10/30/2020; for years after 2000, data on UC graduation rates by campus and race, available at <https://www.universityofcalifornia.edu/infocenter/ug-outcomes> (last visited March 31, 2021).+(last+visited+March+31,+2021).>Google Scholar

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See in particular Smyth and McArdle, id.Google Scholar

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Author’s calculations from the Bar Passage Study database.Google Scholar

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Sander, R., “A Systemic Analysis of Affirmative Action at American Law Schools,” Stanford Law Review 57, no. 2 (2004): 367-483; see tables at 428, 439, 444 and accompanying text. This is not to say that the racial gap in bar passage would vanish; across all bar-takers, the credentials of Black bar-takers would still be lower and thus their pass rate would be lower. But the very large “unexplained” gap in bar passage would disappear.Google Scholar

See, J. R. Gross, “Trends in Medical School Curricula,” Independent Educational Consultants Association <https://www.iecaonline.com/quick-links/parents-students/graduate-profes-sional-school-advising/trends-in-medical-school-curricula/> (last accessed on Nov. 16, 2020), (describing how medical schools have started clinical trainings earlier, eliminating earlier science coursework, have added more interdisciplinary work, and creating more individualized options for students); Effective Use of Educational Technology in Medical Education, AAMC Institute for Improving Medical Education, March 2007, available at <https://store.aamc.org/downloadable/download/sample/sample_id/111/> (last visited April 1, 2021) (emphasizing that adopting educational technologies in medical schools can create much more “individualized learning” experiences).+(last+accessed+on+Nov.+16,+2020),+(describing+how+medical+schools+have+started+clinical+trainings+earlier,+eliminating+earlier+science+coursework,+have+added+more+interdisciplinary+work,+and+creating+more+individualized+options+for+students);+Effective+Use+of+Educational+Technology+in+Medical+Education,+AAMC+Institute+for+Improving+Medical+Education,+March+2007,+available+at++(last+visited+April+1,+2021)+(emphasizing+that+adopting+educational+technologies+in+medical+schools+can+create+much+more+“individualized+learning”+experiences).>Google Scholar

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Id. at Tables 3 and 4; see also Case, S., Swanson, D., and Ripkey, D., “Performance of the Class of 1994 in the New Era of USMLE,” USMLE Report 71, no. 10 (1996): 591-593; D. Andriole and D. Jeffe, “Prematriculation Variables Associated with Suboptimal Outcomes for the 1994-1999 Cohort of US Medical School Matriculants,” JAMA 304, no. 11 (2010): 1212-1219.Google ScholarPubMed

See the studies cited in note 26, supra.Google Scholar

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I could not find cohort-tracked data on graduation rates by race, but the AAMC does provide annual data on matriculants and graduate, available at <https://www.aamcdiversityfact-sandfigures2016.org/report-section/applicants-enrollment/> (last visited April 1, 2021). By combining data over eight cohorts, I obtained the estimates given here.+(last+visited+April+1,+2021).+By+combining+data+over+eight+cohorts,+I+obtained+the+estimates+given+here.>Google Scholar

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While a couple of generations ago, many physicians did not seek certification because they were general practitioners, “general practice” has now been largely displaced by “family practice” or internal medicine, both of which are specialties that involve residency training and specialized board certifications. See also S. Schneid, A. Apperson, N. Laiken, J. Mande, C. Kelly, and K. Brandl, A Summer Prematriculation Program to Help Students Succeed in Medical School, Advances in Health Science Education, 2018; this article describes a summer program at UC San Diego that gathers “academically disadvantaged” students for a rigorous, seven-week program before the first year of medical school begins, and which documents substantial, positive effects from the program on student academic outcomes.Google Scholar

Id. at 36 (Table 27).Google Scholar

See Rolph, J., Williams, A., and Laniear, A., “Predicting Minority and Majority Medical Student Performance on the National Board Exams,” The RAND Corporation, 1978.Google Scholar

Keith et al. report the distribution of minority and non-minority performance indices in Table 1 of their report. If minorities had achieved certification at the rate of non-minorities with the same performance index, their certification rate would have been about 69% — far higher than their actual rate of 49%. From this I infer that less than half of the racial gap in certification rates is explained by differences in performance indices.Google Scholar

In the law school context, it has been extraordinarily difficult to extract from reluctant administrators the relatively simple data needed to conduct this sort of test, but my colleagues and I have obtained such data from a few law schools and have applied the method described here in “Mismatch and Bar Passage: A School Specific Analysis,” working paper available from the author. This shows larger and stronger mismatch effects than the indirect tests used in, for example, my Systemic Analysis paper.Google Scholar

The legal profession regulates entry at the state level, with each state deciding on the necessary qualifications for admission to the bar. Nearly all states rely in part on a national exam, but many add state-level components and all states set their own “pass” thresholds. California was the most recent state to lower its passing threshold, and the rationale was generally thought to have been largely based on a desire to increase the racial diversity of the bar. See M. Dolan, “California is easing its bar exam score, which critics argue fails to measure ability,” Los Angeles Times, July 26, 2020, available at <https://www.latimes.com/california/story/2020-07-26/california-lowers-bar-exam-score-coronavirus> (last visited April 1, 2021).+(last+visited+April+1,+2021).>Google Scholar

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See, e.g., Teherani, A., Hauer, K., Fernandez, A., King, T., and Lucey, C., “How Small Differences in Assessed Clinical Performance Amplify to Large Differences in Grades and Awards: A cascade with Serious Consequences for Students Underrepresented in Medicine,” Academic Medicine 93, no. 9 (2018): 1286-1292; D. Boatright, D. Ross, P. O’Connor, E. Moore, M. Nunez-Smith, “Racial Disparities in Medical Student Membership in the Alpha Omega Alpha Honor Society,” JAMA Internal Medicine 177, no. 5 (2017): 659-665.CrossRefGoogle ScholarPubMed

See Jones, A., Nichols, A., McNicholas, C., and Stanford, F., “Admissions is not Enough: The Racial Achievement Gap in Medical Education,” Academic Medicine (in press, 2021), which provides a very helpful overview of the problem and current critiques of medical training from a diversity point of view.CrossRefGoogle Scholar

Makhoul, A., Pontell, M., Kumar, N., and Drolet, B., “Objective Measures Needed: Program Directors’ Perspectives on a Pass/ Fail USMLE Step I,” New England Journal of Medicine 382 (2020): 2389-2392.CrossRefGoogle Scholar

Socioeconomic status is generally measured by educational achievement, occupational prestige, and/or income; it is intended to measure the degree of privilege, or disadvantage, one experiences within the social or class structure of society.Google Scholar

See “Obama’s Take on Affirmative Action,” Seattle Times, May 15, 2007.Google Scholar

See Sander, R., “Class in American Legal Education,” Denver University Law Review 88, no. 4 (2011): 631-682 (including detailed methodological appendices). The data on young lawyers quoted here comes from Table 1 and Table 8, pp. 631 and 639. My analysis used data from the After the J.D. study, a unique attempt to study in depth a representative sample of lawyers near the outset of their careers. The over four thousand participants completed a questionnaire in 2003-04 that, among other things, asked about the level of educational achievement and the occupation of each parent. I then converted the occupations to scores based on sociological research on occupational eliteness, and then compared both educational and occupational attainment to census microdata on adults in the same age ranges as the resondents’ parents would have been in 2000. I could thus assign an overall percentile capturing the parents’ SES percentile. The methodology is described in detail at pp. 670-78.Google Scholar

Id. at 656-658.Google Scholar

As part of the medical school application process, the AMCAS (Ameerican Medical College Application Service) Program collects some socioeconomic status information and also allows some students to indicate if they believe they are disadvantaged. 2020 AMCAS Applicant Guide, American Medical College Application Service, at 25,70, available at <https://aamc-orange.global.ssl.fastly.net/pro-duction/media/filer_public/b2/23/b223c482-8ba3-44dd-bb1c-8835ac84f3e6/2020amcasapplicantguide-060419.pdf> (last visited April 1, 2021). This gives applicants a chance to explain why they believe they are disadvantaged, id. at 25, and allows the AMCAS application process to review one’s parental education to assess a separate indicator of being disadvantaged, id. at 70.+(last+visited+April+1,+2021).+This+gives+applicants+a+chance+to+explain+why+they+believe+they+are+disadvantaged,+id.+at+25,+and+allows+the+AMCAS+application+process+to+review+one’s+parental+education+to+assess+a+separate+indicator+of+being+disadvantaged,+id.+at+70.>Google Scholar

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Author’s tabulation of AJD data (the raw data sources used in Sander, supra note 18).Google Scholar

Guric et al., supra note 54, at 2 (finding that in 2008, that for African American medical students, 26% of the fathers had at least a bachelor’s degree, 33% of the mothers had at least a bachelor’s degree, 37% of the fathers had a graduate degree, and 33% of the mother’s had a graduate degree. See also “Student and Resident Letters to the Editor: Professional Identity and Diversity and Inclusion,” and Le, H., “The Socioeconomic Diversity Gap in Medical Education,” Academic Medicine 92, no. 8 (2017), (two letters to the editor describing the reason for lack of socioeconomic diversity, such as the high cost of medical school and the need for socioeconomic diversity, such as serving underrepresented communicates more effectively).CrossRefGoogle ScholarPubMed

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For example, compare the 20% of Americans in the lowest income quintile with the 4% of medical students whose parents are in the lowest income quintile.Google Scholar

A recent AAMC study found that medical school admissions officers weigh both SES and race/ethnicity as equally of “Medium Importance” in admissions decisions. “Using MCAT Data in 2001 Medical Student Selection,” Association of American Medical Colleges, at 15 (2020), available at <https://www.aamc.org/media/18901/download> (last visited April 1, 2021). However, as I discussed in Part 1, it’s clear that in fact, medical schools place great weight on race in admissions. In contrast, in my regression analyses of schools the disclosed individual credential, race, and SES data on applicants and admits, I found that SES was given little or no weight — except, as noted in the text, University of California schools, which are legally barred from considering race. Even here, the weight given to race appeared to be larger than the weight given to SES. For an argument that the problem lies in the difficulty of accurately assessing SES, see Grbric, D., et. al., “The Role of Socioeconomic Status in Medical School Admissions: Validation of a Socioeconomic Indicator for Use in Medical School Admissions,” Academic Medicine 90, no. 7 (2015): 953-960.CrossRefGoogle Scholar

After the passage of Prop 209 prohibited the use of racial preferences at the University of California, I helped to launch an experiment at UCLA’s law school that gathered information on the SES background of applicants and used that to administer modest SES preferences. This initiative dramatically increased SES diversity at the law school; the average size of the preference used was a fraction of the size of earlier racial preferences; and the admitted class had the highest bar passage rate in the school’s history. See Sander, “Experimenting with Class-Based Affirmative Action,” Journal of Legal Education 47, no. 4 (1997): 472-503. See also Bowen, W., Kurzwell, M., and Tobin, E., Equity and Excellence in Higher Education (Charlot-tesville, VA: Univeristy of Virginia Press, 2006), which discusses the lack of SES diversity in colleges and lays out the case for class-based affirmative action.Google Scholar

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According to the 2017 Statistical Abstract of the United States (Table 61), multiracial marriages including a Black partner have risen from about 201,000 in 1980 to about 749,000 in 2015. My estimate is that about a tenth of all marriages involving a Black person are now with a partner of another race.Google Scholar

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See, for example, “Economic Diversity Among the Top 25 National Universities,” available at <https://www.usnews.com/best-colleges/rankings/national-universities/economic-diversity-among-top-ranked-schools> (last visited April 1, 2021).+(last+visited+April+1,+2021).>Google Scholar

The UC Board of Regents unanimously endorsed ACA 5, repeal of Prop. 209, UC Office of the President, June 15, 2020, available at <https://www.universityofcalifornia.edu/press-room/uc-board-regents-endorses-aca-5-repeal-prop-209> (last visited April 1, 2021) (stating that the UC Board of Regents unanimously endorsed ACA 5 [i.e., Prop. 16 as it as originally introduced and called in the California legislature] and the repeal of Prop. 209, calling Prop. 209 “‘a stain’” that has “challenged the University’s ardent efforts to be equitable and inclusive.” Id. +(last+visited+April+1,+2021)+(stating+that+the+UC+Board+of+Regents+unanimously+endorsed+ACA+5+[i.e.,+Prop.+16+as+it+as+originally+introduced+and+called+in+the+California+legislature]+and+the+repeal+of+Prop.+209,+calling+Prop.+209+“‘a+stain’”+that+has+“challenged+the+University’s+ardent+efforts+to+be+equitable+and+inclusive.”+Id.>Google Scholar