Phi Beta Cons

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More on Racial Preferences at the University of Nebraska College of Law


Dean Steven Willborn of the University of Nebraska College of Law has responded to a recent study published by the Center for Equal Opportunity, which documented the heavy weight given race and ethnicity in the school’s admissions. The bulk of his response comprises not logical arguments but ad hominem attacks: that I am an outside agitator, that the study is “politically motivated,” and so forth.  Okay, I’m not from Nebraska; okay, our organization does not like racial preferences and supports the Nebraska Civil Rights Initiative, Initiative 424; now, shall we talk about the issue at hand?

The overarching point we’d make is that he does not deny — in fact, he admits — that he engages in racial discrimination. He is unapologetic about this, so if Nebraskans want it to stop, they should vote next week for the NeCRI.

He gives the usual unpersuasive answer for such discrimination, all variants on the theme that somehow “we can better discuss alleged race-based police practices if African-Americans are in the room.” I leave it to readers to decide (A) if it is true that these classroom discussions can be improved if and only if there is a politically correct racial balance, and (B) even if so, whether the discussions are so common and so important and so much better that they justify something as ugly, divisive, and unfair as racial discrimination. 

When it comes down to the study itself, Dean Willborn makes four criticisms. Here’s the first one: “The study has figures like this: 5 percent of the people applying to the Law College in one year were African American and 5 percent of the people admitted were African American. This is not consistent with Mr. Clegg’s thesis, so he never mentioned it in his editorial or elsewhere.”

Well, first of all, and as Dean Willborn acknowledges, the figures are from our study, so it’s not like we’re hiding them. But second and more to the point: Those figures are irrelevant and perfectly consistent with our assertion that discrimination is occurring. Let’s take an extreme example so that Dean Willborn can understand the concept. If you had two equal-sized groups of applicants, and all the members in the first group were less qualified than all the members in the second group, the fact that both groups ended up with the same percentage being admitted would prove discrimination, not nondiscrimination.

Dean Willborn’s second claim is even more ridiculous: “The study uses a statistical model that assumes that law school admissions are made randomly, like flipping coins, even though other statistical models are available that don’t make this assumption and even though this is almost the exact opposite of how law school admission decisions are actually made.”

That is simply not true. Our study assumes that admissions are not made randomly, but that they consider criteria like LSAT scores, undergraduate grades, and Nebraska residency (as the school admits that it does); of course, we also control for race and ethnicity (as well as for sex).

Third, Dean Willborn criticizes the study for not also taking into account other factors, like “whether an applicant was an athlete, grew up in rural Nebraska, lived in a foreign country, or, on the other side of the scale, whether an applicant might have been convicted of a serious felony.” 

Two responses:  First, had we asked for all this information, it likely would have been denied on the grounds that it made applicants “personally identifiable” and, thus, violated their privacy rights (we have run into this issue in earlier studies where we tried to obtain such data). Second, it seems extremely unlikely that any of these factors would explain away the overwhelming evidence that severe preferences are being given on the basis of race (the law school’s website mentions only the LSAT and undergraduate GPA as “[t]he major factors” in admissions). Is the dean really giving a heavy preference to athletes in law school admissions?  Is there a much higher percentage of highly qualified black versus white rural Nebraska applicants (don’t forget that our study shows that black out-of-state applicants are given 20 times more preference that white in-state applicants)? Likewise, is having lived in a foreign country common, relevant, and likely to favor black applicants? And, last, are we to believe that a significant number of applicants are disqualified because of felony convictions and that this somehow tends to disadvantage white applicants at the expense of black applicants?

Fourth and last, Dean Willborn focuses on the relatively low numbers of black enrollees this year. But a discrimination study must look at admittees rather than enrollees; the fact that many African Americans who were admitted chose to go elsewhere does not change the fact that they were discriminatorily granted admission. 

One last point: Note that the Dean’s response talks only about “Whites” and “African Americans”; there is no mention of Asians or Latinos or Native Americans or anyone else. This is typical of the Sixties mindset in which the pro-preference crowd is trapped.


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