UCLA law Professor Richard Sander’s latest study on the
negative effects of affirmative action on black students in law
school will be published by the Stanford Law Review in
mid-December.
And there is already a large amount of controversy surrounding
Sander’s conclusion that black students do not succeed in law
school or pass the BAR exam at the same rate white students do.
Sander has been looking at this issue for the past couple of
years, but he began working on this project in May 2003.
“It seemed to me that as the affirmative action in (the
University of) Michigan unfolded, it was clear that there was
really a poverty of research on long-term outcome from racial
preferences in educational institutions,” Sander said.
His study argues that “in the case of blacks, at least,
the objective costs of preferential admissions appear to
substantially outweigh the benefits.”
Affirmative action has been a controversial issue for decades,
and came to a head with the 2003 Supreme Court case Grutter v.
University of Michigan in which Grutter, a white female, argued
that she was a victim of reverse discrimination.
The court voted that university admissions may use general
targets in trying to accept a wide variety of races, as long as
race is not a preeminent factor.
“I argue in the paper that what law schools are doing
probably violates Grutter, which created a more flexible standard
for affirmative action,” Sander said. “I don’t
argue that we should get rid of preferences altogether, but look at
cost of benefits to affirmative action that will maximize the
benefits.”
Sander’s conclusions are based on data that he has
collected from law schools across the United States, with his focus
on black and white students.
One of the matters Sander points out from the data is that the
median black student starting law school in 1991 received
first-year grades that were considerably lower than the grades of
the student’s white peers.
Sander shows that this sets a pattern for the rest of the black
students’ time at law school, and will lead to their lower
passage rates on the BAR exam, and thereby fewer black students
becoming practicing lawyers.
Some law professors are skeptical of Sander’s study,
especially with regard to the data he uses.
“It is best to allow other scholars to have a look at the
data Sander uses before anyone jumps to any conclusions,”
said Goodwin Liu, a law professor at UC Berkeley.
Because Sander’s study will be published in the Stanford
Law Review, his article will only be edited by Stanford law
students.
Sander will nonetheless be receiving critique from his peers
through articles that will and have already been published.
Appearing in the Wall Street Journal, the Equal Justice Society
has written a rebuttal to Sander’s study. Among its writers
is William Kidder, an EJS researcher.
“Sander’s study is a polemical attack on affirmative
action masquerading as social science; his claim that ending
affirmative action would increase the number of black lawyers is
based on an alarming number of statistical errors, erroneous
assumptions and wild inferences,” Kidder said. “The
best refutation of Sander’s article is to be found in his own
data.”
Many scholars agree that the errors they have found in
Sander’s study arise from what they claim to be his failing
to examine other reasoning behind the data.
“His explanations are entirely divorced from the findings;
they are not empirically tested,” said UCLA law Professor
Richard Abel. “He finds that African Americans do less well
in law school, (but) there are multiple explanations: accuracy of
undergraduate institution, financial need, demands made by the
family on the student.”
Ian Lopez, a law professor at UC Berkeley, sees the importance
of investigating this subject matter, but does not agree with
Sander’s methods.
“He has come up with very counter intuitive results. One
would expect that when you normally come up with counter intuitive
results you proceed carefully and come up with why you came up with
those results. You invite reactions to it so you can consider
possible objections and mistakes,” he said, “It is all
the more important in an area that is more sensitive. … (One)
must precede cautiously because of the subject matter.”
Despite the controversy Sander is already facing, his main goal
is to promote further discussion about the issue, not to instantly
solve it.
“Schools have been so concentrated with the legality of
what they are doing, there has been an unspoken rule that questions
like the ones I am raising shouldn’t be pushed very
far,” he said. “The debate, therefore, has been
philosophical and rhetorical rather than empirical, based on
observations of conditions. I hope this article leads to an
empirical debate on affirmative action in higher
education.”
A draft of Sander’s study can be read at
www1.law.ucla.edu/~sander/.