The Magazine

The Mismatch Game

From the January 3 / January 10, 2005 issue: How law school race preferences harm black students.

Jan 3, 2005, Vol. 10, No. 16 • By TERRY EASTLAND
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AFFIRMATIVE ACTION EMERGED IN THE 1960s as a policy intended to help blacks. How, then, would institutions committed to affirmative action respond if it could be shown that the policy does blacks more harm than good? Richard Sander, a law professor at UCLA, is about to find out.

This week the Stanford Law Review will publish his article, "A Systematic Analysis of Affirmative Action in American Law Schools." By "affirmative action" in the law schools, Sander means the racially preferential variety used in admissions, and his focus is exclusively on preferences extended to blacks, the original beneficiary group, the other such groups having been added later (and for less compelling reasons).

The title of the 117-page study is as dull as Sander's conclusion is sharp. "What I find and describe," he writes, "is a system of racial preferences that, in one realm after another, produces more harms than benefits for its putative beneficiaries." Sander makes the further, riveting point that "the annual production of new black lawyers would probably increase if racial preference were abolished tomorrow."

Who is Richard Sander anyway? Perhaps not the man you would imagine from the analysis above. A lifelong Democrat, a liberal on most issues, he has a long record of involvement in civil rights issues, including housing segregation. His son is biracial. "So the question," he notes in the article, "of how nonwhites are treated and how they fare in higher education gives rise in me to all the doubts and worries of a parent." Because he favors race-conscious strategies in principle, his article is a classic instance of following an argument wherever it leads. At volokh.com--the blog where he summarized his findings--he wrote that he was "surprised and dismayed" by his "generally negative conclusions," which "put me at odds with many close friends."

In an interview, he told me there could be "a significant professional cost" for having written the article, which is already under attack. But he remains confident of his findings, and he's prepared to defend them. He'll reply to critics in a future issue of the law review. And he's writing a book looking at the impact of affirmative action on all favored groups, not just blacks.

There's something else to report about Sander, perhaps the most important thing. Besides being a lawyer, he's also an economist. And "A Systemic Analysis" is plainly the work of an economist. Sander doesn't address the familiar legal issues involved with affirmative action (no parsing of strict scrutiny here) but instead asks whether preferences "meet their simplest goals of producing more and better black lawyers."

To answer it, Sander needed relevant data. Through FOIA requests he collected 2002 and 2003 admissions data from seven public law schools, some of them among the nation's very best. He also worked from the data gathered by the Law School Admission Council on one national cohort of law students--27,000 students who entered law school in 1991. LSAC, which tracked the students (representing 95 percent of all accredited law schools) through 1997, collected information on the students' admissions credentials (LSAT score and undergraduate GPA), race, academic performance, and bar exam outcomes.

Sander was working with his data sets 18 months ago when the Supreme Court upheld the admissions preferences used by the Michigan law school. Justice O'Connor's opinion for the Court in Grutter v. Bollinger accepted the notion advanced by Michigan and its large roster of amici that preferences benefit those they target, which in this case included blacks, Latinos, and Native Americans. Sander had come to the opposite conclusion, and what he noticed about the Michigan law school case (and its companion case from the University of Michigan) was, he told me, how "saturated" they were with social science. "So much of it was really bad. That was one of the reasons I wrote [the article]."