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Life of a Law Student, University of Houston Law Center

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Affirmative Action in American Law Schools – Help or Hinderance

By: Luke Gilman | Other Posts by
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Following my post Not So Long Ago, Race in Law School, I stumbled across the work of Richard Sander who ignited an intense debate in 2004 with A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004) (.pdf). Sander, whose son is bi-racial and has spent the majority of his career working in the area of Fair Housing and public interest law, is an unlikely opponent to affirmative action in law school, but his conclusion is unambiguous.

What I find and describe in this Article is a system of racial preferences that, in one realm after another, produces more harms than benefits for its putative beneficiaries …. Perhaps most remarkably, a strong case can be made that in the legal education system as a whole, racial preferences end up producing fewer black lawyers each year than would be produced by a race-blind system. Affirmative action as currently practiced by the nation’s law schools does not, therefore, pass even the easiest test one can set. In systemic, objective terms, it hurts the group it is most designed to help.

Responding to Sander seems to have been something of an academic specialty unto itself. Among the direct responses are Beverly Moran’s The Case for Black Inferiority? What Must be True if Professor Sander is Right: A Response to A Systemic Analysis of Affirmative Action in American Law Schools, Johnson and Onwuachi-Willig’s Cry Me A River: The Limits of ‘A Systemic Analysis of Affirmative Action in American Law Schools’, Charles E. Daye’s A Personal Perspective – Ten Reasons to Reject ‘A Systemic Analysis of Affirmative Action in American Law, David B. Wilkins’, A Systematic Response to Systemic Disadvantage: A Response to Sander, and finally, Chambers, Clydesdale, Kidder and Lempert’s The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander’s Study, which occasioned this response from Sander, A Reply to the Critics, to which they responded with Affirmative Action in American Law Schools: A Critical Response to Richard Sander’s – A Reply to Critics.

Commission on Civil Rights Report

Via Amir Efrati’s recent Wall Street Journal article Is Affirmative Action at Law School Actually Hurting Minorities? I discovered that The United States Commission on Civil Rights has just released a Briefing Report entitled Affirmative Action in American Law Schools (.pdf). In it both Prof. Sander and Prof. Lempert contribute the results of their most recent research to the discussion, providing an empirical backdrop for a discussion on whether the ABA can mandate the level of commitment to affirmative action among the constituent schools.

The discussion deals at length with the “mismatch theory” proposed by Sander, in which law schools admitting minority students to programs for which they are not academically prepared actually harm them because the job market is more responsive to that particular student’s grades than that it is to the academic prestige of the institution from which they graduate. I’ll let their arguments on the data speak for themselves, but the broader criticism Sander makes is a good one. If affirmative action by schools consists solely of lower admissions standards, there is a potential for disservice. Law schools are by nature ‘sink or swim’ environments. Whether or not a school is truly interested in correcting the effects of past racial discrimination or meeting a quota might be found in the efforts it makes to promote competitiveness in their affirmative action admits post-admission.

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