Debunking the debunker of affirmative action.

The law, lawyers, and the court.
April 29 2005 11:25 AM

Sanding Down Sander

The debunker of affirmative action gets debunked.

Last winter, UCLA law professor Richard Sander was in demand as the debunker of affirmative action after publishing a Stanford Law Review article that said race-based preferences in law-school admissions reduce the number of black law students who pass the bar and become lawyers. Sander's more-harm-than-good claim landed him lots of press coverage and guest spots on NPR's Morning Edition and Fox's Hannity & Colmes. At that point, few statisticians had scrutinized Sander's results—like most law reviews, Stanford's isn't peer-reviewed—and his critics were pretty easy to stuff. "Several people have replicated my study," Sander said on Hannity & Colmes. "And I think it holds up very well."

Except that it doesn't. In May, the law reviews of Stanford and Yale will publish a batch of responses to Sander that destroy his key conclusion that pushing African-Americans into better and tougher schools causes them to fail the bar in droves.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

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On average, black law students get poorer grades than white law students—in their first year, half of them are in the bottom tenth of their classes. They also drop out of law school more often and pass the bar at lower rates. A database of about 27,500 law students from 160 schools collected by the Law School Admissions Council in 1991 shows that 83 percent of whites graduated and passed the bar within five years of entering law school, while only about 58 percent of blacks did.

Everyone in the current fight agrees that those numbers are very bad news. The dispute is over the reasons behind them. Sander argues that, thanks to affirmative action, black students are overmatched by their classmates, who on average enter with better undergraduate grades and higher LSAT scores. Low grades in turn make them less likely to rise to the challenge of passing the bar—and even to become good lawyers. As Sanders put it on Morning Edition, "If you're in the very bottom of your class, you're not getting as good an education as you would if you'd be at the middle of the class in another school."

There's something to be said for this point. Many of us unfondly remember the torment of a too-challenging class. If it happened repeatedly, it could be confidence-shredding. The problem with Sander's analysis, the "mismatch effect," as he calls it, is that it accounts for all the difference in performance between black and white law students. He doesn't account for the roles played by differences in family income or quality of undergraduate education, or for stereotype threat, the negative effect on black performance caused by being viewed through a racial lens, demonstrated by the Stanford psychology professor Claude Steele. In Sander's reductionist account, the struggle of many black students to do well in law school and pass the bar is entirely due to affirmative action for hoisting them into schools they can't hack. Sander even claims to precisely quantify the results. Race-based preferences pull about 14 percent more black students into law school than otherwise would be admitted. But affirmative action causes so many of those students to fail the bar, Sander asserts, that the net gain of eliminating it would be an increase in the number of black lawyers of 7.9 percent.

The forthcoming responses to Sander pounce on several of his moves (which they call causal inferences). To begin with, there is the problem of "post-treatment bias," which means that it's a bad idea to control for a factor that is itself a consequence of the cause you're studying. That no-no is explained by Daniel Ho, a Yale law student with a Harvard Ph.D., in a forthcoming issue of the Yale Law Journal. (Here's Ho's piece; here's my brief summary.) When Ho ran his own tests, he found that attending a more elite school has "no detectable effect" on the rate at which similarly qualified black students pass the bar.

A different attack comes from Ian Ayres and Richard Brooks, who, like Sander, hold Ph.D.s in economics and who are professors at Yale Law School (where I taught a course this spring and last). Ayres and Brooks manipulate the data to eliminate the admissions boost that affirmative action gives black students. They find that eliminating affirmative action reduces the number of black lawyers by close to 12.7 percent, rather than increasing it by Sander's 7.9 percent. Then they throw a second punch. Ideally, the way to test whether affirmative action does more harm than good, using Sander's measures, would be to compare the law-school grades and bar-passage rates of students who went to Harvard and Fordham with students who were admitted to the same schools but chose to attend lower-ranked ones. There are no such data. But Ayres and Brooks do the next best thing—they compare black students who went to their first-choice school, which is presumably more elite, to those who attended a lower-choice school. The entering credentials of the first-choice and lower-choice groups turn out to be quite similar. And so do their bar-passage rates. The wrinkle in the story is that the black students who do the best on the bar exam, relatively speaking, are the ones who attend the top schools and historically black schools like Howard law school in Washington, D.C. Which is ironic, since Howard has long gotten slammed for the problems its students have with the bar, and another reason why this comparison is a useful one.

Sander is vulnerable on other fronts. He assumes that in a world without law-school affirmative action, lots of black students would still choose to study law, even though they'd be reduced on many campuses from 8 percent of the student population to 1 or maybe 2 percent. Assuming that other professional schools continued to admit higher numbers of black students, it's hard to see why many wouldn't begin choosing medicine or business over law, as this paper points out. In a different critique, Harvard law professor David Wilkins worries about thinning the ranks of black students at the most elite schools. They're the ones most likely to become part of well-connected networks, and they are the pool from which the big law firms overwhelmingly draw their black partners. Wilkins also takes a longer view and argues that Sander's concern about the fate of black law students turns out to be misplaced: Five years to 15 years after graduation, they earn significantly more on average than other black college graduates. And Wilkins points out that Sander never questions the utility and value of the bar exam itself—which probably puts him in the minority of those who have taken it, assuming he has. One way to increase the number of black lawyers might be to write a test that relies less on trick multiple-choice questions, or to convince the state bar associations that administer the exam to quit failing more and more would-be lawyers each year, as several have taken to doing. (Fewer new lawyers means less competition.)

What does Sander have to say for himself, once the bloodletting is done? Not much that helps him. In a rebuttal that Stanford also will publish, he wags a finger at Ayres and Brooks, chiding that "this is not their best work or their finest hour." He also compares his work to Galileo's. That's not really the comparison that springs to mind. Instead, I finished reading and felt relieved that Sander came along after the Supreme Court had decided to uphold some forms of affirmative action, in a 2003 suit against the University of Michigan's law school. Maybe affirmative action isn't a great long-term solution to the problem of black underperformance. Improving the kindergarten-on education of black students seems a lot better. But if affirmative action gets cut down, it shouldn't be by the sword of Richard Sander.

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