Many will remember that in early 2003, Williams joined 27 other private, highly selective residential colleges in filing an amicus brief with the Supreme Court supporting the University of Michigan’s position in two highly publicized affirmative action cases (Gratz v. Bollinger and Grutter v. Bollinger, which deal with the University’s affirmative action admissions policies in the undergraduate and law school, respectively).


As the 28 schools wrote:

Amici have a direct interest in the outcome of these
cases because the Court has apparently considered Title VI
of the Civil Rights Act of 1964 to be coextensive with the
Fourteenth Amendment. Reversal of the judgment in
Grutter (the undergraduate case is not really comparable),
and any ruling that would restrict amici’s effort to assemble
classes that are diverse in multitudinous respects by the
means they have thought best, would directly harm amici,
the education they provide, and their broader mission to
benefit the larger society.

Because the University of Michigan law school was of sufficiently small size to allow individual consideration of each application, the 28 amici argued it was the more comparable of the two cases to the admissions process at their schools.

This week, the Stanford Law Review is publishing UCLA professor Richard Sander’s article “A Systematic Analysis of Affirmative Action in American Law Schools.” The article has been highly controversial for the past several months since the Chronicle of Higher Education did a story on it. It is particularly notable for addressing affirmative action from a different angle than others have. That is, it does not consider the familiar question of whether it is unjust to give admissions to somebody whom on paper might appear to be less qualified than other applicants. Rather, Sander argues that affirmative action is harmful to blacks interested in pursuing a career in law. As he says, “the annual production of new black lawyers would probably increase if racial preference were abolished tomorrow” (emphasis original).

Here is Sander’s summary of his findings:

Despite the prevalence of affirmative action policies in higher education, scholars are only beginning to study seriously the relative costs and benefits of racial preferences in admissions. The recent development of several large, longitudinal datasets on law students and lawyers has made it possible to ask more ambitious questions about the operation and effects of these policies. A Systemic Analysis asks a number of these questions, and reports surprising answers. (This article focuses only on blacks and whites.)

–First, the levels of racial preferences at American law schools are very large and remarkably homogenous across institutions, operating in ways that are generally hard to distinguish from racially segregated admissions.

–Second, black students admitted through preferences generally have quite low grades in law school – not because of any racial characteristic, but because the preferences themselves put them at an enormous academic disadvantage. The median black student starting law school in 1991 received first-year grades comparable to a white student at the 7th or 8th percentile.

–Third, these low grades substantially handicap black students in their efforts to complete law school and pass the bar. Only 45% of black law students in the 1991 cohort completed law school and passed the bar on their first attempt; in the absence of preferential admissions, I estimate that this rate would rise to 74%.

–Fourth, the job market benefits of attending an elite school have been substantially overrated; regression analysis of job market data strongly suggests that most black lawyers entering the job market would have higher earnings in the absence of preferential admissions, because better grades would generally trump the costs in prestige.

–Fifth, it is far from clear that racial preferences actually cause the legal education system to produce a larger number of black lawyers. Careful analysis indicates that 86% of blacks currently enrolled in law schools would have been admitted to some law school under race-blind policies, and the much lower attrition rates that would prevail in a race-blind regime would probably produce larger cohorts of black lawyers than the current system of preferences produces.

In the case of blacks, at least, the objective costs of preferential admissions appear to substantially outweigh the benefits. The basic theory driving many of these findings is known as the “academic mismatch” mechanism; attending an advanced school where one’s credentials are far below those of one’s peers has a variety of negative effects on learning, motivation, and goals that harm the beneficiary of the preference. Over the past several years, a wide range of scholars have documented the operation of the mismatch mechanism in a number of fields of higher education.

These findings have stoked substantial controversy, and this website seeks to aid readers interested in plumbing this work further. One set of links provides a description of the major types of data used in the study; another set of links leads to a “downloading” page, where users can actually download manuals and datasets that can be analyzed by most statistical programs. We will be adding links to critiques of the article, responses to those critiques, and supplemental analyses on points not fully elaborated in the article.

There are a number of reasons this article should be taken seriously by policy makers in the field of higher education. First, Richard Sander is not some crank you can just write off. He is a professor at UCLA and his article is based on some serious econometric analysis. Second, the Stanford Law Review is not a supermarket rag that can be dismissed out of hand. Third, the list of people who presumably policed the article includes some serious and respectable academics from across the ideological spectrum:

I received very helpful, detailed comments on early drafts from Alison Anderson, Bernard Black, Evan Caminker, David Chambers, Roger Clegg, William Henderson, Richard Kahlenberg, Lewis Kornhauser, James Lindgren, Robert Nelson, James Sterba, Stephan Thernstrom, Jon Varat, Eugene Volokh, David Wilkins, and Doug Williams.

Finally, if we take him at his word, Sander is a bit of a liberal mugged by reality on the issue of affirmative action:

No writer can come to the subject of affirmative action without any biases, so let me disclose my own peculiar mix. I am white and I grew up in the conservative rural Midwest. But much of my adult career has revolved around issues of racial justice. Immediately after college, I worked as a community organizer on Chicago’s South Side. As a graduate student, I studied housing segregation and concluded that selective race-conscious strategies were critical, in most cities, to breaking up patterns of housing resegregation. In the 1990s, I cofounded a civil rights group that evolved into the principal enforcer (through litigation) of fair housing rights in Southern California. My son is biracial, part black and part white, and so the question 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. As a young member of the UCLA School of Law faculty, I was deeply impressed by the remarkable diversity and sense of community the school fostered, and one of my first research efforts was an extensive and sympathetic analysis of academic support as a method of helping the beneficiaries of affirmative action succeed in law school.

Williams College is obviously not completely comprable to law schools, but as the school argued in its amicus brief, there are substantial similarities.

It seems clear to me that those involved in policy making at institutions of higher education have a strong interest in pursuing Sander’s research. Importantly, somebody should apply a similar analysis to the effect of affirmative action in undergraduate schools. This is a substantially more difficult task as Sander was able to look at whether a law student passed the bar (“blacks are nearly six times as likely as whites to not pass state bar exams after multiple attempts.”) as an easy metric by which to judge whether students were helped or hurt by affirmative action. The Williams Project on the Economics of Higher Education is a perfect candidate, however, to try and do similar analysis at the undergraduate level.

It should be noted that Williams’ claim in the amicus is that diversity is necessary for the school to achieve its educational mission. The amicus brief states:

There are sound educational reasons (and others as well) why higher education institutions of all sorts – not only those subject to legislative direction, but also private, highly selective ones – have virtually without exception concluded that many different kinds of diversity, including racial diversity, best create the circumstances for the learning required in the 21st century, and that the schools should therefore try to obtain that diversity.

Sander’s conclusions do not impact this objective. The question that naturally follows is, if it were true that affirmative action hurts black students (or all minority students, once somebody does that regression) would Williams continue to pursue affirmative action policies?

Finally, I am quite certain that Sander’s article will prompt a large number of articles in response. That is great. Personally, I will be more excited to read articles that reach different conclusions to Sander while remaining highly guided by the data rather than by social science. You know you’re right when the data is on your side. Sander’s article makes a persuasive case that the data shows affirmative action hurts black people who want to become lawyers. Let’s see if anybody shows otherwise.

Meanwhile, two years ago when the Record asked Assistant to the President for Affirmative Action Nancy McIntire about the necessity of current [faculty] hiring practices [which take into account race and gender], McIntire said, “it’s time to take a look at that,” adding, “I suspect the Committee on Academic Policy (CAP), dean of the faculty and I will begin that discussion this year.

I asked her last year (at the one-year anniversary of that statement for an update on the discussion she anticipated having and received no response. It would be great if the Record followed up on this.

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