Law professor’s affirmative action findings prompt
storm of criticism

By Diane Curtis

Critiques and counter-critiques. Buzzing blogs. A first for the Stanford Law Review. A study by UCLA law professor Richard Sander concluding that preferential law school admissions do not ultimately benefit African-Americans has created an uproar among scholars and civil rights advocates across the country.

A liberal and strong proponent of the goals of affirmative action, Sander wrote in the January issue of the Stanford Law Review that statistical analysis showed that affirmative action at law schools produced fewer black lawyers than would be the case without affirmative action.  Reaction was swift, ferocious and voluminous.

“Sander’s proposals to abandon affirmative action would drain the most competitive law schools of African-American students, resegregate the profession and shut down the pipeline to clerkships, teaching jobs, top-tiered law practice, judicial appointments and influence positions in business and politics,” Wade Henderson, executive director of the Leadership Conference on Civil Rights, was quoted as saying in a story on civilrights.org.

“The argument that affirmative action does more harm to its intended beneficiaries than good is tired, simplistic and divisive,” wrote David M. Forman, attorney for the Hawaii Civil Rights Commission.

Because of the outcry and interest generated by Sander’s paper, which is titled “A Systemic Analysis of Affirmative Action in American Law Schools,” the Stanford Law Review created a special Frequently Asked Questions page on its Web site to try to respond to the flood of questions pouring into its office.

“What is the Stanford Law Review’s position on this article?” is one question asked and answered on the Web site: “As with any other article we publish, the opinions expressed are those of the author only,” the FAQ states. “We take no position on the merits of Professor Sander’s policy stance on affirmative action, or on the conclusions his article reaches; we are simply committed to providing a neutral forum for the publication of significant, quality articles. We of course understand that affirmative action is a highly sensitive topic that affects the Stanford Law School community of which we are members. We believe that open and robust debate is the hallmark of an academic institution such as Stanford Law School. Thus, we hope that this article will inspire dialogue, rather than division, within our community.”

In a phone interview, Stanford Law Review President Eric Feigin said he believes such an FAQ page is unprecedented. He said the Law Review had received “more reaction than most of the pieces we publish    . . . by quite a bit.” The Review plans to publish four critiques of Sander’s work in May.

One of those — by Richard Lempert and David Chambers of the University of Michigan, Timothy Clydesdale of The College of New Jersey and William Kidder of the Equal Justice Society — challenges the assumptions and statistics in Sander’s article.

Sander already has up on his own Web site a critique of the critique by Lempert et al. “I was deeply disappointed by the tone and approach of their response to my article,” Sander wrote. “It seemed designed not to advance intellectual inquiry but rather to stop it, by assuring the authors’ intended readers (law professors, law students and journalists) that my empirical findings are just more of the same smoke and shadow, and that it is safe to sleep through the emerging debate.”

William Henderson, associate professor of law at Indiana University, said he observed that “to a certain extent, law professors and others involved in legal academia “quickly closed ranks and didn’t want to believe what Rick put forward. For a time, the academy was in denial.”

What is needed now, he said, is further empirical evidence supporting or disputing Sander’s “mismatch” conclusion, which holds that law students accepted to a law school where other students are far ahead in law test scores and grades are going to be less likely to pass the bar exam.

“I would like to see a different way to test the same data,” said Henderson, who had an online conversation with Sander on the Legal Affairs Debate Club. Right now, he says, the data seems to affirm Henderson’s conclusion. If that is the case, he said, “then we have to figure out what we do about it.”