Review by Tim Fay
Pretend for a moment that this discussion isn't about racial preferences. Then ask
yourself the following straightforward question:
QUESTION: What happens when
elite, highly competitive, academically rigorous law schools for some strange reason
recruit and admit students with below-average academic records from less competitive
colleges which have less academically rigorous curricula than the admitting law school?
LOGICAL ANSWER: The below-average
admittees fail to graduate law school at a higher rate than admittees with stronger
academic backgrounds. Of the under-performers who do graduate, they graduate nearer
the bottom of their class much more often than admittees who had superior undergraduate
academic credentials. Finally, the law school underperformers tend to graduate near
the bottom of their class and tend to fail the bar exam at a much higher rate than
students whose academic abilities more closely match the demands of the law school.
One would not expect any student to do well under such circumstances regardless of their
race, ethnicity or national origin.
So why do racial quota advocates, er, "advocates of racially sensitive law school
admission polices", insist upon sending academically ill-prepared minorities to elite
law schools whose rigorous academic standards virtually ensure a high failure rate?
The "why" cannot be easily explained except perhaps as a bad theory that has
been implemented as social policy with little or no proof that it works.
But a recent landmark study of law school admissions proves that racial preference
policies (sometimes referred to as "affirmative action" by supporters, and
equally often referred to as "racial quotas" by detractors) actually harm
black students' chances of success in the law profession.
The author of this groundbreaking study is Professor Richard H. Sander of the UCLA law
school. The exclusive focus of his study is on the negative effect of racial preferences
in law school admissions on black students' performance in law school. In the future
he plans to conduct similar studies pertaining to the performance of other minority
Sander's study is titled "A Systemic Analysis of Affirmative Action in
American Law Schools".
Sander's study shows that racial preferences in law school admissions result in a
counterproductive mismatch between the academic abilities of black beneficiaries of racial
preferences and the law schools to which these students are admitted under
"affirmative action". According to Sander's research, this mismatch
demonstrably results in a much higher failure rate than would otherwise be the case if the
black students were admitted to law schools which more closely matched the their academic
preparation and abilities.
In other words, black law school students are actually hurt by affirmative action
(racial preference) policies. According to Sander, black law school students would
do much better academically and professionally if racial preferences either did not play a
role in their admission to law schools, or played a significantly reduced role.
But before the Congressional Black Caucus, Jesse Jackson, the NAACP, Gary Orfield, the
so-called Harvard Civil Rights Project, and all the other usual suspects get their panties
in a twist about this, the reader should know about Professor Sander's background.
Professor Richard H. Sander is a lifelong liberal Democrat (he describes himself as a
"progressive".) He supported John Kerry for president in the 2004
presidential election. Sander is a former VISTA volunteer. He has sired a
biracial child in a previous marriage. He has long been an advocate of hyphenated
"racial justice", and has long been a supporter of race-based affirmative action
and racial preferences. Sander has marched, worked, protested, and fought for
special "remedial" treatment for blacks and other minorities throughout
his entire life.
Professor Sander is a highly respected academic. His credentials within the racial
preferences community are impeccable. He is a tenured professor of law at the
University of California Los Angeles (UCLA), and is director of the Empirical Research
Group at the UCLA law school.
Sander has nonetheless had the intellectual integrity to objectively notice that when
blacks are admitted to law schools based upon their race and with little regard to their
ability to meet the academic demands of the law schools to which they are admitted, they
fail at a much higher rate than if they had been admitted to less academically rigorous
institutions whose intellectual demands much more closely match their actual academic and
In this study Professor Sander does not condemn racial preferences in general. Nor
does he advocate for an end to racial preferences. (Oh, well. No one is
perfect.) He does, however, use statistical evidence to show that black law students
would do significantly better if racial preferences were either not a factor in their
admission to selected law schools or at least carried far less weight in their admission
In a Nov. 5, 2004 article, the Wall Street Journal summarized the results
of Sander's landmark study as follows:
"The study found a stark achievement gap between blacks and whites throughout the
nation's law schools. Close to half of the black law students ended up in the bottom
tenth of their class. African-Americans were more than twice as likely as whites to
drop out -- and more than six times as likely to fail state bar exams after multiple
"Prof. Sander argues that the reason for this outcome stems from a 'mismatch' between
the credentials of the black students and the institutions they attend. Because they
have weaker credentials, he says, the students achieve lower grades. And since
grades are strongly correlated to success on the bar exam, he argues, these students
failed the bar in higher numbers.
"He argues that students who perform at the bottom of their classes at more selective
colleges often are confused by tougher material taught at speeds that challenge
higher-achieving classmates. At less selective colleges, the material tends to be
simpler, so these students can pull into the middle of their class and pick up the
baseline information needed to pass the bar exam. And he says there is a 'cascade
effect' on every tier of law school, from Harvard and Yale down the ranks, ensuring that,
at each level, blacks perform worse and are less likely to become lawyers.
"By the study's tally, 86% of blacks currently admitted to law schools would still
gain admission without preferences. But they would attend less competitive schools,
where they would compile stronger records. The remaining 14% -- 500 to 600 a year -- would
likely drop out or fail the bar."
Last known link (pay site):
Download Sander's Stanford Law
Article -- Updated July
As an academic and a researcher Professor Richard H. Sander is nothing if not almost
tediously thorough. The unpublished draft of Sander's report is 113 pages
long. The FINAL draft (posted 7-09-06) is 117 pages long. While the draft
Stanford Law Review article is subject to further revisions prior to its pending, official
publication, Adversity.Net readers may download the Nov. 1, 2004 rough draft of his
pending Standford Law Review article in Adobe Acrobat format from either of the following
two links, or they may download the FINAL draft of Sander's article:
Do Racial Preferences Limit
Black Lawyers? --
National Journal Monday Dec. 6, 2004 by Stuart Taylor Jr.
"The 35-year-old debate about affirmative action in university admissions has often
focused on whether the supposed benefits to black and Hispanic students justify the costs
to whites and Asians who lose out, and the resulting racial divisions and resentments.
| "Lately, some
critics of racial preferences (including me) have also speculated that many of the
supposed beneficiaries might be better off without preferences. They are so much
less qualified academically than their white and Asian classmates, this argument goes,
that they end up near the bottom of their classes and drop out in disproportionate
"Now comes Richard Sander, a UCLA Law School professor, with the first in-depth
statistical study of how preferences actually affect black law students' academic
performance, passage rates for the bar, and job prospects. His stunning and
copiously documented conclusion: 'Blacks are the victims of law school programs of
affirmative action, not the beneficiaries.'
"One reason is that racial admissions preferences 'significantly worsen blacks'
individual chances of passing the bar by moving them up to schools at which they will
frequently perform badly.' Indeed, says Sander, so debilitating is the effect on the
academic performance of black law students that ending preferences would increase the
number who pass the bar and become lawyers."
Last Known Link: