A Systemic Analysis of Affirmative Action in American Law Schools

By Sander, Richard H. | Stanford Law Review, November 2004 | Go to article overview

A Systemic Analysis of Affirmative Action in American Law Schools


Sander, Richard H., Stanford Law Review


INTRODUCTION
I. A NOTE ON ORIGINS
II. DEFINING THE ROLE OF RACE IN LAW SCHOOL ADMISSIONS
III. THE CASCADE EFFECT OF RACIAL PREFERENCES
IV. AN ASIDE ON THE VALUE OF ACADEMIC INDICES
V. EFFECTS OF AFFIRMATIVE ACTION ON ACADEMIC PERFORMANCE IN LAW
SCHOOL
VI. EFFECTS OF AFFIRMATIVE ACTION ON PASSING THE BAR
VII. THE JOB MARKET
VIII. THE EFFECTS OF DROPPING OR MODIFYING RACIAL PREFERENCES
CONCLUSION

INTRODUCTION

For the past thirty-five years, American higher education has been engaged in a massive social experiment: to determine whether the use of racial preferences in college and graduate school admissions could speed the process of fully integrating American society. Since Bakke, (1) universities have often tended to justify affirmative action for its contributions to diverse classrooms and campuses. But the overriding justification for affirmative action has always been its impact on minorities. Few of us would enthusiastically support preferential admission policies if we did not believe they played a powerful, irreplaceable role in giving nonwhites in America access to higher education, entree to the national elite, and a chance of correcting historic underrepresentations in the leading professions.

Yet over the years of this extraordinary, controversial effort, there has never been a comprehensive attempt to assess the relative costs and benefits of racial preferences in any field of higher education. The most ambitious efforts have been works like The Shape of the River and The River Runs Through Law School. (2) These have provided valuable evidence that the beneficiaries of affirmative action at the most elite universities tend, by and large, to go on to the kinds of successful careers pursued by their classmates. This is helpful, but it is only a tiny part of what we need to know if we are to assess affirmative action as a policy in toto. What would have happened to minorities receiving racial preferences had the preferences not existed? How much do the preferences affect what schools students attend, how much they learn, and what types of jobs and opportunities they have when they graduate? Under what circumstances are preferential policies most likely to help, or harm, their intended beneficiaries? And how do these preferences play out across the entire spectrum of education, from the most elite institutions to the local night schools?

These are the sorts of questions that should be at the heart of the affirmative action debate. Remarkably, they are rarely asked and even more rarely answered, even in part. They are admittedly hard questions, and we can never conduct the ideal experiment of rerunning history over the past several decades--without preferential policies--to observe the differences. But we can come much closer than we have to meaningful answers. The purpose of this Article is to pursue these questions within a single realm of the academy: legal education in the United States. Several remarkable data sets on law schools and the early careers of young lawyers have recently emerged. Together, they make it possible to observe and measure the actual workings of affirmative action to an unprecedented degree. Here we begin the application of that data to the question of how much affirmative action across American law schools helps and hurts blacks seeking to become lawyers. The results in this Article are not intended to be definitive; they are intended to take us several steps in a new direction.

My goal in this Article is to be systemic--that is, to analyze legal education as a complete, interlocking system. As we will see, the admissions policies of law schools, as within any discipline, are necessarily interdependent. Individual schools have less freedom of action than an outsider might assume. Moreover, one cannot understand the consequences of racial preferences without understanding the relative trade-offs for students attending schools in different tiers of the education system. …

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