In Grutter v. Bollinger, the Supreme Court upheld some affirmative action programs in legal education as constitutional.1 The wisdom of affirmative action as a policy decision, however, remains highly contested.2 The challenge is to determine how affirmative action policies affect law schools, law students, and the legal profession. Several scholars have provided nuanced descriptions of the effects of affirmative action on students and graduates at specific elite institutions.3 These studies demonstrate that the affirmative action policies at these schools are generally consistent with the stated policy goals of affirmative action. Namely, these studies find that students value diversity in the classroom, that black and white graduates have equally successful careers after law school, and that, in some situations, black graduates give back more to the community than white graduates do.4
Although these studies demonstrate that black law students are highly successful in a variety of dimensions, there are still troubling aspects of black student performance in law school and thereafter. In a recent article in the Stanford Law Review,5 Professor Richard Sander focused on one such datum: Half of black law students are in the bottom tenth of their class.6 Using this datum as evidence of a significant problem in black student achievement, Sander sought to answer empirically how affirmative action as currently practiced affects the number of black law graduates who pass the bar-that is, the number of new black lawyers each year. Based upon his analysis, Sander predicts a 7.9% gain in the number of black lawyers absent affirmative action.7 According to Sander, this counterintuitive result is the product of the "mismatch hypothesis." The mismatch hypothesis posits that, as a result of current affirmative action policy, blacks systematically are admitted to and attend law schools for which they are underqualified. As a result, they disengage from the learning process, and they do not learn as much as they would have if they had the same qualifications as the white students in the class. Sander's analysis does not withstand scrutiny in many ways.8 As I demonstrate in Part I, his claim that affirmative action results in a loss of 169 black lawyers each year is not supported by the data.
Taken out of the volatile context of affirmative action, the mismatch hypothesis is not an unreasonable theory, despite Sander's flawed analysis. Many people, Sander includes, remember instances when they were outmatched and learned little or nothing in a class.9 Sander provides an anecdote about his attempt to take college German at Harvard.10 Lacking a facility with foreign languages, Sander soon found himself adrift, and, as the semester progressed, disengaged from his German class more and more. This anecdote sounds like a typical learning experience of a young student at an elite college: for (perhaps) the first time, the student finds himself outmatched, responds by disengaging from the class, and therefore learns less from the class than he would have from a less ambitious one. Certainly, this is a plausible explanation for Sander's failure to learn German. Returning to the context of race, however, other theories are also plausible. Hostile learning environment, stereotype threat,11 and race-based barriers are among the other logical theories to explain why minority groups do not perform well, even though they may not explain Sander's personal experience. Of course, each of these theories may be at work at the same time-one might be somewhat mismatched, for example, but the problem compounds with discriminatory treatment.
Like Sander, I have a personal anecdote that suggests, at least for me, that these separate theories might coexist. I began college as a physics major. Initially, I did quite well, excelling at introductory and intermediate classes, with my performance based primarily on my mathematics ability. By the time my junior year arrived, however, I hit a wall: I found out that math skills-my real strength-only take one so far in physics; after that point (for me, a potential theory seminar), a real intuition into physics is necessary. …