The Case for Black Inferiority? What Must Be True If Professor Sander is Right: A Response to a Systemic Analysis of Affirmative Action in American Law Schools

Abstract

In A Systemic Analysis of Affirmative Action in American Law Schools, Professor Richard Sander asserts that affirmative action hurts blacks both as a group and as individuals. Professor Sander finds that qualified black students are adversely affected by affirmative action because they are admitted to schools above their capacity where they are matched against more qualified whites. According to Professor Sander, because these minimally qualified blacks are unable to compete with their more qualified peers, they fare poorly in the classroom and on the bar examination. Moreover, unqualified black students are hurt because they are admitted to law schools where they waste valuable time and money discovering that they are unable to graduate or pass the bar. In turn, black people as a whole are harmed by affirmative action because the admission of unqualified blacks and the competition faced by minimally qualified blacks result in black law students suffering from higher dropout and bar failure rates than their white peers. According to Professor Sander, under a race-neutral system, unqualified blacks would never enter law school and qualified blacks would matriculate at the lower tier schools where they belong. The result would be more black law school graduates and higher black bar passage rates, leading to more black lawyers. In other words, affirmative action is responsible for creating fewer black lawyers than a race-neutral system would produce.

Keywords: civil rights, race, feminism