Cry Me a River: The Limits of 'a Systemic Analysis of Affirmative Action in American Law Schools'

Abstract

This article is a response to Richard H. Sander's article, A Systemic Analysis of Affirmative Action in American Law Schools, which recently appeared in the Stanford Law Review. In his article, Professor Sander argues that affirmative action in law schools harms, rather than helps, African American law students by setting up African American students, who are out-matched by their white peers in terms of undergraduate grade point average and LSAT scores, for failure. Specifically, Professor Sander contends that because affirmative action enables African Americans to attend law schools for which they are unqualified, they are more likely to perform poorly in law school, drop out, fail the bar examination, and never become lawyers.

In this brief response, we contend that Professor Sander's analysis is misdirected and narrow, and we highlight two shortcomings of the article. First, noting other studies that maintain that Professor Sander's empirical work does not support his conclusions about the effects of affirmative action on African American law students, we raise the important issue of maintaining racial diversity in law schools, a key point relevant to affirmative action, which Professor Sander ignores throughout his article. In so doing, we examine Professor Sander's failure to offer alternatives of what policies might more fully diversify law schools and ensure educational opportunity for all. We also explore Professor Sander's charges of a lack of candor by law schools about the salience of race in admissions decisions, charges that not only mischaracterize the admission process at many law schools but also fail to encourage an open and honest dialogue about the problem of minority underrepresentation in law schools. Second, we critically examine Professor Sander's assumption that relatively lower undergraduate GPAs and LSAT scores explain why African-American students fail to fare as well academically in law school as their white peers. In so doing, we highlight Professor Sander's neglect of other significant factors likely to correlate with poor performance, in particular the well-documented hostile environment faced by African American, and other minority, students in law schools and the manner in which such an environment may adversely affect their academic performance. Finally, this article explores steps that law schools may take to improve the experiences of African American and other minority students within their corridors.