The law reviews of Stanford and Yale law schools will publish responses to an earlier article published in the Stanford Law Review by Richard Sander claiming that affirmative action in law school admissions reduces the number of black law students who pass the bar and become lawyers, reports Emily Bazelon of Slate.com.
In Sander's reductionist account, the struggle of many black students to do well in law school and pass the bar is entirely due to affirmative action for hoisting them into schools they can't hack. . . .
The forthcoming responses to Sander pounce on several of his moves (which they call causal inferences). To begin with, there is the problem of "post-treatment bias," which means that it's a bad idea to control for a factor that is itself a consequence of the cause you're studying. That no-no is explained by Daniel Ho, a Yale law student with a Harvard Ph.D., in a forthcoming issue of the Yale Law Review. When Ho ran his own tests he found that attending a more elite school has "no detectable effect" on the rate at which similarly qualified black students pass the bar.
A different attack comes from Ian Ayres and Richard Brooks, who, like Sander, hold Ph.D.s in economics and who are professors at Yale Law School . . . . Ayres and Brooks manipulate the data to eliminate the admissions boost that affirmative action gives black students. They find that eliminating affirmative action reduces the number of black lawyers by close to 12.7 percent, rather than increasing it by Sander's 7.9 percent. Then they throw a second punch. Ideally, the way to test whether affirmative action does more harm than good, using Sander's measures, would be to compare the law-school grades and bar-passage rates of students who went to Harvard and Fordham with students who were admitted to the same schools but chose to attend lower-ranked ones. There are no such data. But Ayres and Brooks do the next best thing-they compare black students who went to their first-choice school, which is presumably more elite, to those who attended a lower-choice school. The entering credentials of the first-choice and lower-choice groups turn out to be quite similar. And so do their bar-passage rates. The wrinkle in the story is that the black students who do the best on the bar exam, relatively speaking, are the ones who attend the top schools and historically black schools like Howard law school in Washington, D.C. . . .
Sander is vulnerable on other fronts. He assumes that in a world without law-school affirmative action, lots of black students would still choose to study law, even though they'd be reduced on many campuses from 8 percent of the student population to 1 or maybe 2 percent. Assuming that other professional schools continued to admit higher numbers of black students, it's hard to see why many wouldn't begin choosing medicine or business over law, as this paper points out. In a different critique, Harvard law professor David Wilkins worries about thinning the ranks of black students at the most elite schools. They're the ones most likely to become part of well-connected networks, and they are the pool from which the big law firms overwhelmingly draw their black partners. Wilkins also takes a longer view and argues that Sander's concern about the fate of black law students turns out to be misplaced: Five years to 15 years after graduation, they earn significantly more on average than other black college graduates. And Wilkins points out that Sander never questions the utility and value of the bar exam itself-which probably puts him in the minority of those who have taken it, assuming he has. One way to increase the number of black lawyers might be to write a test that relies less on trick multiple-choice questions, or to convince the state bar associations that administer the exam to quit failing more and more would-be lawyers each year, as several have taken to doing. (Fewer new lawyers means less competition.)
What does Sander have to say for himself, once the bloodletting is done? Not much that helps him. In a rebuttal that Stanford also will publish, he wags a finger at Ayres and Brooks, chiding that "this is not their best work or their finest hour." He also compares his work to Galileo's. That's not really the comparison that springs to mind. . . . [I]f affirmative action gets cut down, it shouldn't be by the sword of Richard Sander.