An unlikely critic says his new study shows that affirmative action hurts
black law students.
By Stuart Silverstein
Los Angeles Times Staff Writer
November 15, 2004
UCLA law professor Richard H. Sander, author of a controversial new study
concluding that affirmative action hurts black law school students, generally
seems an unlikely candidate to challenge a leading liberal cause.
Sander, 48, is a soft-spoken former VISTA volunteer who for years has studied
housing discrimination and championed efforts to fight segregation in Los
Angeles. A self-described "pragmatic progressive" who supported John
Kerry for president, Sander also promoted a local program in the 1990s to help
the working poor win more federal aid.
Yet Sander's latest research, to be published this month in the Stanford Law
Review, already is drawing widespread criticism from liberal backers of
affirmative action and is roiling law schools around the country.
His study asserts that law school affirmative action programs often draw African
Americans to tougher schools where they struggle to keep up, leading many to
earn poor grades, drop out and fail their state bar exams.
"The big picture is that this system of racial preferences is no longer
clearly achieving the goal of expanding the number of black lawyers,"
Sander said in an interview. "There's a very good chance that we're
creating such high attrition rates that we're actually lowering production of
black lawyers, and certainly we are weakening the preparation of the black
lawyers we are producing."
Affirmative action opponents have made similar arguments about racial
preferences in the past, but Sander's research provides new statistics on
academic performance. He reports that, in his national sampling, nearly half of
first-year black students received grades placing them in the bottom tenth of
their classes. In addition, he found that among all students who entered law
school in 1991, 45% of black students graduated and passed the bar exam on their
first try, while 78% of whites did so.
Sander, who now favors scaling back affirmative action, argues that racial
preferences often create an "academic mismatch" that puts black
students into competition with white students with stronger credentials. He
contends that if the same black students went to less selective law schools,
they would earn higher grades, raising their chances of graduating and passing
the bar exam.
Some critics who have read a draft of the paper say Sander is probably
understating the rate at which blacks pass the bar exam. They also argue that
his explanations for black students' lagging performance are based on sweeping,
unproven assumptions, and they say that he fails to recognize affirmative
action's far-reaching benefits.
"If we look at our society today compared to what it was before we had
affirmative action, I think almost everybody would agree it's much better
today," said David Wilkins, a Harvard law professor writing a critique of
Sander's paper. "And the very fact that we had affirmative action is a big
part of why."
At the same time, Sander is widely regarded as a serious, independent-minded
academic. Alison Grey Anderson, a friend who has taught at the UCLA law school
since 1972, said she admires his intellectual integrity. "If he believes
something is true, he's going to say it, and he's really not going to take into
account the political consequences," she said.
Amid the controversy these days, she said, "I wouldn't want to be in his
Sander, director of the Empirical Research Group at the UCLA law school, said
one of his guiding principles is "the idea that policy changes have to be
empirically evaluated before we do them, and that we need to take advantage of
social science so we don't throw away political capital on things that aren't
going to work."
Likewise, Sander said, affirmative action "needs to be subjected to the
kinds of cost-benefit evaluation that we would apply to any social policy."
He said he knew his research would ignite controversy. But Sander, who lives in
Los Feliz with his two children and wife, Caltech astrophysicist Fiona Harrison,
said family issues prodded him to move ahead.
One factor, he said, is the educational future of his 14-year-old son, Robert.
University affirmative action could play a role in Robert's life because his
racial background is mixed: Sander is white and Robert's mother, Sander's first
wife, is black.
Sander's other child, a 19-month-old daughter named Erica, has a terminal
disease. Her illness, Sander said, reminded him of life's fragility and left him
with "a sense of urgency." He said he didn't want to "leave
important things unsaid."
Sander, who grew up in rural Indiana, earned his bachelor's degree at Harvard.
After graduating, he served as a VISTA volunteer with a community organization
in Chicago for a year.
Later, he went to Northwestern University, earning both a doctorate in economics
and a law degree. In 1989, he moved to UCLA as a law professor.
In Los Angeles, Sander served as president of the Fair Housing Congress of
Southern California and helped start a public interest law program at UCLA.
Yet even before his latest study, Sander's research occasionally antagonized
In the 1990s, he was hired by the city of Los Angeles to study a living wage
ordinance to boost pay for employers of city contractors, and he provided an
opinion supporting the measure. But later, when he was retained by employer
groups to study a living wage measure for Santa Monica, he came out on the
opposite side, saying it would cost jobs without helping the families who most
needed it. The difference, he said, was that the Los Angeles costs would be
borne by city government, whereas Santa Monica's proposal would have placed a
high minimum wage directly on businesses.
Sander also stirred controversy when he wrote an op-ed piece for The Times last
year criticizing the UCLA and UC Berkeley law schools, along with the University
of California system, for "back door" programs that sidestep the
state's ban on affirmative action. The column expressed his growing concerns
that affirmative action "allows us to pretend that our racial problems are
simpler than they really are" while avoiding addressing "real
problems," such as poor inner-city schools and urban segregation.
His new Stanford Law Review study includes data from the Law School Admission
Council on 27,000 students who entered 160 U.S. law schools in 1991.
Critics say Sander vastly underestimates the role affirmative action plays in
persuading blacks to go to law school, especially when it means attending a
top-tier school near home.
Partly for that reason, a group including two University of Michigan law
professors who are drafting a response to Sander's paper estimate that
eliminating affirmative action would reduce the number of blacks entering the
legal profession by 25% to 30% annually. Sander, by contrast, estimates an
increase of about 9%.
Critics also contest the notions that affirmative action is the only reason for
poorer law school performance by blacks and that African American students would
earn better grades at less selective schools. They say students admitted into
more challenging schools often learn more, in part because of greater
expectations and resources.
In addition, critics say, the connections made at elite law schools may push up
their earnings more dramatically later in their careers, a possibility that
Sander's study didn't address.
Sander said he hasn't been rattled by the criticism and maintained that it has
become easier to discuss affirmative action thoughtfully since the U.S. Supreme
Court last year upheld the practice in college admissions so long as it is
considered in a "flexible, non-mechanical way."
Sander plans to follow up with studies on Latino and Asian law students and to
investigate how affirmative action at law firms affects black attorneys. He said
he is concerned that blacks at such firms are stigmatized and consequently don't
as often get the experience they need to move up to partner status.
The attention generated by his current paper, Sander said, has been gratifying.
"What you least want is to write articles that just collect dust,"
Sander said. "What you most want to do is to get people to think, and this
is definitely doing that."