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Affirmative Action and Military Recruiting Spur Heated
Debate at Law-School Meeting

By KATHERINE S. MANGAN
CHRONICLE OF HIGHER EDUCATION
Monday, January 10, 2005
http://chronicle.com/daily/2005/01/2005011001n.htm
(Registration required) 

EJS NOTE: Richard O. Lempert, a law professor at the University
of Michigan at Ann Arbor, is mentioned in this article. EJS' Bill Kidder
is one of the four authors, including Lempert, of a paper challenging
the Sander study.

San Francisco -- Questions about affirmative action and military
recruiting took center stage last week here at the
annual meeting of the Association of American Law
Schools. 

One of the most contentious debates involved a study
asserting that racial preferences hurt black students
by getting them admitted to law schools where they are
more likely to struggle, to drop out, or to graduate
but fail their states' bar exams. 

An overflow crowd of about 170 legal educators --
dozens of them black -- packed into a room to hear
Richard H. Sander, a law professor at the University
of California at Los Angeles, present his findings,
which are scheduled to be published this week in the
Stanford Law Review (The Chronicle, November 11,
2004). As the growing crowd spilled out into the
hallway, conference organizers ushered everyone into a
larger room. 

Mr. Sander argued there that law schools should take a
closer look at whether affirmative action is working.
At the very least, he said, "they ought to be more
honest with students about the effect of preferences
and students' chances of passing the bar." 

Marta Tienda, a professor of demographic studies at
Princeton University's Woodrow Wilson School of Public
and International Affairs, vigorously disputed Mr.
Sander's methodology, and argued that he had not
proved a causal link between black students' lower
grades on enrollment and their subsequent difficulties
graduating and passing the bar. 

"Is this the kind of science upon which we want to
predicate public policy?" she challenged. She said her
own research on undergraduates indicates that minority
students who are admitted to prestigious colleges are
actually more likely to graduate. "When you raise the
bar," she said, "they rise to the occasion." 

Richard O. Lempert, a law professor at the University
of Michigan at Ann Arbor who is one of four authors of
a paper challenging the Sander study, called it
"effective rhetoric but poor science." 

"If I believed all of Rick's results, I would change
my position on affirmative action," he said. "Who
wants to send more blacks to law school to have them
get poor grades or fail the bar?" 

He argued that while it is indisputable and troubling
that black students who enter law school are less
likely to graduate and more likely to fail the bar,
that pattern does not result from affirmative action.
Financial difficulties and other circumstances may
also be significant factors. 

Reaction to the presentation was mixed. One listener
thanked Mr. Sander for "having the guts to get up here
and bring these discussions out in the open." Some who
came to the presentation irate about the controversial
study found it hard to direct vitriol at the
soft-spoken Mr. Sander, a self-described liberal with
a biracial son and a history of working on fair
housing and other issues. 

Others had no trouble tearing into him. Vernellia R.
Randall, a professor of law at the University of
Dayton, said she found his conclusions patronizing. 

"It's all about statistics -- it's not about people,"
said Ms. Randall, who is black. "How does he know
what's bad for me if he's never even talked to me?" 

She said that while serving on her law school's
admissions committee, she objected to the practice of
"presumptively denying" admission to applicants on the
basis of their Law School Admission Test scores, even
if they had stellar undergraduate records. She said a
result of the practice has been a significant decline
in the number of minority students admitted to her
institution. 

Another topic that drew big crowds and heated
discussion was the recent court decision upholding
several law schools' bans on military recruiters. Law
professors who have challenged the military in court
because they say it discriminates against gay and
lesbian people urged their colleagues to continue
organizing protests and teach-ins on the subject over
the next few months. 

Even though the U.S. Court of Appeals for the Third
Circuit ruled in the professors' favor, they expect
the Bush administration to appeal the decision, and
the court has not yet issued an injunction that would
protect law schools that ban military recruiters. The
Solomon Amendment, a federal law that was overturned
by the court, had allowed the government to withhold
certain federal grants from schools that banned
military recruiters. 

So far, panelists at the session said, Harvard is the
only law school that has responded to the court ruling
by pulling up the welcome mat to military recruiters.