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New
Issue of 'Stanford Law Review'
Will Rebut a Critic of Affirmative Action
By
KATHERINE S. MANGAN
Chronicle of Higher Education
April 22, 2005
http://chronicle.com/weekly/v51/i33/33a02301.htm
(Subscription required)
COURTING
CONTROVERSY: Rarely does a student-run journal generate the sort
of nervous anticipation and borderline paranoia created by the
May edition of the Stanford Law Review.
Manuscripts
for the forthcoming issue are flying back and forth among legal
scholars, many of whom are rebutting a salvo launched at affirmative
action in the November 2004 issue of the journal.
In
that issue, Richard H. Sander, a law professor at the University
of California at Los Angeles, published a study concluding that
affirmative-action beneficiaries are more likely than their peers
to receive poor grades, flunk out, and fail the bar (The Chronicle,
November 12). He argued that such students are being "mismatched"
with top law schools, where they are in over their heads.
Critics
of that premise get their turn in the new issue, along with a
response from Mr. Sander. But he has tried, unsuccessfully, to
squelch public discussion about the occasionally testy exchanges
until next month, when the articles are published. He has asked
his critics not to provide advance copies of their articles to
The Chronicle, explaining to a Chronicle reporter
that there's "an emerging meeting of minds" on several
issues, and that a public airing of their views could lock people
into adversarial positions.
But
given the tenor of the 200-plus pages of commentary obtained by
The Chronicle, sparks will continue to fly both in private
and in public. Anticipating such a reaction, the law-review editors
have posted a question-and-answer section on the review's Web
site (http://lawreview.stanford.edu)
about the study and the critiques of it, saying they hope the
articles will "inspire dialogue rather than division."
The
arguments against Mr. Sander's paper range broadly. David B. Wilkins,
a professor at Harvard Law School, writes that affirmative action
has helped
transform "a once exclusionary and insular profession into
one that is at least tolerably diverse," and that the admissions
policy has helped overcome
disadvantages that black lawyers face in the job market. He argues
that Mr. Sander has ignored factors that might help explain racial
achievement gaps,
including the possibility that some law professors expect less
of black students.
"By
focusing only on the most negative aspects of the current reality
-- i.e., that many black students receive low grades and have
difficulty passing the bar -- without giving at least equal time
to the positive news that most black lawyers are leading successful
and productive careers," Mr. Wilkins writes, "Sander's
proposed disclosure is destined to exacerbate the extent to which
black law students currently feel alienated and disengaged."
***
Michele
Landis Dauber, an associate professor at Stanford Law School,
argues that the staff of her law school's student-run law review
doesn't have the expertise to realize that Mr. Sander's study
was filled with errors and unsubstantiated conclusions.
"Stanford's
name is being tied up with a piece of crap that never should have
been published and has no merit of any sort," she said in
an interview. "The
publication of this article is a clarion call for law professors
to get their houses in order and institute a system of peer review"
in legal publishing, she said.
In
her article, Ms. Dauber observes that the law-review piece "created
unjustified doubt in the minds of black law students about their
abilities" and
"doubt in the minds of politicians about whether what they
are doing is really harming those they wanted to help." The
article also raises doubts, she adds, among legal educators about
whether they should support
affirmative action.
Another
critique is offered by a four-person team: William C. Kidder,
a researcher at the Equal Justice Society, a San Francisco-based
advocacy group; David L. Chambers, an emeritus professor of law
at the University of Michigan at Ann Arbor; Richard O. Lempert,
a law professor at Michigan; and Timothy T. Clydesdale, an associate
professor of sociology at the
College of New Jersey.
Ending
affirmative action, they say, would cut the number of black law
students -- especially at the most prestigious schools -- and
those who remained would feel conspicuous and isolated. It would
also reduce the number of black lawyers produced annually by 30
percent to 40 percent, rather than increasing the number, as Mr.
Sander argued. The critique further
predicts that with fewer black students attending the most prestigious
schools, there would be fewer black lawyers to become law professors,
law-firm partners, and judges.
The
May law review's final article, written by Ian Ayres, a professor
at Yale Law School, and Richard Brooks, an associate professor
of law at Yale, does agree with Mr. Sander that "the average
black law student's grades are jaw-droppingly low." They
acknowledge that "attending law school is a very risky proposition
for many black law students," and that this is a problem
that educators cannot afford to ignore.
If
Mr. Sander had simply pointed out those disparities, Mr. Ayres
and Mr. Brooks argue, his study never would have created a furor.
What they vigorously dispute is his assertion that affirmative
action is largely to blame for the problems, and that ending those
policies would increase the number of black lawyers. Their study
tentatively concludes that the opposite would occur -- ending
affirmative action would result in fewer black lawyers.
Mr.
Sander's response to his critics is that their complaints are
"surprisingly toothless." Furthermore, he says, none
of the authors have offered a better
explanation for the achievement gaps, and none have offered a
solution. To judge by the arguments to be published next month,
a meeting of the minds on affirmative action in America's law
schools is a long way off.
http://chronicle.com
Section: Research & Publishing
Volume 51, Issue 33, Page A23
Copyright
© 2004 by The Chronicle of Higher Education
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