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Monday, December 20, 2004

The Challenge has Been Joined 

How Appealing points to this op-ed by Law Professor Goodwin Liu challenging Professor Richard Sander's latest article on whether affirmative action actually decreases that number of black lawyers that would graduate and pass the bar. A summary of Professor Sander's article was posted on the Volokh Conspiracy some time ago, and can be accessed here, here, here, and here.

I do not know enough about statistics to make any judgments about Sander's data, but his critics would be more persuasive than to come at him with assertions that are circular, self-contradictory, and that are clearly ideological.

Professor Liu begins with this assertion:
Sander's conclusion flies in the face of the most basic tenet of economics: that people act rationally to maximize their self-interest. Affirmative action has been with us for 30 years. . . . If the costs of affirmative action outweigh the benefits, then surely the "victims" would know. Over time, they would see that the best black students at second-tier law schools (and some top students do go to second-tier schools for geographic, financial and other reasons) far outperform their peers at more elite schools and have a much easier time passing the bar.
The answer seems easy: human beings maximize self-interest, but can only do so when they are fully informed. Part of what makes Sander's study interesting is that no one seems to have done anything like this before. Think about it: when we hear about affirmative action, it is always in terms of admissions, not metriculation. If this is so, as I believe it is, then where would the information about affirmative action's effect on black law school success rates come from? How would thousands of annecdotal accounts be aggregated to benefit any particular potential applicant's decision? Are affirmative action programs even subject to market pressures (it seems entirely political to me)? There are many ways to think about why an applicant's decision may not be fully informed, and thus prevent a decision that maximizes self-interest.

But on a simpler level, this argument is entirely circular--affirmative action is still around, so it must be successful at producing black lawyers. Hell, he might as well have said "Hey dummies, its called affirmative action, so it must be good!"

I don't see this as a very strong point, so luckily Liu abandons it in his next point:
Sander takes an unrealistic view of how many blacks would still attend law school if affirmative action were to disappear. . . . As his study concedes, ending affirmative action would cause black enrollment at the most elite law schools to drop from 7% or 8% to 1% or 2%. A top student faced with being one of only a handful of blacks in law school might reasonably decide that other career paths are less isolating and more promising. Similarly, other options might appear more attractive to an applicant who, without affirmative action, would have to attend a 40th-ranked school instead of a 15th-ranked school.
This argument seems to rest on the assumption that, contrary to his earlier assertion, black applicants will behave irrationally if affirmative action were ended. Instead of trying to get accepted, do well, graduate, and pass the bar (i.e., become lawyers), black applicants would instead be so deterred by the lack of black law students at top schools (Liu mentions nothing about lower tier schools) and the discouragement of suddenly loosing a benefit. Of course these arguments have merit in their proper context; schools shouldn't turn a blind eye to social forces beyond the academic sphere. But this point contradicts the earlier assertion about maximizing self-interest: it assumes that blacks will abandon a career path designed to help them succeed (i.e., situate them with whites with similar test scores and academic backgrounds) without ever seeing its benefits, and condems the proposal. It also assumes that attending a school where students have similar academic backgrounds, rather than artificially being placed in a higher ranked school, is a deterrant, contrary to what a rational person would believe.

In short, Liu predicts a huge PR backlash against law schools that discontinue affirmative action, producing far fewer applicants than would otherwise occur, and so condemns the whole idea. Politics like this are certainly something to think about, but so far his first two assumptions are based on competing premeses, and he waffles between which theory supports the end he wants to reach.

It is especially disingenuous to assert that this irrational drop in applicants (and acceptances) is too onerous to overcome any benfit when a large portion of that drop would be due to blind acceptance of affirmative action as the sole program that could possibly benefit black law student success. The failure of ending affirmative action will thus become a self-fulfilling prophesy. This argument has nothing to do with whether ending affirmative action could produce more black lawyers or not, but rather that affirmative action proponents will prevent it from doing so through propaganda.

Professor Liu's final point is more reasonable:
Copious research, which Sander does not confront, shows that the achievement gap at selective universities is because of differences not only in entering credentials but also in the university experience itself. . . . fear of doing badly in school and thereby confirming racial stereotypes generates anxiety among black students that undermines academic performance. In addition, for many minority students, the lack of minority faculty heightens feelings of isolation and makes it difficult to find close mentors. And despite much progress, minority students still face discrimination on campus, both subtle and overt.
It is important to remember that there may be other factors to consider when diagnosing why black students systematically perform worse than whites in the same school. The goal is to have everyone succeed. That said, Liu sets up the typical straw man against Sander's findings--that affirmative action is a zero-sum game (which I have indulged up until now)--and proceeds to use evidence of other factors as an argument that Sander's findings are incomplete.

The entire point of Professor Sander's article is that we should look at affirmative action and the academic costs of putting students in settings they are not prepared for. Affirmative action itself may be one of the problems, exacerbated by other factors described by Professor Liu. Professor Sander is challenging affirmative action orthodoxy, and encourages discussion. So far, the only things I've seen in response are snide remarks about how he ignores contrary data, has an agenday, and makes unreasonable assumptions. Critics, like Professor Liu, would do well test their own assertions for these systematic errors.

In addition, Sander does not advocate ending affirmative action completely. He, in fact, proposes what he calls a "4 percent solution": retain affirmative action in top schools to attain a 4 percent black student body (which would enable qualified black students to obtain prestige positions, clerkships, etc) that would offset some of the problems of isolation and achieve other diversity benefits, but would push more black students into lower-tier schools to increase their performance and help bar passage rates. Of course, if his critics acknowledged this, they wouldn't get to make their high sounding attacks against his findings.

Professor Sander's own words on the matter are most revealing, and leave me no doubt that he is genuinely working toward bettering education for everyone, which I don't think can be said for all of his critics: "My hope is that, by developing some rough consensus on how to model the systemic effects of affirmative action, we can have a much richer dialog and can identify and test possible compromises, like the 4% solution, that break the ideological logjam."

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