Heresy in the Legal Academy

Former VC guest blogger and UCLA law professor Richard Sander is a political liberal who has done some pioneering work on affirmative action mismatch: essentially, if law schools (and other educational institutions) dip too far into the applicant pool to fill their diversity goals, many of the purported beneficiaries of preference policies wind up being academically uncompetitive with their peers. They ultimately wind up worse off than if they had been admitted to less prestigious programs where they would have been closer in skills and preparation to the median student. Sander’s policy recommendation based on his research are not terribly radical–schools should be somewhat less aggressive in their preference policies, and they should fully to disclose to the benefits of preference policies the success rates of past generations of students who entered a given program with similar credentials. “Informed consent,” if you will.

Sander, a Ph.D. economist, provides data that supports an inference that literally everyone in the legal academy already knows–that a great many students who are admitted as “diversity” admits wind up struggling in law school, leading to a much higher rate of failing out of law school and bar exam failure for such admits than for their white and Asian peers. Surely, if a key purpose of affirmative action is to aid these students one should be able to have a reasonable debate about whether the benefits of the policies as currently instituted outweigh the harms to their supposed beneficiaries, and, if so, whether reforms along the lines that Sander proposes would be a good remedy. Or perhaps law schools and related institutions would first open up their data to researchers to everyone could get a better handle on the underlying issues.

But current affirmative action policies are instead treated more like a religious obligation than like a debatable policy position. I’m guessing it’s especially harmful to be known as a liberal skeptical of current policies, because it’s always worse to be a heretic than a heathen.

Thus, Sander writes in a recent Denver University Law Review symposium: It is true that almost all legal academics are aware of the fireworks occasioned by my earlier research, but it is emphatically not true that the legal academy is engaged in any even-handed deliberation about the mismatch issue. Indeed, it would be more accurate to say that, at the major institutions of the legal academy–such as the Law School Admissions Council, the American Bar Foundation, and the American Association of Law Schools–it is considered extremely bad form to take the mismatch hypothesis seriously. If the topic of mismatch is brought up at all, it must quickly be cast aside in a tone both conclusory and dismissive. The determination to ignore the mismatch issue, and to ostracize those who think the problem is real, is manifest. How else can one explain why, in the six years since Systemic Analysis appeared, none of these institutions have released new data relevant to assessing the mismatch issue or the problem of minority bar passage? Why have none of them empanelled neutral social scientists to evaluate and report on the mismatch debate? On this issue, many otherwise distinguished academics have fostered an environment in which data is inaccessible and honest debate is profoundly chilled. Thus, I can think of at least one highly-regarded researcher in legal academia who lost a job, at least in part, for not regarding the mismatch issue with sufficient wariness. Other academics regularly tell me of their concerns about being punished professionally for engaging in mismatch research or even for investigating minority bar passage outcomes at their schools. One distinguished (and apolitical) academic offered to help me with mismatch research so long as his name was never attached to the work. I have many times been invited to give lectures or publish articles, only to have the invitations withdrawn when colleagues of the person making the invitation learn of it and protest. Indeed, the Stanford Law Review staff who published Systemic Analysis were pressured into publishing only critical response pieces, even though distinguished academics who (in article outlines submitted to the law review) offered more balanced assessments sought to participate.

It’s a good thing we don’t burn heretics at the stake anymore.