New Arguments on Affirmative Action

Are Asian college applicants systematically discriminated against? Are law schools to blame for unhappy black lawyers?
June 21, 2006

While courts continue to hear arguments about affirmative action and Michigan voters prepare to decide the issue in their state, another round of intellectual debate is brewing in law reviews. Two articles -- one just published and one forthcoming -- challenge some conventional wisdom about affirmative action in higher education. Early buzz suggests that the pieces may attract considerable attention and challenge both critics and defenders of affirmative action.

One article -- in the Michigan Journal of Race & Law -- takes on the view that the primary beneficiaries of the end of affirmative action in college admissions would be Asian American applicants. The piece analyzes some of the same data that has been used to make that argument and says that what it really shows isn't that affirmative action hurts Asian Americans but that "negative action" (in other words, discrimination) is placing a limit on the enrollments of Asian Americans.

The other article -- not yet available online or published -- will appear in the North Carolina Law Review. This article examines the attrition of black lawyers from top law firms and links their departures to their poor grades in law school, which in turn the author has previously attributed to the use of affirmative action to admit minority law students who, on average, can't compete at the same level with their white colleagues. A previous article on affirmative action by the same author -- Richard Sander -- was one of the most discussed pieces of legal scholarship in 2004, drawing both strong praise and intense criticism. Advocates are already lining up to dissect the new Sander article, even before it has appeared.

'Negative Action Versus Affirmative Action'

The article about Asian Americans comes amid many reports that they are the group that most benefits from the elimination of affirmative action. That supposition is important for several reasons, both practical and political. On a practical level, it counters the idea that colleges will be all white in a post-affirmative action era. Politically, these projections have been used repeatedly by critics of affirmative action, arguing that they are not "anti-minority" and to appeal for Asian support in referendums. One of the most dramatic studies on this issue came last year, when two Princeton University researchers analyzed data from elite colleges and projected that, without affirmative action, four of every five slots lost by black and Latino students would go to Asian Americans.

In "Negative Action Versus Affirmative Action: Asian Pacific Americans Are Still Caught in the Crossfire," William C. Kidder takes issue with the Princeton study and similar findings by other scholars. It's not that the demographic shift seen by the Princeton researchers wouldn't take place in an admissions system that's truly race-neutral, says Kidder, a senior policy analyst at the University of California at Davis. Rather, it's the question of why those slots would go to Asian applicants.

The reason, he says, isn't the elimination of affirmative action, but the widespread use of "negative action," under which colleges appear to hold Asian American applicants to higher standards than they hold other applicants. Using the available data from the Princeton study -- and not all of it is available -- Kidder argues that the vast majority of the gains that Asian American applicants would see come from the elimination of "negative action," not the opening up of slots currently used for affirmative action. Based on the data used by the Princeton study, Kidder argues that negative action is the equivalent of losing 50 points on the SAT.

The lead author of the Princeton study did not respond to messages about the findings.

Kidder wanted to check his critique of the Princeton findings about undergraduate applications so he also compared the impact of the end of affirmative action on Asian American enrollments at five public law schools where racial preferences were banned: three in the University of California, the University of Texas at Austin, and the University of Washington.

Tracking enrollment patterns from 1993, when all of the law schools had affirmative action, to 2004 -- when they all did not -- and then to 2005, when Texas restored it, his results were surprising. Without affirmative action, the share of Asian American enrollments dropped at two of the law schools and increased only marginally at three of the schools -- even though people assume Asian American enrollments will go way up without affirmative action. Kidder notes that during the time period studied, the percentage of Asian Americans applying to law school increased 50 percent, so the pool should have created the opportunity for major increases.

What does this all mean? Kidder argues that all the references to growing Asian enrollments in a post-affirmative action world encourage a return to the "yellow peril" fear of people from Asia taking over. More broadly, he thinks Asian Americans in particular aren't getting accurate information about the real cause of their perceived difficulties getting into competitive colleges. Their obstacle, he says, isn't affirmative action, but the discrimination Asian Americans experience by being held to higher standards than anyone else. He says that the differential standards appear to be growing and are similar in some ways to the way some Ivy League institutions limited Jewish enrollments in the first half of the 20th century.

"Whether an individual Asian American supports affirmative action or not, this is an independent problem, not because of affirmative action," Kidder says.

His interest in law schools comes from his own experience, since he is a graduate of Boalt Hall, the law school at the University of California at Berkeley, and was a student there in the second class after affirmative action was eliminated. He could see the more diverse third-year class and compare it to his own, which was almost entirely white, as is Kidder.

"There was an erosion in discourse and the quality of education I received," he says, noting that in his experience, the affirmative action changes that sent black and Latino enrollments tanking did not lead to an influx of Asian American enrollments.

'The Racial Paradox of the Corporate Law Firm'

The article on law firms might appear to be about affirmative action outside of the educational context, but it is very closely related to law school and other admissions policies. Sander, a professor of law at the University of California at Los Angeles, uses the article to explore why black lawyers appear to do well in getting hired by top law firms, but rarely rise to be partners. Sander's earlier work on affirmative action argued that by admitting poorly qualified black applicants, law schools do them a disservice as they don't do as well as they would have at less prestigious law schools. The new piece carries the idea forward and argues that law firms hire black students with grades that would never have been sufficient for a white student -- and that this sets the black students up for failure.

While the article has not been publicly released, Stuart Taylor wrote about it Monday in National Journal and copies of the Sander article have since become a hot commodity. (Sander did not reply to messages Tuesday.)

Many defenders of affirmative action see the Sander work as likely to have a big impact -- as his 2004 article had -- and to be applied broadly to higher education.

"This is an extension of his basic argument of a mismatch between students and schools, which he's applying to law firms," says Christopher Bracey, an associate professor of law at Washington University in St. Louis and co-administrator of, a group blog of black law professors. "This is now going to be applied to any sector of the economy, and people are going to say that this explains the reduction in tenure rates of African American professors," Bracey says. He sees Sander's arguments as appealing to those "who want to sincerely believe that we are in a meritocracy."

What Sander does in his article is set out a series of statistics that suggest a sharp gap in the educational achievements of white and black law students who end up at top firms. (He also compares figures for other minority groups, but the gaps are most stark for black students). For example, of new lawyers working in law firms with offices of at least 100 lawyers, Sander finds that 21 percent of white students, and only 2 percent of black students, have grade point averages of 3.75 or higher. Only 14 percent of white students who work at such firms have GPA's below 3.25, but 46 percent of black students do.

Not only do these data suggest race-based hiring standards, but the new black lawyers themselves believe that their race played a role in getting their jobs. Asked if various factors were important in obtaining their jobs, 56 percent of new black lawyers said that their race or ethnicity was important, compared to only 2 percent of white lawyers who felt that way.

Sander writes that law firms place a high value on appearing to be diverse, and so hire black lawyers with low grades, even though these lawyers are then far more likely to leave the firms and far less likely to rise than are other lawyers. Of various activities and legal duties Sander compares, there is one where new black lawyers are significantly more likely than white lawyers to be participants: 41 percent of black lawyers and 26 percent of white lawyers report that serving on a recruitment committee is something they do regularly.

Citing a range of other data, Sander writes that law firms have found that law school grades actually mean something -- and predict success in legal work -- so that if they are willing to apply that test to white applicants, they should apply it across the board. Sander writes that law firms would benefit by placing less emphasis on their numbers of black lawyers and more on the quality of those they hire. "If firms are less focused on achieving proportional representation among summer associates, and more focused on hiring a modest number of minority associates whom they are more committed to training and developing, they will both narrow the credentials gap and decrease the likelihood of attrition," Sander writes.

He also urged top law firms to pressure law schools to improve black student performance -- both by decreasing the use of affirmative action in admissions and by providing more academic support.

The same issue of the North Carolina Law Review with Sander's article will contain a strongly worded rebuttal by James E. Coleman Jr. and Mitu Gulati, law professors at Duke University. In their piece, they argue that Sander overstates the role of grades and understates other factors in explaining the performance of new black lawyers. In particular, they note that law firms have cultures that may or may not be receptive to diversity (and they suggest that some are and others aren't).

Coleman and Gulati also argue that Sander doesn't have enough evidence about grades and subsequent legal career performance to make the claims that he does. They state, for example, that he should have tracked the group of black students who do perform well in law school to see whether their grades correlate with success in large law firms. Failing to look at such students, they write, raises major questions about his findings. They also cast doubt on his reiteration of his belief that black students will be better off earning better grades at less prestigious law schools. Where is the evidence, they write, that top law firms will recruit at such law schools? (There's ample evidence that top law firms recruit at a very narrow group of law schools.)

Even as they question Sander's article, however, Coleman and Gulati write that they fear its impact. Sander's writings are "taken seriously" outside law schools, they write, and this work will damage young black professionals as it will reinforce stereotypes about their abilities, they write. "To the extent there is material in his article that will be understood as empirical confirmation of the lack of qualification of black students, the article imposes a high cost on those who need no additional obstacles placed before them," they write.

Bracey, the Washington University professor, has his own criticism of Sander's ideas -- even while acknowledging that he believes that there is a grades gap between black and white law students. Bracey is in many ways part of the sample that Coleman and Gulati suggest Sander should have examined: He not only went to Harvard Law School, but excelled academically, serving as an editor on the Harvard Law Review and holding a clerkship before working for a few years in a large law firm. Sander's work would classify him as someone who somehow "failed" -- even though he's a professor at a top law school, Bracey notes.

"Many minority lawyers move to different sorts of activities," Bracey says. "That's not necessarily a negative."

In his courses, Bracey says, he feels confident that race does not influence grades: Tests are scored blindly.

But when you are a black law professor, he says, you get visits from plenty of students -- minority students and women, who talk about the culture of institutions -- about fellow students' expectations, about what it means to study in libraries where portrait after portrait shows dead white men, about courses where you are expected to be the voice of black men or white women, or some other group. Even without overt racism, Bracey says that there are many "subtle factors" that have a real impact on the experience of minority law students.

In his courses, Bracey says, he goes out of his way to include plenty of case law about issues of race and gender and bias, but he also makes sure that he asks students -- black and white, male and female -- about all of these issues. He wants all students to see that these issues are important, and that no one group is responsible for these issues.

"I do these kinds of things, but not everyone does," Bracey says. "I'm a blip on the otherwise steady radar that students experience."

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