November 26, 2004|By Stuart Silverstein | Stuart Silverstein,LOS ANGELES TIMES
LOS ANGELES - Law professor Richard H. Sander, author of a new study concluding that affirmative action hurts black law school students, generally seems an unlikely candidate to challenge a leading liberal cause.
Sander, 48, is a soft-spoken former VISTA volunteer who for years has studied housing discrimination and championed efforts to fight segregation in Los Angeles. A self-described "pragmatic progressive" who supported Sen. John Kerry for president, the UCLA professor also promoted a local program in the 1990s to help the working poor win more federal aid.
Yet Sander's latest research, to be published soon in the Stanford Law Review, is drawing widespread criticism from liberal backers of affirmative action and is roiling law schools around the country.
His study asserts that law school affirmative action programs often draw blacks to tougher schools where they struggle to keep up, leading many to earn poor grades, drop out and fail their state bar exams.
"The big picture is that this system of racial preferences is no longer clearly achieving the goal of expanding the number of black lawyers," Sander said in an interview. "There's a very good chance that we're creating such high attrition rates that we're actually lowering production of black lawyers, and certainly we are weakening the preparation of the black lawyers we are producing."
Affirmative action opponents have made similar arguments about racial preferences in the past, but Sander's research provides new statistics on academic performance. He reports that, in his national sampling, nearly half of first-year black students received grades placing them in the bottom 10th of their classes. In addition, he found that among all students who entered law school in 1991, 45 percent of black students graduated and passed the bar exam on their first try, while 78 percent of whites did so.
Sander, who now favors scaling back affirmative action, argues that racial preferences often create an "academic mismatch" that puts black students into competition with white students with stronger credentials. He contends that if the same black students went to less-selective law schools, they would earn higher grades, raising their chances of graduating and learning what is required to pass the bar exam.
Some critics who have read a draft of the paper say Sander may be understating the rate at which blacks pass the bar exam. They also argue that his explanations for black students' lagging performance are based on sweeping, unproven assumptions, and they say that he fails to recognize affirmative action's far-reaching benefits.
"If we look at our society today compared to what it was before we had affirmative action, I think almost everybody would agree it's much better today," said David Wilkins, a Harvard law professor writing a critique of Sander's paper. "And the very fact that we had affirmative action is a big part of why."
At the same time, Sander is widely regarded as a serious, independent-minded academic. Alison Grey Anderson, a friend who has taught at the UCLA law school since 1972, said she admires his intellectual integrity. "If he believes something is true, he's going to say it, and he's really not going to take into account the political consequences," she said.
Amid the controversy these days, she said, "I wouldn't want to be in his shoes."
Sander, director of the Empirical Research Group at the UCLA law school, said one of his guiding principles is "the idea that policy changes have to be empirically evaluated before we do them, and that we need to take advantage of social science so we don't throw away political capital on things that aren't going to work."
Likewise, Sander said, affirmative action "needs to be subjected to the kinds of cost-benefit evaluation that we would apply to any social policy."
He said he knew his research would ignite controversy. But Sander, who lives in Los Angeles with his two children and wife, Caltech astrophysicist Fiona Harrison, said family issues prodded him to move ahead.
One factor, he said, is the educational future of his 14-year-old son, Robert. University affirmative action could play a role in Robert's life because his racial background is mixed: Sander is white and Robert's mother, Sander's first wife, is black.
Sander's new Stanford Law Review study includes data from the Law School Admission Council on 27,000 students who entered 160 U.S. law schools in 1991.
Critics say Sander vastly underestimates the role affirmative action plays in persuading blacks to go to law school, especially when it means attending a top-tier school near home.
Partly for that reason, a group that includes two University of Michigan law professors who are drafting a response to Sander's paper estimates that eliminating affirmative action would reduce the number of blacks entering the legal profession by 25 percent to 30 percent annually. Sander, by contrast, estimates an increase of about 9 percent.
Critics also contest the notions that affirmative action is the only reason for poorer law school performance by blacks and that black students would earn better grades at less-selective schools. They say students admitted into more challenging schools often learn more, in part because of greater expectations and resources.
In addition, critics say, the connections made at elite law schools may push up their earnings more dramatically later in their careers, a possibility that Sander's study didn't address.
