Affirmative Action

Today's edition of Inside Higher Ed features an article by Scott Jaschik entitled "New Arguments on Affirmative Action." Jaschik highlights "another round of intellectual debate...brewing in law reviews." The first article, published in the Michigan Journal of Race & Law , discusses affirmative action in college admissions, and concludes that affirmative action isn't hurting Asian-American applicants, but that what the author calls "negative action," i.e., discrimination, is limiting the enrollment of Asian-American students; these students are being held to higher standards than other students, which, according to the author, William C. Kidder, "is the equivalent of losing 50 points on the SAT." Kidder found this to be true at the law schools he studied as well as on the college level.

The second article will appear in the North Carolina Law Review and is written by UCLA law professor Richard Sander, who previously wrote about affirmative action in 2004 in the Stanford Law Review. The new article is not yet available online or in hardcopy, but according to Jaschik, it "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." Stuart Taylor, Jr. wrote about Sander's article on Monday in the National Journal, and concluded that hiring preferences for minority lawyers have been "at best a mixed blessing--and...often a curse--for their recipients." Jaschik reports that the issue of the North Carolina Law Review that publishes Sander's sure-to-be controversial piece will also publish a "strongly worded rebuttal" by Duke law professors James E. Coleman, Jr. and Mitu Gulati, who find fault with Sander's evidence and conclusions. However, they also are concerned about the article's impact, because Sander's writings are "'taken seriously' outside law schools" and will "damage young black professionals as it will reinforce stereotypes about their abilities, they write." Both the Sander article and the Coleman/Gulati rebuttal sound like must reading for anyone concerned about the future of legal education and the legal profession.