Bill Henderson Responds: The Empirics of Affirmative Action, Part II

Josh Wright —  26 July 2006

A few days ago I asked about where we stand on the empirics of affirmative action, and more specifically, Richard Sander’s well known result that affirmative action at law schools harms blacks. I even called out folks who had been following the debate more closely:

I am really looking for empirical answers from folks that have read the literature and are familiar with the evidence rather than more general views on affirmative action. ELS guys? Bill [Henderson]?

Well, Bill Henderson at ELS Blog answered my request with an extremely thoughtful post. Bill is well versed in the debate and has been involved in recent efforts to impanel independent scholars to review the work of Sanders and his critics.

This is an absolutely must read post for anybody interested in this debate. Bill addresses the empirics, law school testing, lawyer competency, and a number of other important issues in his post. Here’s a taste, but you should really go read the whole thing:

During the last two years, critics have made in-roads on various parts of Sander’s analysis (particularly his prospective model that suggests that ending racial preferences could actually increase the number of black lawyers, since the estimate required assumption that could be easily contested). Many of the critiques, unfortunately, look at the data narrowly, concluding that if they can find any result with a subset of the data that varies from Sander’s they have done their job. I think the task is broader — to look at all of the data Sander has advanced (including the compelling second-choice data) and assess whether the mismatch theory does a better job than the alternative explanations in accounting for dismal black outcomes. But to date, no one has offered an alternative theory that fits the bulk of the observational data. And that’s a problem … .

I am tired of academics trying to score points at Sander’s expense without offering an alternative hypothesis that directly confronts the data. Faced with the bleak statistics on minorities and the legal profession, our time would be better spent embarking on a Manhattan Project for legal education that examines each nexus of the lawyer creation process, including law school pedagogy. A panel of respected, independent scholars to review the questions raised by Sander and his critics would be a step in the right direction.

Thanks for the answer, Bill.