I am grateful to Jason, Bill, and their fellow hosts for inviting me to write a bit this week.
The ELS movement is exciting and important. For thirty years, the legal academy has been taking tentative steps toward the social sciences. Many of us hope that legal scholars can adopt the rigor and sophistication that characterize the best social science work, while retaining the engagement with judges and legislatures that has traditionally been our strength. ELS has signified a growing maturity in the academy and a readiness to step closer to legitimate social science status.
The success of legal empiricism partly depends on its ability to help the legal academy – and society more generally – deal with sensitive issues where data has often been trumped by emotion and politics. My “Systemic Analysis” of affirmative action (mentioned by Bill in his introduction) raises important questions about a significant American social policy. But it raises equally important ethical questions about our academic community.
“Systemic Analysis” carefully documented that the use of racial preferences in legal education is far more intense and widespread than previously believed. It also showed that at individual schools there are enormous gaps in the bar passage rates of blacks and whites. The first of these claims seems to be (quietly) conceded by all; the second is disputed by a few, but shouldn’t be, for reasons I will spell out in the course of the week.
These facts alone should be provoking spirited discussion about the obligation of law schools to make more honest disclosures to their black applicants. And if, on top of this, it is the case (as I contend) that large preferences actually harm blacks boosted to more elite schools (or even, as others have argued, that widespread discrimination at law schools causes the observable harms) then what could be more urgent for our profession than to quickly and energetically move to determine exactly what is happening?
So far, that has not been the result. While I expected hard critiques of "Systemic Analysis", I did not expect the debate to be dominated by intensely ideological responses that entirely bypass the core ideas – and data -- without pausing to give them a serious reading. “Systemic Analysis” is not an ideological work. Rather, it is grounded not only in exceptional datasets, but in my seventeen years as a legal educator and my longtime interest in how to improve student diversity. No one likes to be the bearer of bad news. But the data tells a compelling story. If we avoid confronting that story, we are not fulfilling our ethical duty to our students.
The polarization of the debate has driven information underground. I regularly receive anonymous communications from readers – including law faculty – who share important insights or information but do not feel they can disclose their identities for fear of retaliation. Meanwhile, the ABA’s Committee on Diversity recently proposed changes in its rules that make it riskier for schools to *not* use racial preferences – changes which have now apparently been approved by the ABA .
Big institutions are often conservative and will summarily deflect criticisms that threaten the status quo. The duty to fully explore important and controversial issues – in this case, the efficacy of affirmative action in its current form -- lies with the independent researcher who has the skills and intellect to understand the data behind the debate. We know there are scores of such people in the legal academy, and most enjoy the privilege of tenure. But so far they've been largely silent. I invite these dispassionate empiricists to get involved in this work.
During this week, I will attempt to survey where the debate stands, explaining why I find the data showing a mismatch to be compelling and explaining exactly why the critiques so far fall short. Though blogging is an informal medium, I will impose on the reader’s patience by citing specifics and showing data whenever possible. I also will introduce some new data to address issues often raised in the debate – e.g., Do mismatch effects exist at the most elite schools? Is the problem getting better or worse? Why doesn’t the market fix the mismatch? What specific research is needed to resolve the open questions?
It's not surprising that work of this sort would provoke an emotional and complex debate. But we shouldn't lose sight of our common goal: to improve outcomes for minority students entering the legal profession. Affirmative action, after all, is not the end in itself, but the means to an end.