After the Gold Rush?: Grutter, Sander and ‘Affirmative Action’ “on the run…”
in the Twenty-First Century
Contentious in its character and on shaky grounds from its inception, ‘affirmative’ action in legal education has had a particularly rough go of things in the last few years at least. From the famous and notorious ‘25 year’ dicta of Madame Justice O’Connor in her Grutter v. Bollinger majority opinion (2003), to Professor Richard Sander’s empirical broadside in his work with the Stanford Law Review (2004) and beyond, it is not difficult to see the benighted initiative as “on the run” at this key juncture in its life history. This study seeks not to avoid statistical or other challenges to the effectiveness of today’s ‘affirmative’ action efforts, nor to explain away related anomalies or apparent disabilities, but rather to turn directly into them, ultimately implicating the true affirmativeness of
present day affirmative’ action. Using Professor Sander’s important work as suitable backdrop for its theme, this essay challenges the value of purely analytical assessments of these profoundly human projects, highlighting the limits of empirical analysis through the one thing conspicuously absent from his work – qualitative review – and the possible effects of that lack on his outcomes. From there it naturally takes aim at the true affirmativeness of ‘affirmative’ action, challenging the American legal education community, in the end, to get serious about the serious problem of race in professional education and practice, and to do so through qualitative initiative, and in a hurry.
Neither is the matter rendered less urgent by the passage of time. Just months ago the auspicious U.S. Commission on Civil Rights issued a report under the relatively benign title Affirmative Action in American Law Schools, which turned out to be little more than a review of the thesis of the enclosed paper: is Professor Sander right? The results of that inopportune report would seem to make the ideas of the enclosed that much more timely -- and urgent -- for today’s interested participant of the ins-and-outs -- and proprieties -- of present ‘affirmative action’ initiatives.
Anthony V. Baker, Professor of Law
CAMPBELL UNIVERSITY SCHOOL OF LAW
Buies Creek, North Carolina 27506
- affirmative action,
- mismatch theory
Available at: http://works.bepress.com/anthony_baker/1/