Why Affirmative Action Does Not Cause Black Students to Fail the Bar

114 Yale Law Journal 1997 (2005)

Daniel E. Ho


In a widely discussed empirical study, Richard Sander concludes that affirmative action causes black students to fail the bar. If correct, this conclusion would turn the jurisprudence, policy, and law of affirmative action on its head. Yet the article misapplies basic principles of causal inference, which enjoy virtually universal acceptance in the scientific community. As a result, the study draws internally inconsistent and empirically invalid conclusions about the effects of affirmative action. Correcting the assumptions and testing the hypothesis directly shows that for similarly qualified black students, attending a higher-tier law school has no detectable effect on bar passage rates.

Part I of this Comment clarifies the assumptions implicit in the Sander study and explains the inconsistent and indefensible premises on which it rests. Part II presents results from a reanalysis of the data, using alternative methods that correct and reduce the role of these unjustifiable assumptions. The reanalysis suggests that Sander's conclusions are untenable on their own terms.

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