Affirmative Action's Affirmative Actions: A Reply to Sander

114 Yale Law Journal, 2011 (2005)

Daniel E. Ho


I am grateful to Professor Sander for his interest in my work and his willingness to pursue a valid answer to the critical question of the effects of law school tier on bar performance. Sander's readiness to respond to my Comment demonstrates the importance of the questions at hand and his openness to progress on these issues. Fortunately, progress is possible, because, as I show here, the impressive-sounding points in Sander's Response violate basic methodological principles and are incorrect.

Sander points to certain descriptive facts that my Comment does not dispute. Black students appear to fail the bar at higher rates than white students. It also appears that "blacks and whites with similar law school grades (when controlling for school and entering credentials) have virtually identical graduation and bar outcomes." However, these descriptive observations are irrelevant to the causal question of whether going to a higher-tier law school causes black students to fail the bar.

As my Comment and this Reply demonstrate, black law students who are similarly qualified when applying to law school perform equally well on the bar irrespective of what tier school they attend. There is no evidence that affirmative action reduces the bar performance of the students it is designed to help. The descriptive facts Sander presents may account for some of the reasons for affirmative action, but they do not address the consequences of affirmative action.

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