In 2004, you set off a firestorm, UCLA law professor Richard Sander. In the Stanford Law Review, you presented your “mismatch theory,” stating Black students are actually harmed by affirmative action admissions policies.
“Most black law applicants end up at schools where they will struggle academically and fail at higher rates than they would in the absence of preferences,” you wrote. “The net trade-off of higher prestige but weaker academic performance substantially harms black performance on bar exams and harms most new black lawyers on the job market.”
You did not stop there. You claimed a “race-blind system” would actually produce more Black lawyers each year. I have yet to see proof there is a “race-blind system,” as I said before. But I am not writing you about that. I am writing you about the recent court case you won.
Critics of your mismatch theory have claimed, among other things, that you based your conclusions on inadequate statistics. In reaction, in the intervening years, you have waged a legal fight to access data from the California bar association. The association has prohibited you from accessing bar exam pass rates.
Last week, the California Supreme Court ruled in your favor, giving you access to the data, so long as privacy concerns are addressed. So if you do get it, what do you intend to do with it? Where do you intend to put your scholarly energy, your activist energy?
If you decide to put your energy into strengthening your mismatch theory, as I suspect you will, then how about broadening your theory to all students, of all races?
As you know, there are quite a few White law students who struggle academically, who fail out, who fail bar exams, who do not attain their dreams of becoming a lawyer in California. They have been harmed, according to your theory, they have been mismatched just as much as any Black aspiring lawyer who does not do well. Why not investigate the causes of poor performance for all students? That would be far more reaching, far more impactful than your narrow focus on Black students.
For years, you have stressed how much you care about aspiring Black lawyers, how much you do not want them to be harmed, how you want to create a system that produces more black lawyers. Where is the care for aspiring White lawyers who are not performing well?
I suspect you do care — not necessarily about African Americans though. I could be wrong, but it seems to me you and your team of affirmative action opponents in the Pacific Legal Foundation, Center for Equal Opportunity, American Civil Rights Institute, and National Association of Scholars are simply trying to open up more seats for White students. White Americans are privileged in nearly all of the major admissions factors (standardized tests, college prep courses, GPAs, etc.). But eating nearly all of the admissions pie is not enough. Your team will not rest until you have won it all, and White privilege is again total.
So I am sitting here, scratching my head trying to figure out something out. Why are you not looking into making sure White students, all students are not harmed, are not being mismatched to California law schools?
Is the LSAT the best predictor of law school performance? According to one recent study, the combination of one’s LSAT score and undergraduate GPA are a better predictor of a student’s first year law school performance than either in isolation. But what about the second year, the third year? What about bar passage, success as a lawyer? There is data that shows the LSAT and undergraduate GPA are not good bar passage predictors.
Will you investigate this finding with your new data set? I hope so. You may find that the LSAT “mismatches” more students, “harms” more students than affirmative action. But then again, I forgot, the LSAT is the escalator of White privilege. And you would never touch that.
Dr. Ibram X. Kendi (formerly Ibram H. Rogers) is an assistant professor of Africana studies at the University at Albany — SUNY. He is the author of The Black Campus Movement: Black Students and the Racial Reconstitution of Higher Education, 1965-1972. Follow on Twitter @DrIbram