"Open Water" offers a sharp normative critique of Richard Sander's Stanford Law Review study (57 STAN. L. REV. 367 (2004)) that claims to prove empirically that affirmative action positively injures African American law students. Sander's law review article and conclusions are troublesome for a range of reasons and my critique unfolds as follows: First, Sander promulgates an objectionable form of racial paternalism in his anti-affirmative action study; Second, Sander casts himself in the fateful and historically disturbing role of the "Great White Father"; Third, Sander seemingly manipulated the mass media in drawing attention to his study and purported findings, particularly the use of his real life role as the father of a biracial son and his claim that he came to his difficult conclusions as a sympathetic and reluctant white liberal; and Fourth, Sander fails to consider, in any recognizable sense, crucial issues that impact his conclusions such as the clear benefits of diversity in the law school classroom and the significant work that law school admissions committees' undertake in evaluating applicants aside from straight LSAT and GPA considerations.
Most distressing is that while Sander's study sheds light upon troubling statistics that he did not create (not new, just now more publicized) that expose the serious United States education problem of the racial testing gap between white students and minority students and the bar examination passage gap between black and white students, he does not undertake a fundamental examination of the root causes of these problems. These are very serious evils indeed - disturbing issues that many in the legal academy should be (and are) working hard to understand and resolve. Sander however takes the easy road looking for a scapegoat upon which he can pin the entirety of the racial testing gap predicament, rather than undertaking a careful and thoughtful examination of the sources of the problem. Sander chooses his scapegoat (affirmative action) and then attaches the resolution of these problems on eliminating that scapegoat. My article criticizes Sander for each of these reasons, and then offers a much different path toward resolution.
andré douglas pond cummings, "Open Water": Affirmative Action, Mismatch Theory and Swarming Predators-A Response to Richard Sander, 44 Brandeis L.J. 795, 795 (2006).