When People Aren't Impressed With Your Arguments... It May Be That They're Unimpressive

I've commented before on the concern trolling about minorities getting into schools that are above their academic reach, then finding themselves at a disadvantage in the job market due to their performing below the level of their 'qualified' peers. I've never been impressed with the argument. For elite schools, branding remains a significant issue - as G.W. Bush can tell you, better to graduate from Harvard and Yale with a C average than to get straight A's at a college that matches your academic profile. For non-elite schools, I find it difficult to believe that you can make a sufficiently granular analysis.

One of my classmates, who did very well in law school (magna cum laude), shared a story during our first year. He had gone to the administration to try to defer his enrollment and, according to him, was told he was lucky to be admitted in the first place, "Do you know how many students we admit with your GPA?" A professor who had been one of those law students who seems able to sneeze in a blue book and have the professor issue an A+ recounted how he had been a C+ student as an undergrad and was absolutely shocked when he found himself consistently at the top of his class during his first year of law school. After that, prestigious federal clerkship, Supreme Court clerkship, and a few years later a faculty appointment at a top ten law school. Another professor, despite being somewhat narcissistic, shared a story about how he stumbled through law school, applied very late for a clerkship because he didn't have a job and just changed into a federal clerkship, stumbled through a couple of years of legal practice, didn't care for it, applied for a law professorship on a lark and ended up at a top law school - nobody looking at any of his numbers would have seen any of that coming. I didn't think he was a particularly good law professor, but there he was.

The "they're in schools in which they can't compete" concern trolling wouldn't apply to the people I just described - they weren't minority students. Exceptions don't prove a rule, but if you overgeneralize you risk missing some important elements of law school and career success. Let's also recall, perhaps the most famous "diversity student" in law school history was J. Danforth Quayle. I expect that he did struggle in law school, but....

Back in 2005, I specifically commented on an article by Richard Sander, what I considered (and consider) to be an unimpressive argument about minority enrollment in law schools. At the Volokh Conspiracy, one of the champions of this argument, David Bernstein, complains,

Sander, a Ph.D. economist, provides data that supports an inference that literally everyone in the legal academy already knows–that a great many students who are admitted as “diversity” admits wind up struggling in law school, leading to a much higher rate of failing out of law school and bar exam failure for such admits than for their white and Asian peers. Surely, if a key purpose of affirmative action is to aid these students one should be able to have a reasonable debate about whether the benefits of the policies as currently instituted outweigh the harms to their supposed beneficiaries, and, if so, whether reforms along the lines that Sander proposes would be a good remedy. Or perhaps law schools and related institutions would first open up their data to researchers to everyone could get a better handle on the underlying issues.

The argument here approches,

1. Many students admitted as "diversity" students struggle in law school, and it has been argued that minority students admitted under law school diversity programs have more difficulty graduating and getting employment than similarly qualified minority students who are admitted to less rigorous schools.

2. Law schools won't give Sanders the data he wants, in order to be able to better document his assuptions.

3. Therefore, law schools know Sanders is right and are collectively covering up "the truth."

Another possibility is that law schools aren't impressed with Sanders' scholarship, and thus aren't willing to expend resources and manpower to extract and provide a FERPA-compliant data set consistent with Sanders' requests. Yet another is that law schools don't want anybody to give serious scrutiny to their claimed job placement data, and to find out how partial, self-serving and manipulated their publicly available placement and salary numbers usually are.

Bernstein quotes Sander,

"Why have none of them empanelled neutral social scientists to evaluate and report on the mismatch debate? On this issue, many otherwise distinguished academics have fostered an environment in which data is inaccessible and honest debate is profoundly chilled."

I'll concede, if you are a professor and want to write a research paper on why minority students should be excluded from diversity programs, based upon weakly reasoned extrapolations from limited data, and either show no interest in making a similar analysis of non-minority students or admit that the J. Danforth Quayle types see significant benefit but "that's different", you're probably going to have difficulty getting your peers to take your research interests as seriously as you would like. But I'm not seeing how "Your data is insufficient to support your argument" would "chill" the research. I'm certainly not seeing how, "Why don't you care about the relative success and failure of other beneficiaries of diversity programs," is anything but a fair response. And I'm not seeing the fact that law schools don't want to put resources into pulling data for such research as proof that they know its proponent will be proved correct. Frankly, there's reason to be skeptical of any scholar who claims to know something as a matter of near or absolute certainty, but simultaneously admits that he lacks the data necessary to support his argument.

Thus, I can think of at least one highly-regarded researcher in legal academia who lost a job, at least in part, for not regarding the mismatch issue with sufficient wariness.

And Sharron Angle "knows" that there are many "domestic enemies" in Congress. The person has supposedly been drummed out of academia - a list of one could bring us back to my earlier allusion to trying to prove the rule based upon an exception; but a secret list of one is completely unconvincing. Sander appears to be the leading proponent of this argument, David Bernstein cheerleads his arguments, and neither seem to be at risk of job loss.

"Indeed, the Stanford Law Review staff who published Systemic Analysis were pressured into publishing only critical response pieces, even though distinguished academics who (in article outlines submitted to the law review) offered more balanced assessments sought to participate."

We now live in a world with these crazy things called "websites", where anybody can post anything they want for the world to see, at minimal cost. If a stack of convi,cing articles, supporting Sander's positions, exist, there is no reason why they would be unavailable.

Back to Bernstein,

It’s a good thing we don’t burn heretics at the stake anymore.

"Some people think my research is garbage, others think there might be something to it but won't attach their names to my present body of work, and some people object when I speak at certain conferences - just don't ask me for specific examples" = being buned at the stake? Melodramatic, much?

Would it be controversial for a researcher to say, "I am very interested in identifying the factors that predict how students perform in law school, and how law school success translates into career success, so I would like detailed, granular data about admissions, grades, and placement so I can look at the issue from the greatest number of angles"? I suspect not. So why not start there?