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Stanford Law Review
 in 2005; see,
e.g., Dauber, “The Big Muddy.” In addition to disputing his quantitative methods and
specific results, critics have also argued against the potential policy implications Sander
draws regarding affirmative action. Sander himself characterized the question of “the con-
sequences of eliminating racial preferences on the production of black lawyers” as a “side
issue” in his original article, and at times seems to take seriously the fact that there is much
that needs to be researched and considered before coming to any firm conclusion as to
the best policy response to his findings. Sander, “Reply,” 1996, 2003, 2013.
63. Wilkins, “A Systematic Response”; Chambers et al., “The Real Impact”; see also
Sander, “Reply,” 2003: “It is of course true that ending racial preferences in law admis-
sions would substantially reduce black enrollments at elite law schools. This is a real and
valid concern, as I noted . . . , and it would clearly be a central concern in actual discus-
sions aimed at addressing the mismatch effect.”
64. If it is clear that abolishing affirmative action would roll back any progress that
has been made to date at desegregation of the elite law schools, then it seems likely that a
diminished supply of black graduates from the elite schools might translate to an even
smaller supply of potential black law professors than currently exists. (There is apparently
some debate over the effect on upper echelons of the profession, but certainly one point
of view states that the most elite law firms tend to draw from the most elite law schools,
including when hiring black students.) Sander dismisses Ayres and Brooks’s suggestion
that stereotype threat might affect black students’ performance, but it is possible that ste-
reotype threat is just one example of a wider set of cultural problems that remains largely
unexamined and unstudied in law schools. Sander, “Reply,” 1963; see Ayres and Brooks,
“Affirmative Action.” From an anthropological vantage, the many reports of discomfort
and alienation from law students of color open the possibility of a different kind of “mis-
match,” one created by divergent understandings and communications, by unconscious
or implicit bias, by social gaps that result from a legacy of discrimination and segregation.
Sander himself, in earlier work with Gulati, helped to reveal differential “pockets” of alien-
ation among law students of color. Gulati et al., “The Happy Charade” (although this would
of course be only one piece of a larger picture). Orfield and Whitla have documented the
differentially segregated experience of white students at Michigan and Harvard, many more
of whom had lived and gone to school in exclusively same-race settings than had students
of color. On the other side, this study has uncovered stark discursive disparities in class-
room discussions for students of color, a pattern not found in the classes taught by pro-
fessors of color where there are significant cohorts of students of color. Some aspects of
discourse patterning may also play a role in racial dynamics in class. We earlier reviewed
the evidence and arguments that classroom discourse, culture, and overall climate can have
effects on student confidence and self-concept that are independent of grades. Along similar
lines, a recent investigation by Yale law students revealed differential discomfort on the
part of students of color (and female students) regarding seeking out law professors for
counsel on everything from schoolwork to jobs. These kinds of social and cultural gaps
have yet to be well studied or accounted for; indeed, it is difficult to imagine them being
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adequately encompassed using quantitative models (although I’m always open to being
convinced to the contrary!).
65. See discussion above, and in Chapter 8. As this book went to press, I had the
exciting opportunity to read a draft of the forthcoming Carnegie Foundation book report-
ing the findings of its own recent study of legal education, entitled “Educating Lawyers.”
The Carnegie Foundation research’s conclusions dovetail with my study’s findings in many
respects and also incorporate current perspectives from educational research to suggest
possible shifts in legal pedagogy and assessment. It will undoubtedly serve as an impor-
tant source for law teachers who seek new ideas for improving legal pedagogy.
66. If law schools were to take this direction, then the jolt that they have received as
a result of the Sander study could be turned to positive effect. The extreme path of elimi-
nating affirmative action could in a sense be understood as giving up on real integration
of law schools, a patently undesirable and undemocratic result in a racially diverse society
largely run by lawyers. But Sander is correct that an alternative strategy of integration
without appropriate concern for the students of color who might fall by the wayside is also
unacceptable. All the demonstrated benefits of diversity to law schools and white law stu-
dents, as well as to successful law students of color, do not obviate the imperative to con-
sider the needs of the overall population of law students of color. One obvious step to
prevent a Scylla-and-Charybdis choice—between resegregation of the most powerful, elite
sector of the profession, and sacrifice of too many black law students along the road to
integration—is for law schools to pay more attention to the strategies that have worked in
other educational settings and to be more willing to develop innovative pedagogy that will
benefit not only students of color but all students.
67. As Davidson notes, this more contextual approach to understanding educational
settings also permits a more sophisticated understanding of race itself: as “scholars in-
creasingly recognize previously unpredicted manifestations of race,” a careful analysis
of school- and classroom-level contextual factors can help us to “incorporate the more
fluid, situational conceptions of social categories” and thereby to achieve more accu-
rate analysis of “the reproduction of social inequality” in educational settings. Davidson,