And speaking of empirical data...

By now, almost everyone in legal academia has become aware of the United States Civil Rights Commission's call for law schools to report data on the success (or failure) of students of color at their schools and on the bar exam. (As usual, Paul Caron was one of the first to the scene.) Coupled with the Commission's urging that the ABA drop its accreditation requirement that a law school develop a plan to achieve diversity, the Commission's 220 page report seems like a very thinly veiled attack on affirmative action in law schools.

We may have very different views about the role of affirmative action in higher education. Personally, I am in favor it. However, given this blog's emphasis on making decisions based on empirical, verifiable, testable information, it's hard to reject out of hand the Commission's call for law schools to disclose information about the performance of ALL students (including students of color) that they have admitted. Of course there is the possibility that such information will be used (or misused) by those who want to dismantle affirmative action. But if affirmative action is worth defending, it should be worth defending on the facts and not just in principle.

The dissent of the Commission's two Democratic members certainly permits an inference that the Commission was more interested in reaching a particular result than in finding out the truth about the impact of affirmative action. (I couldn't find a direct link, but here's an excerpt: "No attempt was made by the Commission to assess the consensus positions of the scientific or legal community on these issues. No independent research was done by the Commission on these issues, nor did they perform a comprehensive review of others' research.") Defenders of affirmative action should not follow the Commission's lead. We shouldn't presume that we know what effect affirmative action has on the career chances of those we admit and educate in our schools. We may not like the heavy-handed way the Commission went about calling for this information to be disseminated, but nor should we fear providing our consumers with more information about exactly what it is we are doing.