Sunday, November 23, 2014

Responding to the "Mismatch" Controversy in Law School Affirmative Action

The publication of a new paper by Richard Sander, Mismatch and the Empirical Scholars Brief, has reopened the controversy concerning affirmative action in law schools and his "mismatch hypothesis."  (here)  The mismatch hypothesis "postulate[s] that very large preferences--racial or of any other kind--may undermine student learning, because professors tend to teach to the middle of their class, and students far below the middle will have trouble keeping up and advancing as concepts build day by day."

There has been a great deal of criticism of Sander's hypothesis.  However, I would like to approach it from a different angle: regardless of whether Sander is correct, can law schools overcome the seeming disadvantages that students admitted through affirmative action display by adopting new teaching techniques?  I believe that the answer to this question is yes.   

There has a great deal of criticism of law schools' approach to legal education, particularly the Socratic method, the case book approach, and the paucity of practical experiences.  While many disagree, I find these criticisms devastating.  Law schools are using a nineteenth-century approach to solve a twenty-first-century problem.  Even the philosophical basis of the Langdellian method has been thoroughly refuted.  (here)

A recent study has demonstrated that smaller classes, personal attention, active learning, and frequent formative assessment can eliminate the gender gap in g.p.a. for law school graduates.  While I know of no similar study in the law concerning minorities, studies in other fields show that new approaches to teaching, particularly the use of active learning and developing a growth mindset, help at risk students perform better.  (e.g., Daniel T. Willingham, Why Students Don't Like School Ch. 8 (2009), here, here, here, here, here)  For example, a "recent study, focusing on different sections of an introductory biology class at the University of North Carolina at Chapel Hill, found that active learning is particularly beneficial to African-American students and first-generation college students. All students' test scores combined rose more than three points in classes structured around active learning, but African-American and first-generation students in active-learning classes saw scores rise more than six points." (here)

If law schools are going to admit students through affirmative action programs, they have the responsibility to make sure that those students succeed.  They should not be thrown into the pool to sink or swim.  As the old saying goes "give a man a fish and you feed him for a day; teach a man to fish and you feed him for a lifetime."  Affirmative action programs without more effective approaches to teaching are liking giving a man a fish.  Law schools need to teach men and women to fish so that they can succeed as lawyers.

(Scott Fruehwald)

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