The Mismatch Critique of Affirmative Action

The debate over affirmative action now turns on a sharp legal and empirical tension: after Students for Fair Admissions v. Harvard, institutions committed to diversity must pursue those goals without using race in ways the Supreme Court has deemed unlawful. The stakes are significant for law schools, employers, students, and the legal profession, because admissions practices shape educational opportunity, bar passage, elite hiring, and the pipeline into positions of influence. Professor Richard Sander of UCLA School of Law, a law professor and PhD economist whose work has been cited by the Supreme Court and who served as an informal advisor to the SFFA plaintiffs, brings a distinctive and controversial perspective to this discussion in this episode of New Law Order—a limited series and podcast co-hosted by Joel Cohen and Yale Law Professor John Morley. Drawing on decades of research and new data on law school admissions after SFFA, Sander examines whether racial preferences have achieved their intended goals or instead produced unintended harms.

One central issue is how law schools have responded to the Supreme Court’s modern affirmative action doctrine. Under the pre-SFFA framework of Bakke and Grutter, universities could consider race in limited ways to further the educational benefits of diversity, subject to strict scrutiny; SFFA substantially narrowed that space by rejecting admissions systems that use race as a determinative preference while permitting consideration of an applicant’s individual experiences. Sander discusses new research using self-reported applicant data from Law School Data to assess whether law schools have reduced racial preferences in practice. His preliminary findings suggest that preferences in law school admissions have declined substantially since SFFA, particularly for Black and Hispanic applicants, while overall minority enrollment has not collapsed in the way some predicted.

A major thread of the conversation involves the “mismatch” critique itself. The mismatch hypothesis argues that when students receive large admissions preferences and attend schools where their entering credentials are significantly below those of many classmates, they may learn less, earn lower grades, and face worse outcomes than they would have at a school where their credentials more closely matched the student body. This claim matters because, in strict scrutiny analysis and in broader institutional decision-making, the efficacy and consequences of a race-conscious policy are central to evaluating whether it is justified. Sander points to evidence from law school grades, bar passage, and professional outcomes to argue that large preferences can be counterproductive for their intended beneficiaries, while acknowledging that the theory remains contested by other scholars on methodological and causal grounds.

The discussion also addresses the post-SFFA implications for law firms and other legal employers seeking to build diverse associate and partner ranks. Although SFFA directly concerned higher education admissions rather than private employment, race-focused hiring or advancement programs may raise separate concerns under Title VII, Section 1981, and related legal principles prohibiting race discrimination in employment. Sander argues that employers should be cautious about programs that rely explicitly on race and should instead focus on pipeline development, socioeconomic disadvantage, structured mentoring, and sustained training. In his view, law firms that recruit candidates who may have had unequal opportunities should pair access with meaningful professional support, including careful supervision, feedback, and challenging assignments that help young lawyers succeed.

The broader implications for the legal system are substantial. Sander describes the post-SFFA period as a large natural experiment that may test whether reducing admissions preferences improves academic performance and bar passage rates among underrepresented students, with effects likely to become clearer in the late 2020s. He also emphasizes the importance of transparency, arguing that access to admissions, transcript, and bar passage data is essential for evaluating whether diversity policies are working as intended. More broadly, the conversation invites lawyers and institutions to distinguish between goals that may command broad support—expanding opportunity and reducing racial inequality—and methods that may be legally vulnerable or empirically contested.

This conversation offers a critique of affirmative action, with attention to doctrine, data, institutional design, and professional responsibility. Professor Richard Sander is a professor at UCLA School of Law and an economist whose scholarship focuses on race, legal education, affirmative action, housing segregation, and empirical legal studies. His work on mismatch, law school admissions, and racial preferences has made him one of the most influential and debated voices in the affirmative action debate.