The National Association of Scholars opposes the recent actions of several law schools that have disciplined faculty members for having pointed to the below average academic performance of black students.
In March 2021, Georgetown Law School dismissed two adjunct professors, Sandra Sellers and David Batson, after the emergence of two recordings of a private conversation in which they expressed their concerns about the performance of black students in a course they were teaching. In 2018, Professor Amy Wax was targeted by the University of Pennsylvania Law School dean because of a 2017 podcast in which she said, “I don't think I've ever seen a black student graduate in the top quarter of the class, and rarely, rarely in the top half.” She also stated, based on 20 years of teaching, that only two or three black students earned grades in the top half of her required first-year civil procedure class. As a result, Wax was prohibited from teaching her first-year course.
These incidents stand out because they communicate the climate of censorship on racial disparities and the widespread willingness of American legal education to misrepresent facts. At Case Western Reserve Law School (CWRU), for example, at a meeting between the faculty and the Black Law Students Association, a dean said that he did not believe that the grades of Black students at CWRU are all at the bottom of the class. Sellers' statement was vilified as racist, though none of the accusers took the extra step of verifying the accuracy of the professor's conversation. In 2004, the Stanford Law Review reported that among elite law schools, “only 8 percent of first-year black students were in the top half of their class."
Law school faculty members who draw attention to these issues, even in private conversations, are now at risk of disciplinary consequences or, as in the Georgetown case, dismissal. This is an outrageous violation of both academic freedom and due process. In none of the reported cases was there evidence of inaccuracy or of racial animus. The abiding question is whether law schools are dealing honestly with their applicants and their students. Ample evidence has emerged in the studies by Richard Sanders and other scholars that admitting black students at a lower standard of qualification than other students pose long-term harm to these students, who graduate, pass the bar, and pursue successful legal careers at a lower rate than students matched to the prevailing standards of the law schools to which they are admitted.
Punishing law faculty members for commenting on the consequences of admitting less-qualified black students through aggressive affirmative action policies is testimony to the bad faith of law school administrators, who have access to the facts but generally refuse to acknowledge them. This censorious behavior on the part of law school administrators also fans the flames of racial resentment among “woke” faculty and students, who are often primed to denounce the whole idea of objective standards, grades, and distinctions based on objective merit.
Ultimately, law schools have an obligation to the American public to educate and train students who uphold the integrity of our legal system, including the pursuit of truth. Imposing sanctions against law school faculty for daring to notice and comment on the racial double standards in law schools betrays the public trust.
The unwarranted firing of the two Georgetown law school faculty members reveals the unwillingness of our law schools to come to an honest reckoning with racial disparities in American education. Addressing that deeper problem begins with a willingness to see and to discuss the facts.
Editor's Note: An earlier version of this statement said that the dean of CWRU's statement was vilified as racist without exploration of it's accuracy. It was actually Sellers' statement that was vilified as racist without exploration of the facts.