The visibility of socioeconomic status and class-based affirmative action: A reply to professor sander

Denver University Law Review

Volumn 88, Issue 4, 2011, Pages 861-888

  Wald, Eli ^a  

^a UNIVERSITY OF DENVER   (United States)

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EID: 84865228450     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (259)

1. Richard H. Sander, Class in American Legal Education, 88 DENV. U. L. REV. 631, 663, 668 (2011)
2. Hereinafter Sander, Class in American Legal Education]. Class-based affirmative action has attracted growing attention since the mid 1990s, and Professor Sander has been a leading contri-butor to the discourse.
3. Richard H. Fallon, Jr., Affirmative Action Based on Economic Disadvantage, 43 UCLA L. REV. 1913 (1996)
4. Richard D. Kahlenberg, Class-Based Affirmative Action, 84 CAL. L. REV. 1037 (1996) (Pubitemid 126384875)
5. Deborah C. Malamud, Class-Based Affirmative Action: Les-sons and Caveats, 74 TEX. L. REV. 1847 (1996) (Pubitemid 126393988)
6. Kenneth Oldfield, Social Class-Based Affirmative Action in High Places: Democratizing Dean Selection at America.s Elite Law Schools, 34 J. LEGAL PROF. 307 (2010)
7. Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367, 370, 478-79 (2004)
8. Hereinafter Sander, Systemic Analysis] (assert-ing that the costs of affirmative action imposed on minority students-lower grades and less learn-ing, .higher attrition rates, lower pass rates on the bar, [and subsequently] problems in the job mar-ket.-may outweigh the benefits)
9. Richard H. Sander, Experimenting with Class-Based Affirmative Action, 47 J. LEGAL EDUC. 472 (1997) [hereinafter Sander, Experimenting]
10. Richard H. Sander, The Racial Paradox of the Corporate Law Firm, 84 N.C. L. REV. 1755, 1755, 1819-20 (2006)
11. Hereinaf-ter Sander, Racial Paradox] (arguing that aggressive affirmative action policies implemented by law schools and large law firms result in counterproductive outcomes: minority lawyers with relatively weak academic credentials are being hired but subsequently not promoted
12. Brent E. Simmons, Should Class-Based Affirmative Action Be Substituted for Race-Based Affirmative Action?, 56 GUILD PRAC. 95, 96, 102 (1999)
13. Arguing that class-based affirmative action would be a poor substi-tute for racial-based affirmative action).
14. The discourse has expanded outside of the academic arena to popular venues.
15. Reactions: Is It Time for Class-Based Affirmative Action?, CHRON. HIGHER EDUC. (Dec. 16, 2009), http://chronicle.com/article/Reactions-Is-It-Time-for/ 62615/.
16. Sander, Class in American Legal Education
17. David L. Chambers et al., Michigan's Minority Graduates in Practice: The River Runs Through Law School, 25 LAW & SOC. INQUIRY 395, 495 (2000)
18. Exploring the beneficial effects of desegregating law schools and the legal profession
19. Okianer Christian Dark, Incorporating Issues of Race, Gender, Class, Sexual Orientation, and Disability into Law School Teaching, 32 WILLAMETTE L. REV. 541 (1996)
20. Susan Sturm & Lani Guinier, Learning from Conflict: Reflections on Teaching About Race and Gender, 53 J. LEGAL EDUC. 515 (2003)
21. Stephanie M. Wildman, Privilege and Liberalism in Legal Education: Teaching and Learning in a Diverse Environment, 10 BERKELEY WOMEN'S L.J. 88 (1995).
22. Richard H. Sander, Class in American Legal Education, 88 DENV. U. L. REV. 631, 663, 668 (2011)
23. Hereinafter Sander, Class in American Legal Education.
24. Class-based affirmative action has attracted growing attention since the mid 1990s, and Professor Sander has been a leading contri-butor to the discourse.
25. Richard H. Fallon, Jr., Affirmative Action Based on Economic Disadvantage, 43 UCLA L. REV. 1913 (1996)
26. Richard D. Kahlenberg, Class-Based Affirmative Action, 84 CAL. L. REV. 1037 (1996) (Pubitemid 126384875)
27. Deborah C. Malamud, Class-Based Affirmative Action: Les-sons and Caveats, 74 TEX. L. REV. 1847 (1996) (Pubitemid 126393988)
28. Kenneth Oldfield, Social Class-Based Affirmative Action in High Places: Democratizing Dean Selection at America.s Elite Law Schools, 34 J. LEGAL PROF. 307 (2010)
29. Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367, 370, 478-79 (2004)
30. Hereinafter Sander, Systemic Analysis
31. Assert-ing that the costs of affirmative action imposed on minority students-lower grades and less learn-ing, .higher attrition rates, lower pass rates on the bar, [and subsequently] problems in the job mar-ket.-may outweigh the benefits)
32. Richard H. Sander, Experimenting with Class-Based Affirmative Action, 47 J. LEGAL EDUC. 472 (1997)
33. Hereinafter Sander, Experimenting
34. Richard H. Sander, The Racial Paradox of the Corporate Law Firm, 84 N.C. L. REV. 1755, 1755, 1819-20 (2006)
35. Hereinaf-ter Sander, Racial Paradox] (arguing that aggressive affirmative action policies implemented by law schools and large law firms result in counterproductive outcomes: minority lawyers with relatively weak academic credentials are being hired but subsequently not promoted)
36. Brent E. Simmons, Should Class-Based Affirmative Action Be Substituted for Race-Based Affirmative Action?, 56 GUILD PRAC. 95, 96, 102 (1999)
37. Arguing that class-based affirmative action would be a poor substi-tute for racial-based affirmative action).
38. The discourse has expanded outside of the academic arena to popular venues.
39. Reactions: Is It Time for Class-Based Affirmative Action?, CHRON. HIGHER EDUC. (Dec. 16, 2009), http://chronicle.com/article/Reactions-Is-It-Time-for/ 62615/.
40. Sander, Class in American Legal Education 1, at 631.
41. David L. Chambers et al., Michigan's Minority Graduates in Practice: The River Runs Through Law School, 25 LAW & SOC. INQUIRY 395, 495 (2000)
42. Exploring the beneficial effects of desegregating law schools and the legal profession
43. Okianer Christian Dark, Incorporating Issues of Race, Gender, Class, Sexual Orientation, and Disability into Law School Teaching, 32 WILLAMETTE L. REV. 541 (1996)
44. Susan Sturm & Lani Guinier, Learning from Conflict: Reflections on Teaching About Race and Gender, 53 J. LEGAL EDUC. 515 (2003)
45. Stephanie M. Wildman, Privilege and Liberalism in Legal Education: Teaching and Learning in a Diverse Environment, 10 BERKELEY WOMEN'S L.J. 88 (1995).
46. Sander, Class in American Legal Education, at 666.
47. Richard Lempert, Reflections on Class in American Legal Education, 88 DENV. U. L. REV. 683, 711 (2011).
48. Sander, Class in American Legal Education, at 666.
49. Lempert, at 711
50. When it comes to contributing to diversity within law schools and to social contributions beyond law school, class-based affirmative action may add little of value..).
51. Sander, Class in American Legal Education 1, at 666.
52. In Class in American Legal Education, Sander uses the terms socioeconomic and class interchangeably
53. Response follows his lead.
54. Sander, Class in American Legal Education 1, at 666.
55. Two American Bar Association reports study the experience of perhaps the most visible minority group within the profession, women of color.
56. ABA COMM'N ON WOMEN IN THE PROFESSION, VISIBLE INVISIBILITY, WOMEN OF COLOR IN LAW FIRMS (2006)
57. ARIN N. REEVES, 2008 ABA COMM'N ON WOMEN IN THE PROFESSION, FROM VISIBLE INVISIBILITY TO VISIBLY SUCCESSFUL: SUCCESS STRATEGIES FOR LAW FIRMS AND WOMEN OF COLOR IN LAW FIRMS (2008).
58. [L]ow SES students who attend elite law schools are seeking and will obtain a credential that will allow them to transform their class identity from low to high..).
59. KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS 18 (2006).
60. Yoshino's work on passing and covering is somewhat paralleled by Carbado and Gulati's study of .identity work..
61. Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1260-62 (2000)
62. Exploring a form of covering at the workplace as outsiders respond to stereotyping by altering their work, and sometimes aspects of their personal identities.
63. Both works have generated a significant discourse.
64. Russell K. Robinson, Uncovering Covering, 101 NW. U. L. REV. 1809, passim (2007)
65. Discussing both Yoshino's and Carbado & Gulati's work
66. Moreover, the works have been built upon by scholars exploring the interplay of discrimination, stereotyping and professional identity.
67. Devon W. Carbado & Cheryl I. Harris, The New Racial Preferences, 96 CAL. L. REV. 1139, 1212-13 (2008)
68. Criticizing colorblind-ness as it relates to admissions
69. Suzanne B. Goldberg, Discrimination by Comparison, 120 YALE L.J. 728, 812 (2011)
70. Arguing that comparators are no longer useful tools in workplace discrimination cases
71. Trina Jones, Intra-Group Preferencing: Proving Skin Color and Identity Performance Dis-crimination, 34 N.Y.U. REV. L. & SOC. CHANGE 657, 662-64 (2010)
72. Discussing challenges faced by plaintiffs in intra-group discrimination suits
73. Nancy Leong, Judicial Erasure of Mixed-Race Dis-crimination, 59 AM. U. L. REV. 469, 551 (2010)
74. Arguing that courts should recognize claims of multiracial discrimination.
75. Unlike Sander, I believe that class is often made visible through social interaction.
76. Lisa R. Pruitt, How You Gonna. Keep Her Down on the Farm ⋯ , 78 UMKC L. REV. 1085, 1092 (2010).
77. Ezra Rosser, On Becoming "Professor": A Semi-Serious Look in the Mirror, 36 FLA. ST. U. L. REV. 215, 221 (2009).
78. JEAN JOHNSON ET AL., PUB. AGENDA, WITH THEIR WHOLE LIVES AHEAD OF THEM 4 (2009), available at http://www.publicagenda.org/files/pdf/ theirwholelivesaheadofthem.pdf
79. Finding that a primary reason students drop out of college is that they have to work to support them-selves and their families.
80. Interestingly, while both Sander and Lempert are mindful of the impact of work commitments on the academic achievements of college students
81. Sander, Class in Ameri-can Legal Education 1, at 647
82. Much of the reason for underrepresentation of some groups in law school has to do with low rates of college entrance and completion.
83. This is particularly true for young Hispanics, who often drop out of high school to help support their families..)
84. Lem-pert 11, at 706 (.[A] student who has to work almost a full time job while in school to pay her college tuition may have grades below those of fellow students whose parents paid their way..), both appear to overlook the consequences for law students.
85. Gerald F. Hess, Heads and Hearts: The Teaching and Learning Environment in Law School, 52 J. LEGAL EDUC. 75, 77-79 (2002)
86. Summarizing the research showing that the law school experience is stressful, intensely competitive, time-consuming, and anxiety producing.
87. But see Paul D. Carrington, The Pedagogy of the Old Case Method: A Tribute to "Bull" Warren, 59 J. LEGAL EDUC. 457, 460-61 (2010)
88. Documenting educational reforms meant to reduce student stress, if not time-commitment
89. Clinton W. Shinn, Lessening Stress of the 1L Year: Implementing an Alternative to Traditional Grading, 41 U. TOL. L. REV. 355, 368 (2010) (same).
90. Roger C. Cramton, The Current State of the Law Curriculum, 32 J. LEGAL EDUC. 321, 329 (1982)
91. First-year grades control the distribution of goodies: honors, law review, job placement, and, because of the importance placed on these matters by the law-school culture, even the student's sense of personal worth.
92. Ron M. Aizen, Four Ways to Better 1L Assessments, 54 DUKE L.J. 765, 773-75 (2004)
93. Summarizing the literature on the importance of first-year grades.
94. Sander, Class in American Legal Education 1, at 660.
95. For examples of such policies, see GA. STATE UNIV. COLL. OF LAW, BULLETIN 2010-2011, at 66-68 (2011), available at http://law.gsu.edu/resources/ registrar/College-of-Law- Bulletin-2010-2011.pdf
96. Tuition and Financial Aid, COLUM. L. SCH. (2011), http://www.law. columbia.edu/jd-applicants/admissions/tuition (last visited May 14, 2011).
97. A cost, by the way, that may make socioeconomic preferences quite expensive, perhaps even more expensive than administering racial preference.
98. This is contrary to Sander's position that socioeconomic preferences are going to be easier to administer and entail lower costs that racial-based affirmative action.
99. Sander, Class in American Legal Education 1, at 664-68.
100. Studying means of legitimizing power and authority, Bourdieu has identified three forms of symbolic capital: economic capital (money and property), social capital (social networks) and cultural capital (cultural competence).
101. Pierre Bourdieu, The Forms of Capital, in HANDBOOK OF THEORY AND RESEARCH FOR THE SOCIOLOGY OF EDUCATION 241-58 (John G. Richardson ed., 1986).
102. Following Bourdieu, significant financial aid would contribute to the economic capital of students of lower socioeconomic status, but its impact on social and cultural capital would be more tenuous.
103. Fiona M. Kay, The Social Significance of The World's First Women Lawyers, 45 OSGOODE HALL L.J. 397, 419-20 (2007)
104. For a discussion of the expanding use of the Bourdieusian approach in studies of contemporary law practice.
105. In other words, generous financial aid would likely have little direct impact on one's social and cultural capital.
106. Sander, Class in American Legal Education, at 666.
107. Wald, The Rise and Fall of the WASP and Jewish Law Firms 4, at 1821-25, 1836-42
108. Discussing the experience of lower socioeconomic status Jewish lawyers seeking to get hired and promoted by elite Wall Street law firms
109. THOMAS L. SHAFFER & MARY M. SHAFFER, AMERICAN LAWYERS AND THEIR COMMUNITIES 144-55 (1991)
110. Exploring the experience of blue-collar Italian-American lawyers seeking elite positions).
111. See gen-erally ALFRED LUBRANO, LIMBO-BLUE-COLLAR ROOTS, WHITE-COLLAR DREAMS (2004)
112. Docu-menting the frustrations of .straddlers,.
113. Professionals of blue-collar backgrounds who struggle to fit in the white-collar world.
114. Sander, Class in American Legal Education, at 666.
115. Sander, Systemic Analysis.
116. But see Jesse Rothstein & Albert H. Yoon, Affirmative Action in Law School Admissions: What Do Racial Preferences Do?, 75 U. CHI. L. REV. 649 (2008)
117. Finding only weak empirical support for the mismatch hypothesis.
118. Of course, questions of class, privilege, social capital and cultural capital impact all edu-cational institutions, not only law schools.
119. Caroline Hodges Persell & Peter W. Cookson, Jr., Chartering and Bartering: Elite Education and Social Reproduction, 33 SOC. PROBS. 114, 126 (1985)
120. Liz Thomas, Student Retention in Higher Education: The Role of Institutional Habitus, 17 J. EDUC. POL'Y 423, 427 (2002).
121. James S. Coleman, Social Capital in the Creation of Human Capital, 94 AM. J. SOC. 95, 100-01 (1988)
122. Exploring the use of social capital through demonstrating its effect in the family and in the community in aiding the formation of human capital.
123. Bourdieu, at 249.
124. See generally RONALD S. BURT, STRUCTURAL HOLES: THE SOCIAL STRUCTURE OF COMPETITION 8-13 (1992)
125. Discussing how the different types of capital are invested to create a .profit.
126. JEREMY BOISSEVAIN, FRIENDS OF FRIENDS: NETWORKS, MANIPULATORS AND COALITIONS 83-96 (1974)
127. Discussing different factors that add to a person's network
128. Mark S. Granovetter, The Strength of Weak Ties, 78 AM. J. SOC. 1360, 1378 (1973)
129. Demonstrating that weak connections among groups of people are .indispensable to individuals' opportunities and to their integration into communities.
130. Craig Calhoun, Habitus, Field, and Capital: The Question of Historical Specificity, in BOURDIEU: CRITICAL PERSPECTIVES 61, 70 (Craig Calhoun et al. eds., 1993)
131. NAN LIN, SOCIAL CAPITAL: A THEORY OF SOCIAL STRUCTURE AND ACTION 14-17 (Mark Granovetter ed., 2001).
132. Some legal scholars have discussed social and cultural capital, as well as other forms of capital, in terms of .professional capital.
133. Carole Silver, The Variable Value of U.S. Legal Education in the Global Legal Services Market, 24 GEO. J. LEGAL ETHICS 1, 3-4 (2011)
134. Nancy J. Reichman & Joyce S. Sterling, Recasting the Brass Ring: Deconstructing and Reconstructing Workplace Opportunities for Women Lawyers, 29 CAP. U. L. REV. 923, 942 n.59 (2002)
135. Profes-sional assets accrue from a combination of human capital, social capital, and cultural capital and are the =stuff' from which advancement occurs. Human capital is operationalized as the specific lawyer-ing skills acquired through both legal education and practice experience.
136. Social capital consists of individuals' ability to draw on relationship networks for establishing support.
137. Although this network may initially consist of other lawyers in the firm, it may then expand to lawyers in the community and, in turn, expand to the acquisition of clients.
138. Theorists such as Bourdieu suggest that success in careers results from the accumulation of these forms of capital..).
139. Fiona M. Kay & John Hagan, Cultivating Clients in the Competition for Partnership: Gender and the Organizational Restructuring of Law Firms in the 1990s, 33 LAW & SOC'Y REV. 517, 542 (1999)
140. See Fiona M. Kay & John Hagan, Raising the Bar: The Gender Stratification of Law-Firm Capital, 63 AM. SOC. REV. 728, 737 (1998)
141. Ronit Dinovitzer, Social Capital and Con-straints on Legal Careers, 40 LAW & SOC'Y REV. 445, 445-47, 451-52 (2006)
142. Bryant G. Garth & Joyce Sterling, Exploring Inequality in the Corporate Law Firm Apprenticeship: Doing the Time, Finding the Love, 22 GEO. J. LEGAL ETHICS 1361, 1368 (2009).
143. JOHN P. HEINZ ET AL. URBAN LAWYERS: THE NEW SOCIAL STRUCTURE OF THE BAR 69 (2005).
144. John Hagan, The Gender Stratification of Income Inequality Among Lawyers, 68 SOC. FORCES 835, 837 (1990)
145. Jo Dixon & Carroll Seron, Stratification in the Legal Profession: Sex, Sector and Salary, 29 LAW & SOC'Y REV. 381, 382 (1995).
146. David B. Wilkins, Doing Well by Doing Good? The Role of Public Service in the Careers of Black Corporate Lawyers, 41 HOUS. L. REV. 1, 27 (2004)
147. Arguing that for black lawyers, a lack of social capital in the form of elite networks maintains or reinforces their disadvantage in the pro-fession).
148. John Hagan et al., Cultural Capital, Gender and the Structural Transformation of Legal Practice, 25 LAW & SOC'Y REV. 239, 239-44 (1991).
149. Lucille A. Jewel, Bourdieu and American Legal Education: How Law Schools Reproduce Social Stratification and Class Hierarchy, 56 BUFF. L. REV. 1155, 1174 (2008).
150. Timothy T. Clydesdale, A Forked River Runs Through Law School: Toward Understand-ing Race, Gender, Age, and Related Gaps in Law School Performance and Bar Passage, 29 LAW & SOC. INQUIRY 711, 727-32 (2004).
151. Suggesting that over time law school prestige will tend to matter less for large law firm hiring decisions
152. David Wilkins et al., Urban Law Schools Graduates in Large Law Firms, 36 SW. U. L. REV. 433, 442 (2007)
153. Show-ing that outsider graduates, even of elite law schools, found employment in large law firms only when they had the appropriate social capital.
154. Critical scholars have compellingly deconstructed the notion of objective merit and ex-posed its inherent reliance on social and cultural factors.
155. Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953, 956-58 (1996).
156. Cf. Sari Bashi & Maryana Iskander, Why Legal Education is Failing Women, 18 YALE J.L. & FEMINISM 389, 391-92 (2006)
157. Exploring the experience of female law students at Yale Law School, and specifically investigating why female students, with similar credentials to their male counterparts, participate less in class discussion and are less likely to form professionally beneficial relationships with faculty members).
158. Some argue that merit and social capital are so inherently intertwined that it is impossible to understand one without the other, that is, that defining and assessing .merit. by some set of so-called objective criteria without exploring it in context is misleading and undesirable.
159. Margaret Y. K. Woo, Reaffirming Merit in Affirmative Action, 47 J. LEGAL EDUC. 514, 515 (1997)
160. Arguing that merit analysis must include considerations such as motivation, maturity and persever-ance).
161. Ronit Dinovitzer & Bryant G. Garth, Lawyer Satisfaction in the Process of Structuring Legal Careers, 41 LAW & SOC'Y REV. 1, 10 (2007)
162. [S]chools are a key site through which students acquire their professional expectations-schools thereby play a critical role in the reproduction of social stratification, with students not merely acquiring the skills they require for professional life, but perhaps more trenchant, adapting to the dispositions necessary for the professional roles they are destined to take. This can be achieved because schools are themselves embedded in the reproduction of students' social origins: the prestige of the school that individuals attend is itself a function of their social class, so that in bestowing degrees and credentials, schools confirm and reaffirm students' anticipated status within the profession.
163. Research on law schools ⋯ indeed establishes that these are key sites in the development of students' expectations and aspirations.. (citation omitted))
164. Rebecca L. Sandefur, Staying Power: The Persistence of Social Inequality in Shaping Lawyer Stratification and Lawyers.
165. Persistence in the Profession, 36 SW. U. L. REV. 539, 545 (2007)
166. Professional de-grees play an important role in social mobility and in the social reproduction of the American upper-middle class.
167. DEBRA J. SCHLEEF, MANAGING ELITES: PROFESSIONAL SOCIALIZATION IN LAW AND BUSINESS SCHOOLS 44 (2006).
168. David B. Bills, Credentials, Signals, and Screens: Explaining the Relationship between Schooling and Job Assignment, 73 REV. OF EDUC. RES. 441 (2003).
169. SHAFFER & SHAFFER 45, at 127-64
170. Arguing that blue-collar lawyers feature a particularly strong work ethic.
171. Wald, The Rise and Fall of the WASP and Jewish Law Firms, at 1837.
172. Eli Wald, The Rise of the Jewish Law Firm or Is the Jewish Law Firm Generic?, 76 UMKC L. REV. 885, 928 (2008).
173. Sander and Lempert are not alone in failing to notice and explore the consequences of the visibility of socioeconomic status. Kenji Yoshino, who popularized the terms passing and covering, has been criticized for failing to explore class and privilege as aspects of identity that people often attempt to cover.
174. Paul Horwitz, Uncovering Identity, 105 MICH. L. REV. 1283, 1294-96 (2007).
175. Sander, Class in American Legal Education, at 666.
176. JOHN H. MCWHORTER, LOSING THE RACE: SELF-SABOTAGE IN BLACK AMERICA 229 (2000)
177. Noting that affirmative action .creates private doubt,. depriving its recipients of .the unal-loyed sense of personal, individual responsibility for their accomplishments.
178. John E. Morrison, Colorblindness, Individuality, and Merit: An Analysis of the Rhetoric Against Affirmative Action, 79 IOWA L. REV. 313, 331 (1994)
179. Affirmative action is wrong because its beneficiaries, by definition, cannot meet the standards and cannot do the work.
180. Paul Butler, Affirmative Action and the Criminal Law, 68 U. COLO. L. REV. 841, 856 (1997)
181. Some critics of affirmative action argue that its pervasiveness has caused successful minorities to suffer a stigma: The belief that minority achievements are the result of affirmative action, not individual merit
182. Others, however, have discounted the impact of stigma on recipients of affirmative action.
183. Randall Kennedy, Commentary, Persuasion and Distrust: A Comment on the Affirmative Action Debate, 99 HARV. L. REV. 1327, 1331 (1986)
184. CHRISTOPHER EDLEY. JR., NOT ALL BLACK AND WHITE: AFFIRMATIVE ACTION AND AMERICAN VALUES 81 (1996)
185. [A]ffirmative action has a cost ⋯ [and] part of the cost is the risk of stigma ⋯ [however,] the stigma I may suffer is a small price compared to the price I would pay if I faced closed doors ⋯ ..).
186. In his autobiography, Justice Clarence Thomas described the process of his job search after law school as humiliating, having experienced the stigma and bias of affirmative action first hand.
187. CLARENCE THOMAS, MY GRANDFATHER'S SON: A MEMOIR 86-87 (2007).
188. Malamud 6, at 735 (.Sander should acknowledge that very-low-SES students might well experience some of the down-sides he insists accompany race-based affirmative ac-tion..).
189. Sander suggests that students benefiting from socioeconomic preference may not be aware that they received such a preference.
190. Sander, Class in American Legal Education, at 666.
191. This suggestion is naïve: public universities that would implement class-based affirmative action in conjunction with their admissions policies would be subject to regulations requiring them to disclose their admission policies. Moreover, as noted by Justice Ginsburg in her dissent in Gratz v. Bollinger
192. If honesty is the best policy, surely Michigan's accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.
193. 539 U.S. 244, 305 (2003) (Ginsburg, J., dissenting).
194. Sander, Class in American Legal Education, at 655.
195. Deborah C. Malamud, Affirmative Action, Diversity, and the Black Middle Class, 68 U. COLO. L. REV. 939, 988-97 (1997)
196. Arguing that alternatives to racial-based affirmative action are unattractive even if such policies tend to benefit minorities of higher socioeconomic status.
197. Denis Binder, The Changing Paradigm in Public Legal Education, 8 LOY. J. PUB. INT. L. 1, 10-15 (2006)
198. Documenting the law school tuition .explosion.
199. John A. Sebert, The Cost and Financing of Legal Education, 52 J. LEGAL EDUC. 516, 516-19 (2002)
200. William K.S. Wang, The Restructuring of Legal Education Along Functional Lines, 17 J. CONTEMP. LEGAL ISSUES 331, 333 (2008)
201. Summarizing available data on law school tuition increases.
202. Eli Wald, Foreword, The Great Recession and the Legal Profession, 78 FORDHAM L. REV. 2051, 2051-52 (2010).
203. William Henderson has documented the distribution of lawyers' starting salaries, concluding
204. For many, getting a JD is a very risky financial proposition ⋯ .. Bill Hender-son, Distribution of 2006 Starting Salaries: Best Graphic Chart of the Year, EMPIRICAL LEGAL STUDIES, (Sept. 4, 2007, 3:29 PM), http://www.elsblog.org/the-empirical-legal-studi/2007/ 09/distribution-of.html.
205. David Segal, Is Law School a Losing Game?, N.Y. TIMES, January 9, 2011, at BU1, available at http://www.nytimes.com/2011/01/09/business/09law.html?src= me&ref=general.
206. THOMAS PAINE, COMMON SENSE 45, 98 (Isaac Kramnic ed., Penguin Classics 1986) (1776).
207. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 302-11 (Arthur Goldhammer trans., Libr. of Am. 2004) (1835)
208. Analyzing the practice of law in the United States and discussing the integral role played by the law and lawyers in American society.
209. Robert W. Gordon, .The Ideal and the Actual in the Law": Fantasies and Practices of New York City Lawyers, 1879-1910
210. THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 51, 51-57
211. Gerald W. Gawalt ed., 1984
212. Exploring the elevated role and status of lawyers in American society.
213. Russell G. Pearce, Lawyers as America.s Governing Class: The Formation and Dis-solution of the Original Understanding of the American Lawyer.s Role, 8 U. CHI. L. SCH. ROUNDTABLE 381, 383 (2001).
214. Sander, Systemic Analysis 1, at 371-72, 478.
215. Sander, Class in American Legal Education 1, at 666.
216. David B. Wilkins, Response, A Systematic Response to Systemic Disadvantage: A Re-sponse to Sander, 57 STAN. L. REV. 1915, 1919 (2005).
217. David B. Wilkins, Rollin' on the River: Race, Elite Schools, and the Equality Para-dox, 25 LAW & SOC. INQUIRY 527, 554 (2000).
218. Sander, Class in American Legal Education 1, at 665-67.
219. Interestingly, Yoshino, although popularizing the ideas of .passing. and .covering,. missed this very point, assuming that passing and covering are always coerced and therefore unde-sirable.
220. Arguing that social capital is not inherently positive or negative.
221. Documenting the choice of some Jewish lawyers to opt out of competing for a position with the elite WASP firms.
222. LANI GUINIER ET AL., BECOMING GENTLEMEN: WOMEN, LAW SCHOOL, AND INSTITUTIONAL CHANGE 28-29 (1997)
223. Bashi & Iskander, at 391-92, 403, 409
224. De-spite gender parity in entering J.D. classes, law schools are not adequately preparing female law students for success ⋯ .
225. As individuals, law school professors treat women differently from men, and as institutions, law schools cultivate and reward patterns of behavior that are more likely to be found among men than among women ⋯ ..)
226. Paula Gaber, "Just Trying to Be Human in This Place": The Legal Education of Twenty Women, 10 YALE J.L. & FEMINISM 165, 166-70 (1998)
227. Analyzing the experience women were having in law school and how their conscious career paths may affect their experiences
228. Beth Goldstein, Little Brown Spots on the Notebook Paper: Women as Law School Students, 84 KY. L.J. 983, 1004-07 (1996)
229. Presenting the narrative experiences of sixteen women involved in law school retention programs
230. Lani Guinier et al., Becoming Gentle-men: Women's Experiences at One Ivy League Law School, 143 U. PA. L. REV. 1, 4-5 (1994)
231. Cathe-rine Weiss & Louise Melling, The Legal Education of Twenty Women, 40 STAN. L. REV. 1299, 1299-1302 (1998)
232. Discussing the experiences of women law students in the 1980s and examining the premise that "women experience law school differently" than men.
233. See Eli Wald et al., Looking Beyond Gender: Women.s Experience at Law School 41 (Univ. of Denver Sturm Coll. of Law Legal Research Series, Working Paper No. 11-04, 2011), available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id=1757882.
234. See Chris Chambers Goodman, Retaining Diversity in the Classroom: Strategies for Maximizing the Benefits that Flow from A Diverse Student Body, 35 PEPP. L. REV. 663, 703 (2008)
235. Exploring strategies for effective incorporation of and retention of diversity in law schools beyond the admission stage.
236. Eli Wald, A Primer on Diversity, Discrimination and Equality in the Legal Profession or Who is Responsible for Pursuing Diversity and Why, 24 GEO. J. LEGAL ETHICS 1079 (2011)
237. Explor-ing various justifications for diversity applicable to lawyers and the legal profession.
238. I thank my colleague Alan Chen for suggesting this example.
239. Angela Onwuachi-Willig & Amber Fricke, Class, Classes, and Classic Race-Baiting: What.s in a Definition?, 88 DENV. U. L. REV. 807, 825 (2011)
240. Criticizing Sander's characterization of invisibility as desirable and noting that
241. [b]ecause [a] low-SES, white student could remain invisible, his classmates never had the opportunity to learn from him ⋯.)
242. Deirdre M. Bowen, Meeting Across the River: Why Affirmative Action Needs Race & Class Diversity, 88 DENV. U. L. REV. 751, 782 n.180 (2011)
243. Sander also touts the invisibility of SES preferences.
244. I am not sure if those who lived in the type of poverty that Sander's SES preferences are designed to help would necessarily agree..
245. Internal citations omitted.
246. Lempert does concede that .some students from lower class backgrounds with elite un-dergraduate educations make distinct contributions to a law school's education environment which students from more advantaged backgrounds could not or would not make
247. Howewer, Lempert .still maintain[s] that with respect to diversity standpoint an elite law school is likely to get fewer benefits from admitting more lower SES students than one might expect.. Lempert, at 712 n.85.
248. As is likely obvious by now, I believe Lempert underestimates the value of class diversity.
249. 539 U.S. 306 (2003).
250. Alterations in original) (emphasis added) (citations omitted).
251. AM. BAR ASS'N, PRESIDENTIAL DIVERSITY INITIATIVE, DIVERSITY IN THE LEGAL PROFESSION: THE NEXT STEPS (Apr. 2010) at 9.
252. William H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones.s Case, 50 MD. L. REV. 213 (1991)
253. Eli Wald, Taking Attorney-Client Communications (and There-fore Clients) Seriously, 42 U.S.F. L. REV. 747 (2008).
254. For a recent thought-provoking challenge to simplistic ways of thinking about what it means to be and appropriately act like a minority
255. TOURÉ, WHO'S AFRAID OF POST-BLACKNESS?: WHAT IT MEANS TO BE BLACK NOW (2011).
256. Sander, Class in American Legal Education, at 632, 664.
257. Sander, Systemic Analysis, at 481
258. Sander, Racial Paradox, at 1773-76.
259. Likewise, and contrary to Lempert's position, to the extent that class-based affirmative action imposes significant costs on its recipients and non-recipients, law schools ought not to aban-don class preferences, rather, they need to enhance the educational experience of lower socioeco-nomic minorities.