Class privilege in legal education: A response to sander

Denver University Law Review

Volumn 88, Issue 4, 2011, Pages 729-750

  Malamud, Deborah C ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 84866353516     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (136)

1. I make this assumption without conceding that the imperative for socioeconomic integration in the United States is as strong as the imperative for racial integration (let alone stronger, which one might take to be Sander's assumption). It remains my view that race-based differences in opportunity "weigh[] [more] heavily on the moral scale" than do purely class-based differences.
2. Deborah C. Malamud, Affirmative Action, Diversity, and the Black Middle Class, 68 U. COLO. L. REV. 939, 993 (1997).
3. For a strong philosophical defense of the importance of race-based integration and of affirmative action as a means of achieving and maintaining it
4. ELIZABETH ANDERSON, THE IMPERATIVE OF INTEGRATION 112-16, 148-54 (2010).
5. The question of the place of mixed-race and immigrant students, especially black students (given the larger "plus" diversity programs offer to black applicants), in an integrationist narrative (particularly one which, like Anderson's, is rooted in historical, durable group-based inequalities) is a complex one.
6. It is best dealt with in "mend it" rather than "end it" terms.
7. Kevin Brown & Jeannine Bell, Demise of the Talented Tenth: Affirmative Action and the Increasing Underrepresentation of Ascendant Blacks at Selective Higher Educational Institutions, 69 OHIO ST. L.J. 1229, 1277-78 (2008)
8. Arguing for a bright-line rule prioritizing "ascendant blacks" over black/white biracial and black immigrant applicants for affirmative action purposes)
9. Angela Onwuachi-Willig, The Admission of Legacy Blacks, 60 VAND. L. REV. 1141, 1220-21 (2007)
10. Arguing for a standards-based approach, based on the consideration of evidence of black racial self-identification as part of a Grutter-esque full file review of black candidates.
11. It is also important to be aware that "race" and "class" are not the only competitors in the ring, where admissions policies are concerned.
12. There are other diversification values and pressures that might well dominate the higher-education debate in the future.
13. I have in mind, for example, the diversity benefits of enrolling immigrants and foreign students in response to globalization, with the political push-back inherent in the use of preferences for that purpose, should public attention focus on their use.
14. JOHN D. SKRENTNY, THE MINORITY RIGHTS REVOLUTION (2002)
15. Hugh Davis Graham, The Origins of Affirmative Action: Civil Rights and the Regulatory State, 523 ANNALS AM. ACAD. POL. & SOC. SCI. 50, 61-62 (1992)
16. Edna Chun & Alvin Evans, Bridging the Diversity Divide: Globalization and Reciprocal Empowerment in Higher Education, 35 ASHE HIGHER EDUC. REPORT, no.1, 2009, at 9-11
17. Discussing globalization, but, oddly, using it as a justification for traditional race-based diversity efforts).
18. I am not "on record" in relation to the debate on Sander's critique of race-based affirmative action in law schools.
19. Consistent with the premise of my Response, I will not use this short contribution as an occasion to enter that debate.
20. In my own work, I have acknowledged that the diversity rationale pushes institutions towards a focus on their own institutional goals, rather than on the consequences of affirmative action for the lives of its intended beneficiaries.
21. Malamud, at 958-59.
22. I believe Sander has made it impossible (and rightfully so) to ignore those consequences-although I am more persuaded by his critics on the merits of the question of what those consequences are in fact.
23. Deborah C. Malamud, Class-Based Affirmative Action: Lessons and Caveats, 74 TEX. L. REV. 1847, 1848 (1996).
24. Richard H. Sander, Class in American Legal Education, 88 DENV. U. L. REV. 631, 664 (2011).
25. Richard Kahlenberg's scholarship is motivated, as is Sander's, by a critique of racebased affirmative action.
26. William Bowen's is not. One of the main sources Sander cites as "encouraged by" Kahlenberg in fact concludes that both minorities and low-SES students are underrepresented in elite undergraduate schools, and that both class-based and race-based affirmative action are appropriate.
27. Anthony P. Carnevale & Stephen J. Rose, Socioeconomic Status, Race/Ethnicity, and Selective College Admissions, in AMERICA'S UNTAPPED RESOURCE: LOWINCOME STUDENTS IN HIGHER EDUCATION (Richard Kahlenberg ed., 2004)
28. It would be helpful to have more complete data on the SES-redistributive effects of the UCLA program.
29. Elsewhere, Sander distinguishes (at the top) between the top decile and top quartile, and (at the bottom) between the bottom and second quartiles.
30. This is in part because of the "unique factor" of California's "substantial number of low-SES, high-achieving Asian students, many of them immigrants or the children of immigrants." Id. at 663 n.88.
31. Race-based affirmative action preferences in favor of immigrants are not popular in this country.
32. It is unclear-but seems unlikely-that socioeconomic preferences for immigrants because of the short-term disadvantages inherent (for many families) in immigration would be any more popular.
33. For seven years I served as the Faculty Director of the AnBryce Scholarship Program at New York University Law School, which has done precisely that, and now enrolls approximately ten low-SES Scholars a year with full-tuition remission and programmatic support.
34. Richard H. Pildes, An Introduction to the NYU Journal of Law and Liberty Symposium, "The Unknown Justice", 4 N.Y.U. J. L. & LIBERTY 475, 476 (2009) Describing the AnBryce Scholarship Program). I am not aware of similar programs at our peer law schools.
35. See Sander, 4, at 666-68
36. Richard Sander, "From the Trenches and Towers," The Tributaries to the River, 25 LAW & SOC. INQUIRY 557, 562-63 (2000).
37. Targeting the highest-SES blacks for exclusion has some adverse consequences, of course.
38. Since the highest-SES blacks will tend to need the smallest preferences and suffer the smallest performance shortfalls, it should be obvious that by excluding them, the average performance numbers of the black student population will drop.
39. That is why schools, when they can, prefer higher-SES blacks.
40. It's not that they are insensitive to race-plus-class inequality, or that they actually prefer mixed-race or African-immigrant blacks to "ascendent blacks."
41. Brown & Bell, at 1245-55
42. Explaining the increasing percentage of black/white biracials and black immigrants on college campuses and the underrepresentation of ascendent blacks in selective educational programs.
43. They just want to get past the bad days of black students being clustered at the bottom of the class so that race will be less stigmatizing.
44. This thought experiment parallels the clever handicapped-parking riff credited to economist George Akerlof: Suppose that one parking space in front of a popular restaurant is reserved for disabled drivers.
45. Many of the nondisabled drivers who pass by the space while circling the parking lot in search of a place to park may be tempted to think that they would have an easier time finding a space if the space had not been reserved. Although eliminating the space would have only a minuscule effect on the average parking search for nondisabled driv ers, the cumulative cost perceived by each passing driver is likely to exceed the true cost simply because people have a difficult time thinking about small probability events.
46. Thomas J. Kane, Racial and Ethnic Preferences in College Admissions, 59 OHIO ST. L.J. 971, 992-993 (1998).
47. Here, I believe Sander is promoting a distorted assessment of how many handicapped parking spaces there really are in the shopping mall parking lots, rather than of the chances that you, driving around, will actually land one.
48. The comparative figure for whites is 18%-a huge difference.
49. Sander, at 651 tbl.8.
50. Deborah C. Malamud, Assessing Class-Based Affirmative Action, 47 J. LEGAL EDUC. 452, 456-58 (1997).
51. Of course, Sander acknowledges that black students class-diversify even the top decile.
52. Note that this assumes that all top-decile black students in top-20 schools received racial preferences in admissions, an assumption I am prepared to make only for purposes of this analysis.
53. In fact, even as to top 10 schools, it was never the University of Michigan's claim that black enrollment would drop to zero without affirmative action. Over time, one hopes that the number of black students (some, if not most, of whom would be top-SES decile) who would qualify for admission with no consideration given to diversity will rise-although even Justice O'Connor now acknowledges that 25 years is better seen as a call to action than as a sunset date.
54. Sandra Day O'Connor & Stewart J. Schwab, Affirmative Action in Higher Education over the Next Twenty-Five Years: A Need for Study and Action, in THE NEXT 25 YEARS: AFFIRMATIVE ACTION IN HIGHER EDUCATION IN THE UNITED STATES AND SOUTH AFRICA 58, 61-62 (David L. Featherman et al. eds., 2010).
55. As to the lowest-SES students, I do not think he is.
56. Sander measures costs in diminished bar passage rates.
57. Sander, at 662-63.
58. It may well be that SES disadvantage that comes from immigrant status is less stigmatizing than SES disadvantage attached to multigenerational poverty in the U.S. If that is the case, classbased affirmative action that disproportionately favors low-SES immigrants (or low-SES foreign students) may be the equivalent of race-based affirmative action that disproportionately benefits foreign-born or mixed-race blacks.
59. We may need a concept of "legacy"-class to match the concept of "legacy"-race.
60. Cf. Onwuachi-Willig, 1 at 1157-60
61. Lisa A. Harrison et al., The Consequences of Stereotype Threat on the Academic Performance of White and Non-White Lower Income College Students, 9 SOC. PSYCHOL. OF EDUC. 341 (2006) (finding stereotype threat in lower-income students, but not middle-income students)
62. Taniesha A. Woods et al., The Development of Stereotypes About the Rich and Poor: Age, Race, and Family Income Differences in Beliefs, 34 J. YOUTH & ADOLESCENCE 437 (2005) (finding that youth of all classes believe that rich children are better at academics).
63. Eli Wald, The Visibility of Socioeconomic Status and Class-Based Affirmative Action: A Reply to Professor Sander, 88 DENV. U. L. REV. 861 (2011).
64. The factors outside their control, of course, dwarf those inside-a fact no less true of class-based inequality in the United States than of race-based inequality.
65. O'Connor & Schwab 18, at 62.
66. I view applicant-pool issues as more outside than inside their control, although better outreach would be helpful. See text accompanying note 30.
67. I am not claiming here that these schools give "preferences" of any mechanical sort to low-SES students, or that, in the sense in which Carnevale & Rose use the term, they "actively recruit" low-SES students.
68. I am claiming, however, that they take low SES into account when assessing applications from students who take advantage of the opportunity to be self-reflective about their backgrounds.
69. Cf. Carnevale & Rose 4, at 122
70. Discussing popular views on preferences for children of "low-income" versus "high-income" families, but not discussing trade-offs between high- and middle-income families.
71. Even as to low-income versus high-income tradeoffs, there is majority public support for the tradeoff only if test scores are dead equal. Id. at 125. So much for Robin Hood.
72. Sigal Alon & Marta Tienda argue, with respect to undergraduate admissions, that class rank is the fairest criterion, given the class effects of relying on SATs.
73. Sigal Alon & Marta Tienda, Diversity, Opportunity, and the Shifting Meritocracy in Higher Education, 72 AM. SOC. REV. 487, 491 (2007).
74. If, as they argue, low-SES students have poor SAT scores because they attend "underperforming, resource-poor schools," it is hard to argue that being at the top of the class in such a school is the equivalent of being at the top of the class in a school with the resources to present a more challenging curriculum.
75. THOMAS J. ESPENSHADE & ALEXANDRIA WALTON RADFORD, NO LONGER SEPARATE, NOT YET EQUAL: RACE AND CLASS IN ELITE COLLEGE ADMISSION AND CAMPUS LIFE 260 (2009)
76. Arguing that graduate schools recognize the greater difficulty and competition students face at elite schools, and so are willing to admit students with lower class ranks from those schools.
77. I do not believe that there is any easy answer to the question of how to assess aptitude and achievement in the face of inequality of educational inputs.
78. "Relatively well" can be in relation to the elite school's usual LSAT admissions range, in relation to the LSAT scores of other graduates of the same college (reported by LSAC Report Form on the same form that reports the candidate's LSAT score), or in relation to what one might expect from the candidate given her socioeconomic background as reflected in her application.
79. About the Program, TRIALS, http://trials.atfoundation.org/program (last visited April 29, 2011).
80. Cf. Eric Grodsky & Catherine Riegle-Crumb, Those Who Choose and Those Who Don't: Social Background and College Orientation, 627 ANNALS AM. ACAD. POL. & SOC. SCI. 14 (2010)
81. PIERRE BOURDIEU, DISTINCTION: A SOCIAL CRITIQUE OF THE JUDGMENT OF TASTE (Richard Nice trans.) (1984)).
82. Grodsky & Riegle-Crumb 31, at 15
83. Arguing that there is a strong class component to educational habitus but also great individual variation within class.
84. The deterrence problem is one of the critiques of plans like the Texas Ten Percent plan- it rewards students who are at the top of weaker schools, and punishes those who take on tougher curricula and competition at stronger schools but fall outside the top ten percent of the class.
85. Grade inflation at top feeder schools is hardly a secret.
86. ESPENSHADE & RADFORD 28, at 260-61 n.54-55
87. Reporting that 65% of Princeton grads have B+ GPAs and above, and half of Harvard grads have GPAs in the A-minus/A range).
88. It is important to note that there are two components to this problem: the applicant pool and the admissions decision.
89. On applicant pool issues at the undergraduate level
90. Dawn Koffman & Marta Tienda, Missing in Application: The Texas Top 10% Law and Campus Socioeconomic Diversity 23 (March 2008) (paper presented at the 2008 Meetings of the American Educational Research Association), available at http://theop.princeton.edu/reports/wp/ApplicantSocialClass.pdf
91. [C]hanges in admission criteria designed to broaden college access for low-income students, such as eliminating the SAT filter or guaranteeing admission to top-performing students, will not alter the socioeconomic composition of college campuses unless the applicant pool is changed.").
92. Koffman & Tienda 35, at 25 (showing sharp downward shift in students at top 50 state flagship campuses receiving Pell grants).
93. Recent studies suggest that it is middle-class students, not low-income students, who are most likely to choose state flagships over highly selective private universities.
94. They are the ones most likely to be crowded out by higher-SES students seeking bargains they don't need.
95. ESPENSHADE & RADFORD, at 296
96. cf. Koffman & Tienda, at 20-21
97. Noting that, post 10% plan, 22% of top-ten students apply to the University of Texas from poor high schools, versus 44% from high schools in the top-decile of wealth, and puzzling over why, "despite the admission guarantee in effect since 1998, the socioeconomic composition of the applicant pool to [the University of Texas' two flagship campuses] has barely changed," and why Rice University, a more expensive private school, gets a higher share of low-income applicants than do the public flagships).
98. The LSAC does not have socioeconomic information on LSAT-takers, which means that schools have no way of using LSAC searches to identify promising lower-SES candidates.
99. Such ties might explain, for example, Supreme Court justices' rare but important deviations from the monopoly of a handful of top feeder law schools in their hiring of law clerks.
100. When a justice makes an unprecedented hire, "cherchez le (former) clerk" on the "new" school's faculty.
101. Elite schools would also need to make sure that transfer students have the opportunity to join prestigious journals, and their placement offices would need to advocate for their transfer students in the all-important 2L summer-hiring and judicial-clerkship markets.
102. Otherwise, the greater opportunities that come from elite-school attendance would be illusory for transfer students. And, of course, law schools using a transfer strategy would need to make their full array of financial-aid options available to transfer students.
103. I expect that most elite schools would need to change their policies to achieve these goals.
104. If one cares about comparisons of relative privilege within Sander's broad SES criteria, legacy preferences are more problematic in elite law schools with steady (or declining) prestige rankings than in those whose rankings have markedly risen in the years between the parent's graduation and the child's application
105. Grutter v. Bollinger, 539 U.S. 306, 337 (2003).
106. This sounds harsh, but I come from a middling-SES background myself and know first hand how strong the leveling tendencies within it can be.
107. Sander, at 643 (discussion of Warkov's data).
108. Rising tuition costs is an obvious "other development" that has tended to neutralize the class-diversifying effects of student loan availability and affirmative-action admissions policies.
109. The Free Application for Federal Financial Aid includes website's Q and A on financial independence states that law school applicants are deemed financially independent for purposes of federal loans.
110. The FAFSA form questions on parental income and assets, and law schools require financial aid applicants to fill out the form.
111. For purposes of school-provided grant-based aid, schools are free to make their own determinations of whether applicants are financially independent of their parents.
112. David Segal, Law Students Lose the Grant Game as Schools Win, N.Y. TIMES, April 30, 2011
113. Discussing renewability criteria for merit-based aid
114. Mark Hansen, Boxer Presses ABA on Law School Data Reporting, ABA JOURNAL, March 23, 2011.
115. Cf. Carnevale & Rose 4, at 120
116. showing increase in the percentage of undergraduate students at all four-year colleges whose "need" was not met.
117. ESPENSHADE & RADFORD, at 267
118. 42 percent of college graduates who do not pursue graduate school blame student loan debt
119. The question of whether students who blame debt for their decisions are, in fact, actually motivated by debt, is a tricky one.
120. Cf. David L. Chambers, The Burdens of Educational Loans: The Impacts of Debt on Job Choice and Standards of Living for Students at Nine American Law Schools, 42 J. LEGAL EDUC. 187, 227 (1992).
121. Here the data are staggering. Espenshade & Radford report that 23% of graduates of fouryear public colleges graduate with too much debt to repay their loans by working as teachers, and 37% borrow too much to work as social workers.
122. ESPENSHADE & RADFORD, at 266
123. The figures for four-year private colleges are 38% and 55% respectively.
124. Catherine Rampell, At Well-Paying Law Firms, A Low-Paid Corner, N.Y. Times, May 23, 2011
125. Noting that some elite law firms are hiring "career associates" at markedly lower salaries (e.g., $50,000-$60,000, versus $160,000
126. Which "make it even more difficult for newly minted lawyers to pay off their law school debt").
127. The same calculations would be made by a "rational" applicant faced with the differential loan burdens of schools with different costs.
128. On the latter score, if female students are prescient in their decisionmaking, they may be aware that the high-income pot at the end of the elite-school rainbow-the "big law" job-requires much the same set of tradeoffs, for reasons of lack of time rather than lack of resources.
129. There is an extensive economics literature on the return to elite higher education.
130. For a subtle attempt to pin down effects at the undergraduate level (albeit one based on 1970s data)
131. Stacy Berg Dale & Alan B. Krueger, Estimating the Payoff to Attending a More Selective College: An Application of Selection on Observables and Unobservables 29-31 (Nat'l Bureau of Econ. Research, Working Paper No. 7322, 1999), available at http://www.nber.org/papers/7322.
132. Cf. Grodsky & Riegle-Crumb 31, at 15
133. Arguing that habitus changes as people encounter fields inconsistent with their worldviews).
134. This is the case with NYU's AnBryce Program. As a matter of classification, the NYU Law School's AnBryce Program would likely be defined as merit-based rather than need-based. Eligibility is not based on "need" in the financial-aid-formula sense, but on personal and family socioeconomic considerations more broadly defined.
135. Schools could, of course, offer merit-based financial aid that finds "merit" in students from more modest SES backgrounds.
136. At least from my exposure to faculty hiring and programmatic innovation in elite law schools, middling-SES students are likely hurt by the fact that the kinds of legal issues middle class families face-labor/employment law, family law, consumer bankruptcy, ordinary torts, domestic real estate issues-are not the kinds of "sexy" issues that elite schools call attention to in their programming and faculty hiring.