Class in American legal education

Denver University Law Review

Volumn 88, Issue 4, 2011, Pages 631-682

  Sander, Richard H ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84866410312     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (193)

1. LAW SCH. ADMISSION COUNCIL, LAW SCHOOL ADMISSIONS, 1984-2001: SELECTING LAWYERS FOR THE TWENTY-FIRST CENTURY (Walter B. Raushenbush ed., 1986) (containing a series of papers, speeches, and discussions largely revolving around the issue of diversifying the legal profession).
2. Robert Zelnick, Accreditation and Affirmative Action (Sept. 11, 2008) (unpublished manuscript) (discussing the ABA's battle with George Mason University Law School over its lack of racial diversity), available at http://seaphe.org/pdf/zelnick-accreditation.pdf.
3. ABA accreditation committees, as documented in this battle and in my other interactions with the process, are consistently concerned about racial diversity but give no attention whatsoever to socioeconomic diversity
4. The various institutions that have been established to, in part, gather information helpful to the legal academy-such as the Law School Admissions Council, the National Association for Law Placement, the American Association of Law Schools, and the American Bar Foundation-all gather extensive data related to race, but none, so far as I am aware, gather any systematic data about class or socioeconomic status among law students, law faculties, or lawyers.
5. RICHARD D. KAHLENBERG, THE REMEDY: CLASS, RACE, AND AFFIRMATIVE ACTION (1996).
6. Anthony P. Carnevale & Stephen J. Rose, Socioeconomic Status, Race/Ethnicity, and Selective College Admissions, in AMERICA'S UNTAPPED RESOURCE: LOW-INCOME STUDENTS IN HIGHER EDUCATION 106 tbl.3.1 (Richard Kahlenberg ed., 2004).
7. WILLIAM G. BOWEN, MARTIN A. KURZWEIL & EUGENE M. TOBIN, EQUITY AND EXCELLENCE IN AMERICAN HIGHER EDUCATION (2005).
8. Harvard Liberalizes Undergraduate Financial Aid, HARV. MAG. (Dec. 10, 2007), http://harvardmagazine.com/breaking-news/harvard-liberalizes- undergraduate-financial-aid
9. Tom Hayden, We Can't Afford to Be Quiet About the Rising Cost of College, CHRON. HIGHER EDUC. (Mar. 28, 2010), http://chronicle.com/article/Rising-Cost- of-College-We/64813/
10. Harvard Announces Sweeping Middle-Income Initiative, HARV. GAZETTE (Dec. 10, 2007), http://news.harvard.edu/gazette/story/2007/12/harvard-announces- sweeping-middle-incomeinitiative/
11. Harvard Expands Financial Aid for Low- and Middle-Income Families, HARV. U. GAZETTE (Apr. 6, 2006), http://www.news.harvard.edu/gazette/2006/04.06/01- finaid.html.
12. PETER M. BLAU & OTIS DUDLEY DUNCAN, THE AMERICAN OCCUPATIONAL STRUCTURE (1967)
13. ROBERT ERIKSON & JOHN H. GOLDTHORPE, THE CONSTANT FLUX: A STUDY OF CLASS MOBILITY IN INDUSTRIAL SOCIETIES (1992).
14. HANDBOOK OF RESEARCH DESIGN AND SOCIAL MEASUREMENT 327-65 (Delbert C. Miller ed., 5th ed. 1991)
15. Discussing a number of SES scales, which draw to various degrees on education, occupation, and income, but tend to single out occupation as the single most useful measure
16. Vickie L. Shavers, Measurement of Socioeconomic Status in Health Disparities Research, 99 J. NAT'L MED. ASS'N 1013 (2007)
17. Discussing a recent study of the advantages and disadvantages of various SES measures.
18. MASSEY ET AL, THE SOURCE OF THE RIVER, 41-44 (2003) (discussing a major study of the social origins of elite college students.
19. The study uses an unusually wide range of measures of social background-including some measures of sibling achievement-but relies principally on parental characteristics to capture socioeconomic status).
20. Consequently, questions about parental income tend to have a higher non-response rate than questions about parental education or occupation.
21. Richard H. Sander, Experimenting with Class-Based Affirmative Action, 47 J. LEGAL EDUC. 472, 477, 483 & tbl.2 (1997).
22. RONIT DINOVITZER ET AL., AFTER THE JD: FIRST RESULTS OF A NATIONAL STUDY OF LEGAL CAREERS (Janet E. Smith et al. eds., 2004).
23. AJD was based at the American Bar Foundation, and the research was conducted with the support of the NALP Foundation, the National Science Foundation, LSAC, the National Conference of Bar Examiners, and othersq.
24. AJD also included oversamples of blacks, Hispanics, and Asians, bringing the total sample to around 4,500.
25. The AJD data includes, between "high school diploma" and "associate degree or some college," a category called "trade or vocational school." There is no direct counterpart for this in the census data, so I treated this category as equivalent to "associate degree or some college." 15.
26. Specifically, I used the 2000 Public Use Microdata 5% Sample, or PUMS 5%, a standard electronic extract produced by the Census that captures households representing roughly one in twenty American households. The sample was weighted to better approximate the American population as a whole.
27. For a chart of all education levels and corresponding percentiles, see infra Appendix I, Table A1-1.
28. DONALD J. TREIMAN, OCCUPATIONAL PRESTIGE IN COMPARATIVE PERSPECTIVE (1977).
29. For a helpful overview of CAMSIS
30. For a helpful overview of CAMSIS, see Paul Lambert, Introduction, CAMSIS: SOCIAL INTERACTION AND STRATIFICATION SCALE, http://www.camsis.stir.ac.uk/ (last modified May 25, 2008).
31. For a full chart of CAMSIS codes and percentiles for women, see infra Appendix I, Table A1-2.
32. I only used respondents who reported at least two of the four possible values for their parents.
33. The correlation of the mean education and occupation measures for households is .6 in my PUMS sample. On the relation of these measures to income
34. This potential bias appears to be quite small; the educational distribution of AJD respondents is very close to the educational distribution of a sample of first-year law students studied in a 1995 national survey.
35. An easy way to see this is to consider the following thought experiment. Among the general American population aged 45-64 in 2000, about 40% of college graduates have an advanced degree.
36. Among the parents of AJD respondents, however, [60%] of the parents with bachelor degrees have some more advanced degree as well. Thus, if we measured educational achievement only up to the B.A. level, we would understate the actual eliteness of the AJD respondents.
37. The same tendency exists in the measures that really are unobserved in our data (eliteness of schools attended, income, status within occupation, etc.), so our statistics understate the eliteness of these respondents.
38. This is quite analogous to the concept of the "principle of the return of the repressed," an idea Deboarah Malamud has discussed in a different context.
39. Deborah C. Malamud, Assessing Class-Based Affirmative Action, 47 J. LEGAL EDUC. 452, 456-58 (1997).
40. One important question raised by this data is whether the suggested levels of eliteness really translate into economic eliteness-that is, whether these socially elite students are in fact actually rich.
41. While the AJD does not tell us this directly, there are many reasons to believe this is so.
42. In the general population (as captured by the PUMS), the correlation between our SES index and household income is fairly high-between .4 and .45, depending on how the measurement is done.
43. The Warkov data, discussed infra in the text accompanying notes 32-43, found law students in the 1960s to be as economically elite as they were elite by measures based on parental education.
44. In my own past research, I have gathered data on several cohorts of UCLA students, and consistently found the students to be from households that were as elite in economic terms as they were in educational or occupational terms.
45. Claudia Goldin et al., The Homecoming of American College Women: The Reversal of the College Gender Gap, J. ECON. PERSP., Fall 2006, at 138-42, 146-48 & tbl.3.
46. Economic Diversity: National Universities, U.S. NEWS & WORLD REPORT, http://colleges.usnews.rankingsandreviews.com/best-colleges/national-economic- diversity (last visited Feb. 9, 2011).
47. The Pell formula takes into account multiple factors, such as net household wealth, the needs of other dependent children, and whether a student is "independent" of his parents (e.g., older students returning to school), but grants are highly correlated with income. As one authoritative source reports, "Pell Grants are awarded primarily to low-income students.
48. For example, among 1995-96 beginning students, 87 percent of Pell Grants were awarded either to dependent students whose parents' incomes were under $45,000 (59 percent) or to independent students with incomes under $25,000 (28 percent).
49. Wei, Horn and Carroll, "Persistence and Attainment of Beginning Students with Pell Grants," National Center for Education Statistics (May 2002), p. 17.
50. Another useful source are University of California statistics on financial aid for freshmen, reported here: http://statfinder.ucop.edu/reports/ financialaid/default.aspx?Year=2008-09.
51. Calculations from this data suggest that 87% of all UC freshmen receiving Pell Grants were dependent students with family incomes under $48,000; moreover, 93% of these dependent students with family incomes under $48,000 received Pell grants.
52. These numbers cover the 2008-09 academic year and come from charts compiled as part of the U.S. News college rankings report. Id.
53. SEYMOUR WARKOV, LAWYERS IN THE MAKING (1963).
54. This book is a joint publication of the National Opinion Research Center and the American Bar Foundation.
55. It is included in the NORC's Monographs in Social Research.
56. Appendix I contains the undergraduate survey; questions 56, 57 and 58 deal with parental education, occupation and income.
57. The LSAT has been rescaled twice since Warkov's time (when the mean was roughly 500 points and the standard deviation was roughly 100 points).
58. Under the current scale, the mean is roughly 150 points and the standard deviation is roughly 10 points, creating a 120 to 180 scale.
59. Thus, the Stratum I schools in Warkov's time had LSAT medians equivalent to about 160 under the modern LSAT scale.
60. Of course, Stratum I schools today have much higher medians-a reflection of vastly increased numbers of applicants and far more competition for slots in the elite schools.
61. The origins of this trend is discussed in Richard H. Sander & E. Douglas Williams, Why Are There So Many Lawyers? Perspectives on a Turbulent Market, 14 LAW & SOC. INQUIRY 431, 462-63 & tbl.13 (1989).
62. Keep in mind that as recently as 1964, accredited American law schools granted only 9,638 degrees, about one-fifth of current production.
63. Richard Abel, American Lawyers (1989), p. 256
64. Few of the elite schools were part of the dramatic enrollment increases of the intervening decades, so the elite schools accounted for a much larger proportion of all lawyers than they do now.
65. Median family income was $5,620 in 1960 and $56,194 in 2005.
66. The 1960 figure comes from BUREAU OF THE CENSUS, HISTORICAL STATISTICS OF THE UNITED STATES: COLONIAL TIMES TO 1970, at 297 (1975).
67. The 2005 figure comes from U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2010, at tbl.683 (2010).
68. BUREAU OF THE CENSUS, at 290
69. WARKOV, at 59 tbl.4.1.
70. BUREAU OF THE CENSUS, at 380 (citing a figure from 1959)
71. An explanation of how to compute the index of dissimilarity can be found at Racial Residential Segregation Measurement Project, UNIVERSITY OF MICHIGAN: POPULATION STUDIES CENTER, http://enceladus.isr.umich.edu/race/calculate.html (last visited Feb. 9, 2011).
72. The index was originally developed to analyze residential segregation levels, where the categories compared are small geographic units like census tracts, but it is now used in much sociological research to compare differences in distributions across fixed categories.
73. John G. Hervey, Law School Registration, 1960, 13 J. LEGAL EDUC. 248, 248-61 (1960).
74. Statistics from 2002 can be found in AM. BAR ASS'N & LAW SCH. ADMISSION COUNCIL, OFFICIAL GUIDE TO ABAAPPROVED LAW SCHOOLS 2004 EDITION (2003).
75. By these sources, first-year enrollment at public law schools nearly tripled from 1960 to 2002, rising from 5,283 to14,262.
76. Of course, private law school enrollments also rose sharply during these years.) On the development and scale of law school affirmative action over these decades
77. Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367, 374 (2004).
78. See sources cited in notes 1 and 2
79. Robert E. Hirshon, President's Message: Excellence and Diversity, ABA Journal June 2002
80. If the American bar is to represent this culture, it must reflect the diversity of America. This is fundamental to fostering the public's perception that our system is fair, unbiased, and inclusive. Without that perception, our judicial system ultimately fails.
81. Such long overdue change in our profession's diversity can only begin in law schools⋯nothing divides this society so completely as race⋯which is only exacerbated by the cold reality that wealth, and the potential for wealth, is decidedly not colorblind.
82. MacCrate report; Carnegie report⋯.
83. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2010, at tbl.10 (2010)
84. Legal Education Statistics, AM. BAR ASS'N, http://www.abanet.org/legaled/ statistics/ stats.html (last visited Feb. 9, 2011).
85. For example, as noted below, many blacks at American law schools are not "African- Americans" per se.
86. Note that both "Hispanics" and "Asians" are broad ethnic categories that include subgroups with very different levels of representation.
87. Sean A. Pager, Antisubordination of Whom? What India's Answer Tells Us About the Meaning of Equality in Affirmative Action, 41 U.C. DAVIS L. REV. 289, 302-03 (2007)
88. Discussing the problems associated with defining ethnic groups in broad categories when major discrepancies exist among subgroups in those categories.
89. Americans of Japanese, Chinese, Korean, or Cuban origin are very well-represented, while Americans of Mexican, Puerto Rican, Cambodian, Vietnamese, or Filipino origin are not.
90. On high school dropout patterns, see Jordan, Lara and McPartland, "Exploring the Causes of Early Dropout among Race-Ethnic and Gender Groups," 28 Youth & Society 62 (1996).
91. Among Hispanics aged 25-29 in 2009, 29.9% had not completed high school, compared with 7.8% of the rest of the U.S. population.
92. Among those who completed high school, only 59% had attended any college, compared with 75.6% of the non-Hispanic population.
93. Author's calculations from 2009 ACS data.
94. Among U.S. blacks aged 25-29 in 2009, only 34.7% of those who had ever attended college had earned a bachelor's degree, compared with 52.3% for the non-black population.
95. Author's calculations from 2009 ACS data.
96. During the 1990s, the black representation rate substantially exceeded the white rate, but that has changed in recent years as the number of black college graduates has risen sharply with a much smaller rise in black law school enrollments.
97. The last paragraph of Appendix II for further discussion of this pattern.
98. In 1964, blacks accounted for 1.3% of American law students; depending on whether we calculate their representation relative to pool of college graduates or relative to the general population, their representation rate was between 10% and 30%-similar to the rates of representation for the low-SES categories, relative to the top 10%, in Tables 5, 6, and 7.
99. Michelle Anderson, "Legal Education Reform, Diversity, and Access to Justice," 61 Rutgers Law Review 1011 (2009).
100. Anderson writes that "there is a justice gap between impoverished and affluent communities in this country, one that leaves the poor with inadequate legal representation⋯.[a]t least 80% of the civil legal needs of low-income Americans are not being met⋯" But while Anderson believes that increasing racial diversity in law schools will address this problem, she never mentions the absence of socioeconomic diversity in law students of all races.
101. Many standard reference works fail to distinguish non-Hispanic whites from the rest of the white population, thus giving a misleading cross-group comparison.
102. My analysis of 2009 American Community Survey ("ACS") data shows, for 2008 reported income levels, an 8.9% poverty rate among non-Hispanic whites, compared to 21.9% among Hispanics and 24.3% among blacks.
103. Many of the issues discussed in this paragraph are explored, in the context of law students, in Sander, 11.
104. The best-known work on this issue remains MELVIN L. OLIVER & THOMAS M. SHAPIRO, BLACK WEALTH/ WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY (originally published 1995; 2nd edition, 2006).
105. Jane Yakowitz & Richard Sander, Race and Admissions at American Law Schools 28-29 (Jan. 26, 2011) (unpublished manuscript) (on file the Denver University Law Review).
106. Grutter v. Bollinger, 539 U.S. 306, 328-29 (2003).
107. Schools that seemed clearly un-representative were omitted.
108. Author's analysis of UMC Law School Data; original datafile is available from the author and on file at the University of Denver Law Review.
109. Brief Amicus Curiae for the Ass'n of American Law Schools in Support of Petitioner at 24-26
110. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (No. 76-811), 1977 WL 187968.
111. By empirical inference, not their stated policy.
112. Universities that receive federal aid are required to report to the federal government the ethnic makeup of their student bodies. Final Guidance on Maintaining, Collecting, and Reporting Racial and Ethnic Data to the U.S. Department of Education, 72 Fed. Reg. 59,266, 59,271 (Oct. 19, 2007).
113. The NSLSP database may be accessed at Databases, PROJECT SEAPHE, http://www.seaphe.org/databases.php (last visited Feb. 14, 2011).
114. For a description of the data, see Mitu Gulati, Richard Sander & Robert Sockloskie, The Happy Charade: An Empirical Examination of the Third Year of Law School, 51 J. LEGAL EDUC. 235, 240-44 (2001).
115. The survey, codebook, and introduction to the study can be found on the same site.
116. The reader should also bear in mind that Table 10 is, if anything, biased against a finding that high-SES is an advantage in admissions.
117. Since in the law student pool as a whole, low-SES law students have lower academic credentials on average than high-SES students, we would expect that any given school's students would show a modest credential gap between low- and high-SES students.
118. For example, among students with an academic index between 625 and 675, NSLSP respnodents whose average parental education was less than a high school diploma had an average index of 647.7, while respondents whose average parental education was a post-graduate degree had an average index of 652.2.
119. This suggests that, if law school admissions were completely unaffected by student SES, the low-SES students ending up at particular schools would tend to have slightly lower credentials than their high-SES peers. Since we observe just the opposite pattern, this strengthens the inference that schools are favoring high-SES applicants.
120. These statistics are calculated in much the same way as those in Table 10. Each student has an academic index; for each school I calculated the mean and standard deviation of the academic index for whites.
121. Then, for each school I calculated the distance, in white standard deviations, between the mean for whites and the mean for each racial group.
122. I only used schools where there were at least five valid index observations of the racial group in question. This table then reports the mean "gap" at all the included schools. The goal was to produce calculations that were comparable to those in Table 10.
123. Generally Daniel Golden, An Analytic Survey of Legacy Preference, in AFFIRMATIVE ACTION FOR THE RICH (Richard D. Kahlenberg ed., 2010).
124. Sander, Experimenting with Class-Based Affirmative Action, 11 at 488-89.
125. In 1991, several years before UCLA Law School instituted class-based preferences, I conducted a survey of student SES among first-year students; since the survey was anonymous and there were no admissions consequences (or other consequences) to providing complete information, the survey had a high response rate and very little omitted information.
126. Among the UCLA students, 50% had fathers with a graduate degree (putting them in the top 8% of middle-aged men); 56% had mothers with bachelor's degrees (putting them in the top 14% of middle-aged women); 43% had parental incomes of $100,000 or more (putting the parents among the top 8% of American families).
127. All these indicia gave UCLA students SES measures comparable at the high end to students at other 11th-to-20th ranked law schools in the AJD analysis reported earlier.
128. Stuart Rojstaczer & Christopher Healy, Grading in American Colleges and Universities, TCHRS. C. REC., Mar. 4, 2010, at 1-2.
129. Marvin A. Titus, Understanding College Degree Completion of Students with Low Socioeconomic Status: The Influence of the Institutional Financial Context, 47 RES. HIGHER EDUC. 371, 371 (2006).
130. This point should not be overstated, however. According to NELS data, about a quarter of students in the first and second quartile of SES attend private schools, compared to 43% of top quartile students (and probably somewhat over half of top decile students).
131. Thus, private/public school attendance is correlated with SES, but there is no rigid demarcation.
132. President William Jefferson Clinton, Address at the National Archives (July 19, 1995) ("[Affirmative action] began simply as a means to an end of enduring national purpose equal opportunity for all Americans.").
133. Infra Table 12. Under my analysis of AJD data, if we control for student credentials among whites, the correlation is no longer statistically significant, but I still find it quite striking that low-SES whites receive less grant and scholarship aid than high-SES whites.
134. The ABA website tracks average and median tuition trends over time and reports that, from 1995 to 2008, average in-state tuition at public law schools increased from $5,530 to $16,836-a 115% increase in real dollars.
135. Out-of-state tuition at public law schools increased by a larger absolute amount over the same period, but a smaller proportionate amount, since it began at a higher base.
136. Average private law school tuitions increased from $16,798 to $34,298 during the same period-again, a smaller percentage increase (44% in real dollars) but a larger absolute increase.
137. For tuition levels, see Law School Tuition 1985-2008, A.B.A., http://www.abanet.org/legaled/statistics/ charts/stats%20-%205.pdf (last visited Feb. 14, 2011). For consumer price index levels
138. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2010, at tbl.708 (2010).
139. Thorin Klosowski, Should Race Still be a Factor in College Admissions?, HOWSTUFFWORKS, http://money.howstuffworks.com/personal-finance/college-planning/ admissions/ race-college-admissions.htm/printable (discussing how public universities and colleges in states such as California and Michigan, which prohibit the consideration of race as a factor in the admissions process, consider socioeconomic status instead) (last visited Feb. 14, 2011).
140. Prop 209, adopted by California voters in 1996, made unconstitutional the use of race as a factor in awarding various state benefits-including admission to state universities.
141. The three "neighborhood" measures were: the proportion of single-parent families in the tract, the proportion of households on public assistance, and the high school dropout rate among young adults.
142. UCLA Law School's academic index, like those used at other schools, is a weighted combination of LSAT scores and undergraduate grades.
143. Unlike other indices, however, the UCLA index adjusts undergraduate grades to reflect both competitiveness of the college and the degree of grade inflation at the college-thus avoiding some of the low-SES bias discussed in Part VI.
144. When the school adopted the new UGPA index in 1991, the proportion of matriculants from Cal State colleges (a common destination for working-class youths in California) shot up.
145. Thirty-five percent of UCLA Law School's 1997 matriculants were nonwhite (possibly more, since many students did not identify their race in the new regime).
146. Thirteen percent were underrepresented minorities.
147. The experiment was substantially modified in 1998, chiefly because of faculty disappointment that only ten blacks enrolled under the new system (the law school had averaged 25-30 black matriculants before Prop 209).
148. The school moved a more subjective approach to evaluating "disadvantage", but this system generated even smaller black enrollments. In 2001, the faculty adopted its present system of mixing "holistic" assessments of disadvantage and admission to special programs, notably the Critical Race Studies program. Black enrollment averages at the law school, however, have continued to be much lower than before Prop 209.
149. Author's analysis of UCOP data on University of California campuses.
150. As noted earlier, Berkeley and UCLA have around three times the proportion of Pell Grant recipients among their students than other elite public schools, such as the University of Virginia and the University of Wisconsin.
151. One factor unique to California, which also contributes somewhat to the UC's economic diversity, is the substantial number of low-SES, high-achieving Asian students, many of them immigrants or the children of immigrants.
152. Min Zhou, Segmented Assimilation: Issues, Controversies, and Recent Research on the New Second Generation, in THE HANDBOOK OF INTERNATIONAL MIGRATION: THE AMERICAN EXPERIENCE 196, 205 (Charles Hirschman et al. eds., 1999).
153. Carnevale & Rose, supra note 6, at 7 ("[T]he expansion of current affirmative action programs to include low-income students . . . can add both economic and racial diversity.").
154. Using national data, Carnevale and Rose show that current racial preferences produce minimal SES diversity.
155. [U]nder current affirmative action policies, racial minorities are underrepresented, and . . . the underrepresentation of low-income students is even greater.
156. Their simulations of alternative admissions policies suggest that "elite" colleges could, by replacing racial preferences with SES preferences, quadruple the proportion of students from the bottom half of the SES distribution (from 10% to 38%) while reducing underrepresented minorities ("URM") representation by only one-sixth (from 12% to 10%).
157. Kevin Drum, Obama and Affirmative Action, WASHINGTON MONTHLY, (May 14, 2007, 7:04 PM), http://www.washingtonmonthly.com/archives/individual/2007-05/ 011305.php (including a transcript of the interview by George Stephanopoulos with Barack Obama)
158. Peter S. Canellos, On Affirmative Action, Obama Intriguing but Vague, BOSTON GLOBE, Apr. 29, 2008, at A.2
159. Eugene Robinson, Op-Ed., A Question of Race vs. Class: Affirmative Action for the Obama Girls?, WASH. POST, May 15, 2007, http://www.washingtonpost.com/ wp-dyn/content/ article/2007/05/14/AR2007051401233.html
160. Dahlia Lithwick, Shades of Gray: Barack Obama Has Gotten Past Affirmative Action. Have We?, SLATE MAG., (Mar. 31, 2008, 7:39 PM), http://www.slate.com/ id/2187718/.
161. Richard D. Kahlenberg, The Conservative Victory in Grutter and Gratz, JURIST (Sept. 5, 2003), http://jurist.law.pitt.edu/forum/symposium-aa/ kahlenberg.php.
162. Three national polls conducted by EPIC/MRA, the Los Angeles Times, and Newsweek early in 2003 found nearly identical patterns: from 57% to 65% of respondents supported admissions preferences based on income; 26% to 27% supported preferences based on race.
163. Lani Guinier, Admissions Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals, 117 HARV. L. REV. 113, 155 n.166 (2003).
164. Christopher Jencks & Meredith Phillips, The Black-White Test Score Gap: An Introduction, in THE BLACK-WHITE TEST SCORE GAP 1, 3 (Christopher Jencks & Meredith Phillips eds., 1998).
165. "Hispanics" can-and in many counts do-include fifth generation Americans of Mexican ancestry, Guatemalan immigrants, Cuban-Americans, elite professionals from Argentina, and natives of Spain.
166. Hispanic Population of the United States, U.S. CENSUS BUREAU, http://www.census.gov/population/www/socdemo/hispanic/hispdef.html (last visited Feb. 14, 2011) (defining "Hispanic origin").
167. Since the census began giving Americans the option of checking a "multiracial" box, this has become the fastest-growing racial group in the country.
168. Multiracial Americans numbered 4.08 million in 2001, 5.17 million in 2008, and are projected to number 6.44 million by 2015.
169. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2002, at 16 tbl.14 (2002)
170. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2010, at tbls.10 & 11 (2010).
171. This number does not include "partial" Hispanics, since Hispanics are considered an ethnic group, rather than a race, by the Census.
172. Further accelerating this growth is the dramatic increase in interracial marriages in the United States; according to a recent Pew study, one-seventh of all new marriages in the United States cross racial or Hispanic lines; 16% of blacks, 26% of Hispanics and 31% of Asians now marry outside their race or ethnic group.
173. JEFFREY PASSEL, WENDY WANG & PAUL TAYLOR, MARRYING OUT: ONE-IN-SEVEN NEW U.S. MARRIAGES IS INTERRACIAL OR INTERETHNIC, at ii (2010), available at http://pewsocialtrends.org/files/2010/10/755-marrying-out.pdf. Interracial or cross-Hispanic marriages have nearly tripled since 1980.
174. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2010, at tbl.60 (2010).
175. ORLANDO PATTERSON, THE ORDEAL OF INTEGRATION 157 (1997) ("[N]o group of people now seems more committed to segregation than Afro-American students and young professionals.").
176. Richard H. Sander, A Reply to Critics, 57 STAN. L. REV. 1963, 1964-65 (2005)
177. Doug Williams, Assoc. Professor of Econ., Univ. of the S., Address at the American Law and Economics Association: Does Affirmative Action Create Educational Mismatches in Law Schools? (May 7, 2010), available at http://econ.duke.edu/~hf14/ERID/ Williams.pdf.
178. One of the leading critiques of the mismatch theory, published by Katherine Barnes in the Northwestern Law Review, turned out to be filled with erroneous numbers.
179. E. Douglass Williams, Richard Sander, Marc Luppino & Roger Bolus, Professor Barnes and Law School Mismatch, 105 NW. U. L. REV. (forthcoming 2011).
180. When done correctly, her analysis is entirely consistent with the mismatch hypothesis. See id. The other major critiques of the mismatch effect all turn out to have methodological problems, which, when corrected, produce results showing generally large mismatch effects.
181. Jane Yakowitz, Marooned: An Empirical Investigation of Law School Graduates Who Fail the Bar Exam, 60 J. LEGAL EDUC. 3, 24 (2010).
182. Fullilove v. Klutznick, 448 U.S. 448 (1980)
183. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
184. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237-39 (1995)
185. Mandating the application of strict scrutiny to racially-based affirmative action cases
186. Neal Devins, Adarand Constructors, Inc. v. Pena and the Continuing Irrelevance of Supreme Court Affirmative Action Decisions, 37 WM. & MARY L. REV. 673, 677-78 (1996)
187. Describing the doomsday-like reaction to Adarand.
188. 539 U.S. 244 (2003).
189. 539 U.S. 306 (2003).
190. Text accompanying note 65. If a school
191. Relies heavily on its academic index in admissions
192. Admits all blacks and no whites in a particular index range, then logically race is completely determinative of admissions decisions in that range.
193. Other sources we have on the SES of law students, such as from the National Survey of Law Student Performance and the Bar Passage Study, suggest this is a valid assumption.