A systematic response to systemic disadvantage: a response to Sander.

• Author: Wilkins, David B.
• Position: Response to Richard H. Sander, Stanford Law Review, vol. 57, p. 367, November 2004

1. THE NOT-SO-GOLDEN AGE II. MAKING ELITE BLACK LAWYERS III. JUST MAKING IT IV. SOME STRAIGHT TALK ABOUT STRAIGHT TALK Consider the following story:

   On November 22, 2004, Anthony R. Chase, CEO of ChaseCom, a call-center provider for telecommunications companies, returned to give the Traphagen Distinguished Alumni Lecture at his alma mater, Harvard Law School. Chase's lunchtime talk departed from the standard fare for such gatherings. Instead of reminiscing about how much he loved law school in the late 1970s and demurely cataloguing his professional success since graduation, Chase candidly told his young audience that he often didn't have a clue what his legendary professors were talking about--that is, when he bothered to stop in to hear what they were saying--and that his path from affirmative action admittee to CEO of his own company with gross revenues in the tens of millions had been anything but straight and trouble-free. He had failed many times, he told them, but had always been able to pick himself up. It was at these moments that his Harvard degrees (he has three of them) had proved most useful, providing both contacts and credibility that allowed him to pursue his dreams anew.

   At the conclusion of the talk, the diverse group of students in attendance applauded wildly. As several confided in me afterwards, no one had ever talked to them like that before. Here was someone whose real struggles they could relate to--and whose honesty gave them the courage to admit that they had struggles of their own. A half dozen or so asked me for Chase's email so that they could tell him how much the talk had meant to them. One of those who did was a former student of mine from Taiwan. In addition to conveying her appreciation for Chase's talk and her admiration for his outlook on life, the student also wanted to make a connection. Her brother and his college roommate from MIT had recently started a telecommunications company in Taiwan. She wondered whether his company and ChaseCom might be able to do business. Four emails later, the black CEO from Texas and the entrepreneur from Taiwan were in discussions about a possible business deal.

   Now ask yourself the following question:

   Would Anthony Chase have been better off if he had gone to Boston College Law School instead of to Harvard?

   If you buy the logic of Rick Sander's apparently well-researched, well-argued, and undoubtedly well-intentioned paper, the answer to this question would have to be yes. Notwithstanding a few qualifications along the way, even elite school graduates like Anthony Chase, and all of the other beneficiaries of affirmative action over the last forty years, would--on average--have been better off going to lower-ranked law schools where their entering credentials would have fit better with the entering credentials of their white peers.

   To be sure, it is easy to lose sight of the fact that this is Sander's central claim. Many of the article's hundred-plus pages, and the vast majority of his statistical analyses, are devoted to other arguments--for example, that contrary to the Supreme Court's finding in Grutter, (1) law schools actually operate a dual admissions system in which blacks are evaluated separately from whites, or that law schools form a connected "system" in which admissions decisions taken by schools higher up the prestige chain have predictable consequences for the admissions decisions of lower-ranked schools. As interesting as these claims may be, however, they are, by Sander's own terms, peripheral to the "principal question of interest" his article is designed to address: to wit, "whether affirmative action in law schools generates benefits to blacks that substantially exceed the costs to blacks." (2) To put the point bluntly, even if law schools are operating a dual admissions system in violation of Bakke (3) and Grutter, so long as that system generates "benefits to blacks that substantially exceed the costs to blacks," (4) it would pass the minimal but crucial test that Sander poses for its legitimacy.

   Similarly, it is easy to lose sight of the reason why Sander asserts that the costs to blacks of affirmative action outweigh the benefits. A good deal of Sander's analysis is devoted to arguing that many black students receive low grades in law school. Once again, this is an interesting and important issue--one that undoubtedly deserves the attention of those of us who spend our time teaching in law schools. But for Sander's overall argument, low grades are only important, as he concedes, if they produce "bad outcomes" such as "higher attrition rates, lower pass rates on the bar, [or] problems in the job market." (5) After all, in the days before affirmative action, all of the bottom places on the law school grade ladder were occupied by whites. (6) Once again, to put the matter bluntly, even if affirmative action systematically lowers the grades blacks receive in law school, if the beneficiaries of these policies go on to become successful and satisfied practitioners, then the costs to them of bad grades would be outweighed by the benefits that flow from a successful legal career.

   Thus, once we clear away all of the underbrush, Sander's argument that affirmative action hurts blacks comes down to an assertion about the relative value of grades (and all that they represent) versus law school prestige (and all that it represents) in achieving the ultimate goal shared by all law students of becoming a lawyer and building a successful career. (7) By Sander's calculation, the primary effect of affirmative action is to allow black law students to attend schools that are twenty to fifty places above the schools that they would have been admitted to in the absence of these policies. (8) Without more, this would seem to be a clear benefit to those who receive this boost, as Sander concedes virtually every law student, black and white, firmly believes. Consequently, in order to prove his point that blacks are nevertheless harmed by affirmative action, Sander must demonstrate that "the net trade-off of higher prestige but weaker academic performance substantially harms black performance on bar exams and harms most new black lawyers in the job market." (9)

   Indeed, although Sander devotes significantly more attention to bar passage than employment success, it is this latter claim--that attending a more highly ranked school actually hurts "most new black lawyers on the job market" (10)--that must in the end be the linchpin upon which his argument either succeeds or fails. Notwithstanding the grim statistics he amasses regarding black attrition and bar failure rates, the fact remains that most black students who begin law school--fifty-seven percent--do in fact become lawyers. (11) Moreover, a significant percentage of those who currently fail to graduate from law school and pass the bar would not become lawyers under Sander's proposal either. (12) Although one can argue that black students who fall into this latter category would have been better off if they had never been admitted to law school in the first place (an assertion that I will return to below), if those blacks who do become lawyers benefit significantly from affirmative action, then it is hard to see why blacks as a group are worse off simply because a higher percentage of blacks fail the bar than whites. (13) To make a persuasive claim that affirmative action harms "most" blacks, therefore, Sander must prove that grades are more important than law school prestige for those black law students who actually become lawyers.

   Finally it is important to recognize that to meet this crucial burden, Sander offers a single piece of evidence--and an equivocal piece at that. Sander argues that according to the first wave of responses to the After the JD Study (hereinafter "AJD Study"), black lawyers with high grades from low-status schools are as--if not more--likely to obtain high-paying jobs than their counterparts from higher-status schools with lower grades. (14) On the basis of this single finding, Sander declares that contrary to popular belief, "[r]acial preferences ... have not been an indispensable part of credentialing blacks for the job market; overall, they clearly end up shutting more doors than they open." (15)

   In this brief Response, I will argue that this single piece of evidence does not come anywhere close to proving that most black lawyers would be better off in a world in which the vast majority of them would attend law schools twenty to fifty places below the ones that they currently attend, and where hundreds of blacks who currently attend law school today would be denied the opportunity to do so altogether. Affirmative action has played a crucial role in helping black lawyers to overcome the systematic and persistent obstacles that continue to make it more difficult for these new entrants to succeed notwithstanding the progress the country has made in reducing the overt discrimination that for the first two centuries of our history kept blacks out of virtually every desirable aspect of American society. Indeed, it is precisely because these policies have been so successful that for the first time blacks with high grades from lower-status schools have a plausible chance of gaining entry into high-paying positions in the legal profession. These tentative gains, however, are unlikely to continue if the number of black graduates from highly ranked schools were to decline dramatically. Although the picture is more complex with respect to those black students who are unlikely to end up in high-status jobs, they too have benefited more from affirmative action than Sander's analysis suggests. Equally important, the problems those in this group undoubtedly confront have as much to do with the way that bar exams are conceived and administered as they do with these students' potential to become competent practitioners.

   The rest of this Response proceeds in four...