Law schools routinely publish data about the racial and ethnic makeup of their student bodies but the breakdowns by socioeconomic status (SES) are shrouded in secrecy. Yesterday, the Denver University Law Review published a groundbreaking study by UCLA law professor Richard Sander providing a vivid picture of the economic makeup of American legal education. His key finding: “low-SES representation at elite law schools is comparable to racial representation 50 years ago, before the civil rights revolution.”
Using a large national data base (the After the JD Study), Sander finds that just 2 percent of students at the top 20 law schools come from the bottom socioeconomic quarter of the population while more than three-quarters come from the richest socioeconomic quartile. Astoundingly, Sander writes “roughly half the students at these schools come from the top tenth of the SES distribution, while only about one-tenth of the students come from the bottom half.”
Sander’s article, which is published in a special issue of the Law Review with 10 response essays (including one I wrote), also finds that racial affirmative action in legal education has done little to indirectly promote socioeconomic diversity. Sander finds that at top 20 law schools, 89 percent of African Americans, and 63 percent of Latinos come from the top socioeconomic half of the population (along with 92 percent of Asian Americans and 93 percent of whites.) Sander’s finding is significant because in the discussions of race-based affirmative action, advocates routinely seek to bolster their case by citing the low socioeconomic status of minority students. For example, in Gratz v. Bollinger (2003), Justice Ruth Bader Ginsburg, joined by Justices David Souter and Stephen Breyer, wrote that black and Latino students “are all too often educated in poverty-stricken and underperforming institutions.” That is surely true, but the minority beneficiaries of affirmative action in top law schools do not appear to be drawn from the ranks of those disadvantaged students.
While law schools often purport to provide a leg up in admissions to economically disadvantaged students, Sander finds they do not in fact do so. Sander’s analysis of a 1995 survey of 19 law schools suggests that while schools provide very large preferences to black and Latino students, there is no preference provided to students whose parents have lower levels of education. Likewise, Sander finds that law school grants and scholarships are not geared toward financial need. Wealthy whites receive twice as much grant and scholarship money as low-income whites (12 percent of costs covered vs. 5 percent). And wealthy blacks receive four times as much grant and scholarship aid as low-income whites (20 percent vs. 5 percent).
Furthermore, Sander finds that class-based affirmative action can produce a substantial amount of racial diversity. He discusses the experiment at the UCLA Law School, which was banned from using race by voter initiative, and turned to socioeconomic status instead. The race-blind program produced a class that was more than one-third nonwhite. In the fall of 2002, African-American students were 16 times as likely to be admitted under the socioeconomic program as they were under other programs, and Latinos were 6.8 times as likely to be admitted. These findings are significant because the U.S. Supreme Court may soon revisit the issue of affirmative action involving a challenge to the use of race at the University of Texas. The key question is whether race-neutral alternatives to affirmative action are viable, and Sander’s research suggests that under the right circumstances, they can produce significant racial and ethnic diversity.
But ultimately, it’s important to know, will law students admitted under socioeconomic affirmative action graduate and pass the bar exam to become lawyers? For Sander, this issue is particularly pressing given his widely cited critique of racial and ethnic affirmative action programs for producing low bar passage rates. Sander finds that at UCLA Law School—a highly selective institution—students given socioeconomic preference in admission were part of a class that went on, in 2000, “to achieve the highest state bar passage rate in the school’s history before or since.” Sander notes that the weight of the preference provided to socioeconomically disadvantaged applicants was about half the weight provided previously to Latinos, and a quarter of the weight provided previously to African Americans.
Until now, low-income students of all races have been the invisible men and women of American legal education. As I note in the Denver Law Review, in the nonfiction realm, Richard Sander may be their Ralph Ellison.
