David B. Wilkins, A Systematic Response to Systemic Disadvantage: A Response to Sander, 57 Stan. L. Rev. 1915 (2005).
Abstract: In a recent article in the Stanford Law Review, Professor Richard Sander argues that law schools should dramatically reduce or eliminate their affirmative action policies for black applicants because these policies harm rather than help their intended beneficiaries. Although Sander presents many troubling statistics about black performance in law school and on the bar exam, his core claim that blacks are harmed by affirmative action rests on the counterintuitive assertion that blacks who attend more highly ranked law schools because of such policies are hurt more by the lower grades that they are likely to receive at these institutions than they are helped by the benefits of graduating from a more prestigious institution. In a Response that will also be published in the Stanford Law Review, I argue that the evidence Sander proffers 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 20-50 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 argument proceeds in four parts. Part I briefly reminds us of the long and sorry history of exclusion that gave rise to the need for affirmative action in the first place and examines how this legacy continues to disadvantage black lawyers. Part II examines Sander's contention that grades are more important than law school status in the context of black graduates from highly-ranked schools. Contrary to Sander's assertion, black lawyers in this group gain benefits from their prestigious degrees that extend far beyond the starting salaries that they receive upon graduation. In turn, these fledgling members of the profession's elite provide important benefits to all black lawyers - and to society as a whole. Part III examines those black lawyers who appear to have benefited the least from affirmative action: those who attend lower-tier local and regional law schools. Although Sander makes a persuasive claim that these students face daunting risks in pursuing a career in law, a significant number plausibly benefit from their legal education, even if they do not go on to become lawyers. Moreover, given that bar passage is the most important obstacle facing blacks in this group, we can gain as many new black lawyers by reforming the way that such exams are administered and taken as Sander claims will result from eliminating affirmative action. Part IV briefly concludes by arguing that, rather than improving conditions for black lawyers, Sander's proposal runs the risk of making many of the problems he identifies worse.