an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Brian Tamanaha's essay, "The Failure of Crits and Leftist Law Professors to Defend Progressive Causes" is characteristically provocative. Here is one especially interesting nugget from Brian's essay:
Black and Hispanic graduates, moreover, appear especially burdened by law school debt. Ninety-five percent of African American graduates take on debt for their legal education, substantially above the percentage of white graduates who do so (81%). A study of graduates from the class of 2000 found that a much smaller percentage of black (4.5%) and Hispanic (6%) law students graduated from law school debt-free than did whites (17.3%) and Asians (19.9%). The median debt of blacks ($72,000) and Hispanics ($73,000) was higher than that of whites ($70,000) and Asians ($60,000). Half a dozen years out, fewer blacks (17%) and Hispanics (28.9%) had paid off their student debt as compared to whites (37%) and Asians (46.8%).
I immediately wondered how the above claim relates to Richard Sander's account of mismatch in legal education: the phenomenon that (as Sander presents it) race-based affirmative action ends up placing Black and Hispanic students in law schools where they perform worse academically than they would if they attended (in a race-blind system) less competitive schools, with negative career outcomes as a result. Sander doesn't say much about debt in his article, except for the following:
Anecdotal evidence suggests that many law schools try to minimize the size of their internal black-white gap by competing vigorously for black candidates, both by “wining and dining” strong prospects and by offering those prospects generous financial aid. More systematic data from the AJD study shows that blacks in the 2000 cohort of graduates received about three times as much in grants and aid from their law schools as did students of other races. It is reasonable to suppose that in a race-blind system, race-based financial aid would decline (though I would argue that recruiting more blacks into the system as a whole remains a valid and important goal). It is certainly possible that a decline in aid for blacks, if it occurs, could discourage some black applicants. On the other hand, Hispanic law students currently receive far less scholarship aid than blacks (even though Hispanic law students tend to come from less affluent backgrounds) but apply to law school in very similar proportions to their numbers among college graduates.
How do we reconcile Tamanaha and Sander to figure out exactly what the impact of "mismatch" is on the debt load of minority (here, meaning Black and Hispanic) law school graduates? I would have thought that if law school scholarships are heavily based on merit rather than need, a minority applicant would end up with a larger tuition break--and better odds of paying off any loans--by attending Average Law School rather than Elite Law School. Thus, affirmative action would drive up debt. On the other hand, if, as Sander suggests, Elite Law School is willing to pay a very high premium for a minority candidate, affirmative action should reduce the debt incurred by minority graduates. Perhaps we need information about the distribution of debt figures (rather than simple averages) -- but do readers have thoughts on the financial impact of affirmative action?
I don't know the answer to your question, and you are likely correct about "averages" hiding underlying disparities, but one possible way to reconcile these figures is that blacks and Hispanics in general might have less support from other sources (family or savings). If they must pay for most or all of their legal education, then even if they get higher scholarships on average, their final debt levels can still be higher than whites and Asians who are able to fund their legal educations in ways other than borrowing. That is just a guess.
Another quick thought. It is not clear that higher scholarship amounts are being awarded, but rather, that scholarships (in the same amounts) are being awarded at comparatively lower LSAT/GPA profiles. If that is true (I don't really know), then that would be a way to reconcile these two findings. And the answer to your question might be a combination of my first comment and this one.
I'm not sure you fully understand Sander's mismatch theory. The idea is that while the elite schools will give out much in race-based scholarship $$$ in order to enroll the most qualified minority candidates, there is a cascade effect the lower down the law school food chain you go.
If the lower-ranked schools want any real sense of racial diversity they are probably accepting minority candidates that perhaps should not be admitted at all. (There is also surely true with many of the white students at schools like Whittier, Cal Western, Touro & c., but does not have much to do with mismatch).
I remember back in 2002, my law school flew in a very impressive black student and had the rest of us minority students wine and dine him (on the school's dime, of course). It struck me as odd that the school was going to such lengths to have him enroll there. I don't remember any Hispanic or Asian students being treated in such a way.
I also had a minority scholarship while in school that paid 2/3 of my tuition. This despite the fact that I was a decidedly average student and finished 180 out of 191 in the rankings.
I'm not complaining, but I do think that we need to encourage structural change within minority communities instead of pandering with scholarships and special treatment. Only then will we be truly equal to all the white students.
This basically goes back to housing policy after WWII where blacks were denied mortgages, red lined and ghettoized (see Coates here for a taste, see also Pigford vs. Glickman) As a result, black families have much lower net worth.
As with Harold Washington, so with Steele, and of course Derrick Bell in his dissent in Brown, in the book edited by JB. White liberals don't have the experience so they rationalize from what they know.
"I do think that we need to encourage structural change within minority communities"
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