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April 02, 2005

Integrated Inequality

Some discussion is going on at Balkin and Volokh about the numbers of blacks who are failing to pass bar exams and flunking out of law schools. I'm going to take a tangent, because the tone of the discusion (as I suppose could be expected) seems to hinge on the numbers and what non-African Americans think is best for African Americans.

The purpose of Affirmative Action is to put black first basemen on first base, as opposed to waiting for Jackie Robinson to overcome presumptions of racial inferiority. It is done for the purposes of racial integration, not only for stellar individuals, but for the whole of society. One must presume that whatever the situation, Jackie Robinson will make his own way since real merit does have its merits. The real failure of society to be integrative comes not only at the expense of the best of the oppressed, but for the moderately skilled. For a racist society is a closed society, which defeats democracy. Therefore the success of Affirmative Action is not only a remedy for past discrimination, but a pathway towards openness. If we didn't care about openness, the case for Reparation would be stronger than the case of Integration. Affirmative Action is more Healing than Cure, and therefore it is most effective when aimed at the general population rather than at the most talented.

There are some differences however when it comes to credentialed professionals. Although I personally find it rather difficult to see how it is that excellently skilled and highly proficient attorneys are much more than hyper-powered avatars for the avarice of those who can afford them, I expect that there is some reasonable presumption that diminishment of the technical qualifications of lawyers does indeed damage the nation. At any rate that seems to be the aegis of this discussion - who scores the highest on tests, who graduates from professionals schools. So I have been of the opinion for some time now, that Affirmative Action needn't apply for credentialed professions. It is for this reason that I felt that the U of Michigan got its priorities backwards.

I happen to believe that in the context of American society, specifically for blacks, that Tokenism has real value. So I don't mind Affirmative Action which creates tokens. But if it only created tokens, I think it would be more harmful than good. There are many people who believe just that; I think they are misinformed. The matter of my support in Affirmative Action at the professional level hinges primarily thus, on the value of black tokens in the particular profession. I think we are at a point of relative equilibrium in the legal field - that the idea of a black attorney is not so preposterous, and the presumption that racism severely stifles the aspirations of blacks seeking the bar is not very strong. And so I believe that we do not particularly need token black lawyers in the way we need token black architects, museum curators, newspaper publishers or professors of oceanography.

There is the matter of instruction vs education which cuts very deeply into this controversy. Simultaneously there is the question of prophylaxis. Both of these bring to mind what exactly law school is good for. If the purpose of law school is instruction, one can judge the quality of the law school by the number of its graduates who successfully pass the bar. If you fail to pass the bar, then you are a failure, period. But I consistently raise the question of whether or not law school educates blacks. Because if they do, then blacks who fail at law school are still better off than those who never attend. Assuming that then, do failing black law students effectively act as a prophylaxis against white students who do not? In other words what is the cost of admitting students who fail to students who do not? While it clearly slows down the whole process of graduating successful, bar-passing attorneys, I believe it is a small cost and that cost is very measureable. I further believe that the law profession is not in any crisis of supply, wheras the medical profession is.

If on the other hand, the benefit of law school is strictly limited to instruction then it is a stricter meritocracy. Then that brings up the value of low ranking law schools and their contribution to society, but I don't want to go there right now.

My argument is that within the context of successful graduation and the numbers game, the effects of the inefficiencies introduced by a zero-sum Affirmative Actions at American law schools is minimal and has a negligible effect on the operation of the profession. This argument cuts two ways. The numbers of blacks Affirmative Action passes as a ratio to those it accepts and the total number of blacks who attend law school must similarly be considered. I believe, but I am perfectly willing to be proven wrong, that the number of black graudates of law school who are indeed Affirmative Action beneficiaries at least doubles their number, so Affirmative Action with respect to African Americans is indeed a success, in spite of the dropout rate. But again, the overall effect on the profession is small (or basically twice the negligible figure I asserted earlier depending on the ratio of beneficiary to non-beneficiary blacks).

So it seems to me that those most affected by Affirmative Action is the beneficiary class itself. Their interests are clear, and while they may exist on the periphery of the profession, their continued existence has a much larger political interest behind it. I think rightfully so, because Affirmative Action of this nature has become the sole practical instrument of racial justice in America.

The result is exactly what I think Harold Cruse, in his dissent against the Brown Decision would have predicted, a state of integration that makes black and white together but unequal rather than separate but equal.

What remains is the question of prophylaxis and 'fair play', and what we have seen consistently is that tiny number of whites who are excluded and might not pass the bar have powerful advocates. In fact, we know her name and it is Hopwood. She plays in the same margin as failing blacks, with regard to the integrity of the profession.

So we are left with the compelling irony that failing whites are more important than failing blacks with regard to the prospects for Affirmative Action in law schools. And I think it will remain that way until nobody cares whether lawyers are black or white. Ain't that something?


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  • Posted by mbowen at April 2, 2005 03:38 PM

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    "I think it will remain that way until nobody cares whether lawyers are black or white."

    This argument, though, only leads to perpetuation of ineffective or even counter-productive efforts solely based upon interest in those efforts. I feel it is a given that someone will be interested in whether lawyers are black or white as long as there is something personally to be gained by that interest. What you term "irony" I see more as a paradox, that so long as society is purposefully and intentionally made to view issues with a racially based persective it will be impossible to reach the promised land of ubiquitous racial equality and color blindness. I see it not unlike the old admonision "don't think about purple donkeys." Said enough times, it is impossible not to.

    Posted by: submandave at April 4, 2005 04:25 PM

    I wonder if you don't underestimate the harm of exiting a low tier law school, unable to pass the bar and more than $100,000 in debt.

    Posted by: Sebastian Holsclaw at April 13, 2005 12:46 AM

    I don't, but I find it difficult to believe that this is a common difficulty among African Americans. If it is at all significant, it might be because we have met a point of diminishing returns for a rising class of African Americans, which is just another way to say that Affirmative Action simply doesn't deliver enough goods to people like me. But that no way affects blackfolks who live in the 7th Ward of New Orleans.

    Again, I'm satisfied that a liberal application of Affirmative Action would work at the undergraduate level and you could ditch all of the graduate / professional level for all I care. I think anyone willing to accept Tokenism at a high level rolls the dice but I support Tokenism because the perception of high class blacks is useful.

    Posted by: Cobb at April 13, 2005 03:36 PM