Equity and Education
By Judith C. Areen

Growing up, I was taught that America is a place where anyone can get ahead through hard work. Most Americans still believe that to be true. (By contrast, a majority of people in every country in Europe except Britain, the Czech Republic, and Slovakia believe that forces beyond their personal control determine their success.1) But there is increasing evidence that most Americans are wrong.

In 1978, for example, a study found that 23% of adult American men who had been born in families whose income was in the bottom fifth in the nation had made it into the top fifth. When the study was redone recently by Earl Wysong and colleagues at Indiana University, they found that only 10% of adult American men whose father’s income was in the bottom quartile had made it to the top quartile.2 Economists who study the stickiness of social class (by examining the intergenerational elasticity of earnings) report that the United States now has less social mobility than France or Germany.3

The decline in social mobility has been exacerbated by increasing disparities in income and wealth. From 1980 to 2000, the average, after-tax income of the top one percent of our nation rose by 201 percent to $576,000, while that of those in the middle rose by just 15 percent to $41,900. Put another way, the 2.8 million people in the top one percent received more total after-tax income in 2000 than did the 110 million who made up the bottom 40 percent.4 The United Nations reports that America has more income inequality (as measured by the Gini Index) than the United Kingdom, France, Spain, Germany, and Japan, among others.5 Americans have been willing to tolerate such large disparities because there has been a reasonable amount of social mobility—but that social mobility is now in doubt.

Education has always been one of the great engines of social mobility in the United States. Ever since the founding of Harvard in 1636, Americans have understood that our ability to succeed as a nation is closely tied to education. But there is disturbing evidence that education is not as open to low-income students as it ought to be.

William Bowen, Martin Kurzwell and Eugnene Tobin, in their book Equity and Excellence, took a careful look at data from 19 academically selective colleges and universities. They found that only 11 percent of the students enrolled in their sample schools came from families whose income was in the bottom quartile, and only 6 percent were first-generation college students (although, nationwide, 38 percent of 16-year-olds have parents who never attended college). Only three percent of the enrolled students were both from low-income families and first-generation college goers.6

Bowen and his colleagues also found that being from a low-income family produced no admissions advantage at any given SAT level, and only 4.1 percentage points for potential first-generation college students on a base of 40 percent for otherwise similar students. By contrast, recruited athletes had an admissions advantage of 30.2 percent; and alumni legacies, 19.7 percent.

Bowen, Kurzweil, and Tobin quote from the amicus brief submitted to the Supreme Court in the University of Michigan admissions cases by Harvard, Brown, Chicago, Duke, Dartmouth, the University of Pennsylvania, Princeton and Yale: Admissions factors begin, of course, with the core academic criteria, including not just grades and test scores but teacher recommendations and state, regional, national, and international awards…. In the vast majority of cases, however, they are not themselves decisive, and the process continues. Admissions officials give special attention to, among others, applicants from economically and/or culturally disadvantages backgrounds, those with unusual athletic ability, those with special artistic talents, those who would be the first in their families to attend any college, those whose parents are alumni or alumnae, and those who have overcome various identifiable hardships. (emphasis by Bowen et al.)7

Equity and Excellence makes clear that the statement made in the brief is simply not true. Comparable data are not yet available for law schools, but there is every reason to assume that we are not doing a better job than undergraduate schools of enrolling low-income or first-generation college students, if only because our admissions pool is narrowed at the college level.

Now, I do not mean to suggest that law schools should focus on socio-economic status instead of race or ethnicity in admissions. We need to be concerned about both. Indeed, African American children who are born in the bottom quartile of family income are nearly twice as likely to remain there as adults as are white children whose parents had identical incomes, and are four times less likely to attain the top quartile.8

But legal academics have the ability to influence admissions policy in law schools. Does your school act affirmatively to enroll students from low-income families or those who are the first in their family to go to college? Bowen and his colleagues describe a typical meeting of a college admissions staff. When an outstanding soccer player was considered, everyone in the room paid close attention, and everyone knew that the coach and athletic director were, in effect, watching. Similarly, when a legacy candidate was considered, it was clear that representatives of the alumni office and even the president’s office were there in spirit. The question for all of us is: who is watching out for an applicant to law school from the most modest circumstances?

1Special Report: Meritocracy in America, The Economist, January 1st, 2005 at 22.
2Id.at 23.
3Tom Hertz, Understanding Mobility in America, Paper for the Center for American Progress, April 26, 2006, at 2.
4Center on Budget and Policy Priorities, New Release October 22, 2006 (based on Congressional Budget Office data).
5United Nations Human Development Indicators 2005 at 270.
6William G. Bowen, Martin A. Kurzweil, Eugene M. Tobin, Equity and Excellence in American Higher Education 95, 98 (2005).
7Id. at 175.
8Hertz at 1.