Law in Contemporary Society
-- GueinahBlaise - 12 Mar 2022

Grades Shouldn't Matter, but for Marginalized Persons Trying to Achieve Career Advancement They Do


“Grades don’t matter.” This sentiment has been repeatedly expressed throughout our classes this semester. It is a phrase that seeks to reassure, comfort, afford us some control over our law school careers. Yet, many students, myself included, are resistant to the idea. While I cannot speak for all of my peers, I suspect that some reject the phrase because they experienced first hand the opportunities that their grades afforded them. Without those grades, Columbia Law School and the doors it unlocks would have never been accessible to many of us in this class. Are these grades in any way a qualifier of excellence, who we are as people or what kind of attorneys we will be? Likely not. However, with the odds stacked against those of us in marginalized communities, we don’t have the luxury of ignoring your grades.

Professor Moglen suggests that the statement "Grades don't matter" is incomplete unless we say "don't matter for what?" or "don't matter to whom?" While it is an interesting suggestion, I wonder to what extent these notions can be separated. I believe that for many students of color these are not separate statement but an inseparable compound one. By the end of our time together I think I've settled on the following idea: For marginalized people, grades "matter" to achieve career advancement in the legal profession. While wealthy cis white men may disregard their grades with little consequence, marginalized folks have to add importance to their grades because grades are some of the only forms of armor they have against biases and stereotypes.

Education to Climb the Socioeconomic Ladder

Professor Moglen asks, "grade matter for what?" At a very basic level, grades matter to those using educational advancement to climb the socioeconomic ladder. If a person’s goal is to be an attorney making enough money to support themselves and their families, as is the case for a lot of first-generation aspiring lawyers, there is little flexibility on the road towards this goal. The likelihood of achieving this goal without having good grades at some point in their academic careers is slim. Working backwards, there are very specific careers that can offer this goal. In most major cities, a job as a public defender or as a civil rights attorney at the ACLU simply does not pay enough to support a person and their family. The average salary for a staff attorney at the Brooklyn Defender Services is about $65,619. It is about $58,048 for the ACLU staff attorneys. In an expensive place like New York that is barely enough to support two people, let alone a family. The calculation a lot of people make is that the most likely route towards the above described goal is through Big Law and/or in-house position.

The question then becomes can you work in Big Law without getting good grades? The answer here is both yes and no. BIPOC, first-generation, and/or low income students, have so many factors working against them on the road to Big Law, that they are often left with little choice but to choose the path of least resistance: getting good grades. It is a domino effect. Getting good grades in the middle can lead to scholarships at prestigious high schools. Stellar grades at those high schools help tremendously when applying to top tier colleges. Finally, stellar grades at those colleges turn into admissions at top law schools which, with good grades, turn into BigLaw jobs. The more prestigious the institution, the less difficult the journey towards socioeconomic mobility.

For Black and Brown folks its the stereotype of being uneducated, stupid, and lazy. We know that going into every job application or interview, instead of starting with a blank slate like our white counterparts, we must first erase the stains of these centuries old stereotypes. Our grades are the first step towards doing this. They help combat the assumption that we’ve gotten into the spaces that we are in because of affirmative action. This is true regardless of the law schools that we attend. It does, however, help to break into these prestigious schools because they are yet another marker, vouching for the fact that they are not the stereotype that these firms may fear. The stamp of approval from a prestigious institution like CLS, rarely happens without good grades (just look at the median grades and LSAT scores).

No matter what a person wants to achieve, whether they have the luxury of believing that “grades don’t matter” has a lot to do with the amount of privilege they have. Rich, white, men are not combating the same institutional barriers and social stereotypes that people in BIPOC, low income, first-generation and/or immigrant communities have to overcome daily. The more marginalized identities a person has the less their margin for error is and the harder it is to gain socioeconomic mobility without good grades. The what is inevitably affected by the who.

Career Advancement

Even once BIPOC people get the Big Law job or prestigious position, the stench of bigotry and bias they are often still plagued by bigotry and bias. Take the new Supreme Court nominee, for example.When President Biden nominated Judge Ketanji Brown Jackson to the Supreme Court many Black women, myself included, braced ourselves for what we knew was going to be a confirmation process riddled with racism, misogynoir and prejudice. Less than a day after Jackson’s nomination, these concerns were actualized when Tucker Carlson got the misogynoir train rolling on his show, demanding that Jackson release her LSAT scores to prove that she is qualified to serve as a Supreme Court justice. If he really cared about excellence, Carlson would have demanded Judge Jackson's record as a circuit judge, not her LSAT score. The fact that Carlson felt bold enough to question Judge Jackson’s scores and grades has nothing to do with upholding the prestige of the Supreme Court or Judge Jackson’s credentials, and everything to do with who she is, Black woman. Once again the what, in this case becoming a Supreme court judge, is affected by the who, a Black woman.

Unfortunately, Carlson is not alone in his bigotry. Biden’s pledge to nominate a Black woman to the Supreme Court caused great controversy, with some calling it reverse discrimination. The overwhelming sentiment among many white commentators was that he should focus on hiring someone qualified, not playing what they perceived to be identity politics by choosing a Black woman. Therein lies the racist assumption that Black women are inherently unqualified. It is this assumption that Jackson has to endure. Thus whereas other white nominees like Justice Kavanaugh and Barrett were approved with no whispers of their grades or LSAT scores, Judge Jackson’s good grades are able to help her withstand these racist attacks on her qualifications.


The reality is that, while grades should not matter, for BIPOC, first-generation professionals, and low income folks, they do. The problem I see with separating the questions that "grades don't matter" for what and for whom is that, our society does not see the goals, desires, and achievements of BIPOCs in a vacuum. Perhaps what I am suggesting is not that Professor Moglen is entirely wrong. But rather that, as it stands, in our current society, the "who," behind the statement "grade don't matter" is a huge factor in determining the accuracy of the statement.

Are grades an end-all-be-all? Of course not. But for those of us who are already fighting the uphill battle for socioeconomic mobility, poor grades are a significant barrier to add to the already long list. They can serve as a confirmation of racist, elitist biases that presume we are unqualified for the positions of power we hold and that we are undeservedly handed accomplishments. While I would love to change this reality, I've spent the last few month racking my brain for a solution both in and out of the law school environment, and I've come up empty. Unless the biases present in the minds of those in the legal field can be erased, I don't see how, for BIPOC, grades can become irrelevant.

It is true that the more socioeconomic capita they amass over the years, the less the grades matter, but, in the face of such prejudice, even a stacked resume and years on a circuit bench does not help. BIPOCs can still have some mediocre white man demanding to see those grades, trying to disqualify them and belittle their accomplishments. Should grades matter? Perhaps not. However, unless you’re a wealthy, white man, they do.

This draft concludes that an idea of mine is wrong (and "inaccurate"). As I have suggested as one of the basic ideas of this course, law school tends to induce in us the bad habit of treating ideas as either right or wrong, rather than the better habit of combining ideas rather than judging them, to see where they will lead us. The idea this draft expresses is actually not merely the contradiction of mine; it's a different idea that can usefully be combined with mine in a number of ways. Taking any of those ways would very much improve the next draft.

Let's begin by seeing what we have. "Grades don't matter" is only half of any idea. We don't complete the idea until we say "don't matter for what?" or "don't matter to whom?" Our two ideas address those two distinct forms of question. What I say more specifically is, "the grades you receive in law school courses turn out to have no influence on your ability to build a successful and fulfilling life in practice. " What you say, you have specified very well in this draft. I would put it in a similar brief sentence by stating your idea as "some people have to regard their grades as more important than other people do, because they are subject to the oppressive weight of hostile judgment in all their professional and many of their social relationships, and having the best grades is one form of armor they cannot disregard." These ideas do not contradict one another. One is of the type "matter to what?" and the other is about "matter to whom?" They also draw on different forms of social understanding and interpretation. For what little it might be worth, I would say they are both "right." Put together, much can be made of them.

In one sense, my idea could be proven either right or wrong. We could collect all the grade information about Columbia Law students over the last century and survey living graduates to learn from them about their lifetime career paths and levels of personal and professional satisfaction. We could study the reasons why some graduates are no longer living. In the end, we might be able to tell with some degree of confidence how my hypothesis stands independent of my own experience in forming it. But in the meantime, I have what I have learned from 35 years of law teaching and 20 years of hiring lawyers in a teaching practice from which they have then gone on to other phases of their practices and their lives. This is not the basis of a scientific conclusion. That's not its genre: it is, however, the experienced-distilled advice of a lawyer who has reason to know. What one does with such advice is not either to adopt it as dogma or to reject it as "inaccurate." That's not the way lawyers talk and listen to each other, because they know how to get more value from another kind of dialogue.

Your idea in this draft is also the basis for important questions that are not about its validation or disproof. As you said when we discussed this point, it's not as though your idea implies approval of the importance of good grades as armor. Our ideas consiliently show from two different directions why it would be desirable to make basic change. You know from my EvaluationPolicy what I believe to be the best direction of travel. My life's work tells me that we should eliminate grades in favor of narrative evaluation based on continuing interaction between teachers and students on the basis of shared writing. That evaluation should be based as much as possible on students' initiative in choosing what they want to learn, how they want to conduct the timing and cycle of reflecting, reconsidering, consolidating learning and planning new learning, and should be treated as editorial rather than judgmental activity in the student/teacher relationship. This would work better, in my view, because it produces better education in two ways: first, it helps students learn more and enjoy learning more; and second, it models the relationships that lawyers have in daily life in practice, and helps students socialize to good collaborative work patterns that will make them better in whatever practice they're part of.

In this context, your idea about armor against prejudice is, as I say, absolutely "right" to me. The milieu in which I grew up believed that completely, too. In order to be stronger against race hatred, we also were taught, "you need to be better." This is the armor called excellence. Starting from your premise that it is indispensable also involves considering the ways in which grades are only one way of declaring excellence, and one that can be used against as well as for us. We know that grades don't actually equal excellence. So from this direction too it makes sense to ask what other measurements would help us to ensure that excellence is actually acknowledged, not subjected to scores that can themselves be made to contain and legitimize bias. (This I think is the point you are making in your comments on the confirmation hearings for Justice Jackson.) Where does your idea lead you with respect to how learning in law school should be evaluated so that excellence is justly recognized and recorded?

The principles I think should be used to evaluate learning in law school are the result of four decades as a participant, student and teacher, in law school; and more than three decades as a lawyer, worker and supervisor, practice-participant and practice-builder. They're being used in this course. I have built my courses, the technology that delivers them, the habits of my working life in teaching and practice, all around my evolving conclusions as to what would make law school work better for everyone, teachers and students from all walks of life. I therefore think that we can see one possible way to combine our ideas by looking around us right here. I am constantly trying to learn from what happens here and adapting what is to what I think ought to be. In the end, of course, there also have to be grades, because the occupation continues.

So it seems to me we have lots to discuss about something that interests us both very much and about which I have been thinking pretty hard for way longer than you have been alive. It's not lawyering, I think—but rather just bad law school habit—to begin the conversation by trying to figure out who is wrong.


Webs Webs

r3 - 07 Jun 2022 - 21:01:24 - GueinahBlaise
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