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The National Law Journal
Law school campuses have slowly grown more racially diverse during the past decade, to the point that minorities now account for 25 percent of law students nationally. But legal educators worry that the U.S. Supreme Court will use the closely watched Fisher v. Texas to curtail the use of affirmative action in college admissions and derail this modest progress.
"Even without a so-called affirmative-action ban, law schools aren't doing great in terms of diversity," said Vermont Law School professor Jackie Gardina, co-president of the Society of American Law Teachers (SALT). "Schools are still struggling to fill a class that is representative of the people who live in this country, and that's without a real roadblock from the Supreme Court. Would we move to 95 percent white if they were to ban it?"
AFFIRMATIVE ACTION BACKED
Legal educators as a group consider affirmative action their most effective tool in boosting diversity, and they haven't been shy about expressing their support for it. A significant portion of the 73 amicus briefs backing the University of Texas' affirmative-action plan in Fisher were submitted by law professors or law school advocacy groups, including the Association of American Law Schools, the Law School Admission Council and SALT. Also participating were Martha Minow and Robert Post, deans at Harvard Law School and Yale Law School, respectively.
Chief Justice John Roberts Jr. famously declared in 2007: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." But the amicus briefs argue that it would be virtually impossible to admit diverse law classes without taking at least some note of race. Minority applicants are less likely than whites to score high marks on the Law School Admission Test and achieve high grade-point averages, they said. And some of the amici argued that diversity in the classroom benefits all students by helping to break down stereotypes and expose them to different perspectives. Others argued that law schools have a moral imperative to help increase the number of minority lawyers in the United States.
"This is something that all of us are watching very closely," said Andy Cornblatt, dean of admissions at Georgetown University Law Center. "The general concern is that affirmative action, in one way or another, won't survive this court. If that happens, every admissions official will say, 'OK, what do we do now?' "
Fisher challenges the constitutionality of the University of Texas' undergraduate admissions process, which weighs race as one of six factors to evaluate applicants to the Austin flagship campus who don't gain admission through the Top Ten Percent Plan. (Applicants who graduate in the top 10 percent of their Texas high school classes are admitted. Those high achievers account for the majority of Austin undergraduates.)
The court's most recent ruling on affirmative action, 2003's Grutter v. Bollinger, involved University of Michigan Law School's plan. The court allowed colleges and universities to consider race as part of a "holistic review" of applicants in order to achieve a "critical mass" of underrepresented students, but barred them from implementing a quota system for minority students.
Plaintiff Abigail Fisher, a white applicant who was denied admission in 2008, has asked the Supreme Court to find that the university's admission process doesn't comply with Grutter or, alternatively, to overrule that precedent entirely. That essentially would ban affirmative action in higher education. The court heard oral arguments on October 10.
The court could find that the university's admissions process complies with Grutter. Or it could further narrow when and how race may be considered, which would have ramifications for undergraduate and graduate programs alike, admissions officers said. Finally, the court could overrule Grutter an outcome most feared by legal educators, as they no longer would be able to consider race as a factor. Justice Anthony Kennedy is widely considered the swing vote.
Richard Sander is a professor at the University of California at Los Angeles School of Law whose research argues that affirmative action hurts minorities because they often struggle to keep up academically. (Justice Clarence Thomas has expressed a similar view that affirmative action promotes tokenism.) Sander predicted that Kennedy would push for greater transparency about how schools weigh applicants' race. The "holistic review" of applicants endorsed in Grutter has "encouraged universities to hide the ball on admissions practices," he said. If law schools were subject to greater transparency, race would play less of a role in admission decisions, he said.
In fact, the extent to which race plays a role in law school admissions is not entirely clear. Despite the pending Supreme Court case, affirmative action remains a sensitive topic; a number of admissions deans declined requests to discuss how race factors into admissions or how they might adjust to a ban on affirmative action.
Even government researchers have had trouble pinning down the role of race in law school admissions. The U.S. Commission on Civil Rights held a briefing in June 2006, partially in response to proposed legislation that would have required universities and colleges receiving federal money to explain to the U.S. Department of Education how they weigh applicants' race.The bill failed, and the commission concluded: "Little information is currently available concerning the extent to which law schools consider race in their admissions decisions and the academic and career fortunes of their intended beneficiaries."
Because the Supreme Court has banned campuses from using quotas or awarding minorities any points advantage, it's harder to nail down how much difference race makes, Cornblatt said. "Race is a factor in that the faculty believes in having a critical mass of minority students," he said. "To get there, you add race into the mix of things you consider. But we don't do math in this office. I can't point to a formula."
QUANTIFYING RACE'S ROLE
Researchers and interest groups have attempted to quantify race's role, particularly at public law schools, which are subject to open-records laws. For example, the conservative think tank the Center for Equal Opportunity last year analyzed 2005 admissions data from the University of Wisconsin Law School and concluded that the school admitted a much higher proportion of blacks than whites or Asians with equivalent or higher academic credentials.
Separately, Sander analyzed admissions data from six public law schools both before and after Grutter and concluded that admissions became more focused on race following the ruling. Both he and Cornblatt predict that diversity at the most selective law schools would decline should the Supreme Court ban affirmative action, but they were less convinced that such a ban would significantly affect the number of minorities in law school overall because they may simply matriculate at lower-ranking schools.
Perhaps the best indication of what law schools might look like in a post-affirmative action world can be found at public law schools in states that have independently ended the practice, including California, Florida, Michigan and Washington. A 2003 study of enrollment rates at five highly ranked law schools in such states found that the number of black students dropped by two-thirds and the number of Latinos by more than one-third.
Minority enrollment at Michigan declined by about 50 percent after the Michigan Civil Rights Initiative, which bans preferential treatment for minorities in college admissions, passed in 2006, said senior assistant dean for admission, financial aid and career planning Sarah Zearfoss. (The U.S. Court of Appeals for the Sixth Circuit overturned that initiative on November 15 on equal-protection ground, but it had remained in effect pending that ruling.)
Zearfoss joined Michigan's admissions office in 2001, just before a federal trial judge struck down the affirmative-action plan during the early skirmishing in Grutter. The intervening years until the Supreme Court's ruling were a blur of discussions in which law school admissions officers contemplated the future, she said. "I haven't seen as much activity this time around. It seems like there is a lot of room for the Supreme Court to make a lot of different decisions, which is why people might not be trying to get out in front of a negative decision."
Zearfoss worries that a national affirmative-action ban at the undergraduate level would narrow the pipeline of minorities who even consider going to law school. About 80 percent of the law school's applicants come from outside the state, where most universities and colleges do take race into account. "If you don't have the pool to begin with, the whole problem just gets exacerbated," she said.
There's no obvious way to achieve a diverse student body without considering race, but some admissions officials are contemplating different approaches should it come to that. Shifting the focus to socioeconomic standing might be the next best thing, Cornblatt said, but that could lead to a different set of problems. For one thing, gathering financial information about applicants would be complicated, he said. Furthermore, law schools might be reluctant to enroll students who can't pay full fare.
Gardina fears that eliminating race from the admissions process would prompt law schools to lean even more heavily on standardized tests that tend to favor white students. "If the Supreme Court says it's unconstitutional [to consider race], does that take the external pressure off law schools to become more diverse?" she wondered. "Will law schools be less likely to look past an LSAT score or a GPA? My fear is that this will interfere with the progress we've made."
Karen Sloan can be contacted at email@example.com.