Legal Times
Damani Taylor stands in front of the U.S. Supreme Court building as justices were debating the case of Fisher v. University of Texas.
Photo: Jeff Malet
Santa Clara Law School visiting professor Jackie Gardina
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.
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