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No matter how it turns out, the landmark litigation against the University of Michigan now before the Supreme Court may trigger long-lasting changes in the way the nation’s law schools choose their students. The pair of affirmative action cases set for argument April 1 — Gratz v. Bollinger, No. 02-516, challenging Michigan’s undergraduate admissions policy, and Grutter v. Bollinger, No. 02-241, a test of Michigan’s law school admissions — could have a dramatic impact on race relations in general. “Substantial damage will be done” to opportunities for minorities if Michigan loses, says Theodore Shaw, associate director of the NAACP Legal Defense and Educational Fund. “In some ways, we would be worse off than pre-1954, because at least before 1954 we had ‘separate but equal.’ “ But the law school case, some argue, has already had an impact by laying bare, in extraordinary detail, the imperfect system that most public and private law schools use to screen candidates for admission — a combination of law school admission test scores and grade point averages, supplemented by consideration of race in order to yield even a modest number of qualified minority applicants. The cases, says former Acting Solicitor General Walter Dellinger, are “prompting the law school community to take stock in a serious way.” Dellinger wrote an amicus brief on behalf of the Law School Admission Council, which administered the LSAT to 148,014 applicants this academic year. If Michigan loses, Dellinger says, “it’s fair to say that very substantial changes will be made [to admissions programs].” Most of the more than 65 briefs on the side of Michigan strike a common theme as they explain how their admissions procedures work: the Court should keep its hands off. “Removing racial and ethnic considerations from the admission process would have a devastating impact on the number of African-American and Latino students who would be admitted to law schools,” says the Society of American Law Teachers. The American Law Deans Association adds, “Explicit consideration of race protects the compelling interest in selective admission standards.” But critics say the spotlight on law school admissions could — and should — have a paradoxical effect, prompting law schools to strive for a better, less-elitist way to screen potential students, no matter how the Supreme Court rules. “The case may well reshape the way law schools think about how much weight to give to the LSATs. It will shake things up across the board,” says San Francisco lawyer Michael Savage, author of a brief for FairTest, a testing reform advocacy group. Already, the American Bar Association, whose Council of the Section on Legal Education accredits law schools, is considering policy changes that would signal to law schools that they may give less weight to LSATs. The ABA has been criticized for compelling law schools to place too much emphasis on LSATs, to the disadvantage of minority students, who tend to score lower than white students. “A lot of law schools are searching, trying new and better ways of getting the very best students, with the analytical skills needed, but also leadership potential and other skills, and race and ethnicity is a part of that,” says E. Thomas Sullivan, chairman of the ABA council and former dean of the University of Minnesota Law School. Sullivan has already scheduled a forum to discuss the high court ruling at the ABA’s annual meeting in August. “Surely, whatever the Court decides, we will all be re-evaluating what we do,” he says. For now, because of the low number of high-scoring minorities, some explicit consideration of race is necessary, the law school briefs agree. “There is literally no chance” that significant numbers of minority applicants would be admitted to the law school “under any race-blind admissions program,” according to the University of Michigan Law School brief, written by Maureen Mahoney, a D.C. partner at Latham & Watkins. Mahoney will argue Grutter for the school. Ending affirmative action, she adds, would “force most of this nation’s finest institutions to choose between dramatic resegregation and completely abandoning the demanding standards that have made American higher education the envy of the world.” On average, according to briefs filed in Grutter, African-American students score 9.6 points lower than white students on the LSAT — a significant gap that would often mean rejection at many of the more selective law schools. In last year’s incoming law school class, according to the Law School Admission Council brief, 4,461 law school applicants scored 165 or higher on the LSAT and had a grade point average of 3.5 or more. Of those 4,461, only 29 were black. “The raw numbers are startling,” says Dellinger, but they necessitate taking race into consideration. But to Lawrence Velvel, law schools are drawing the wrong conclusion from the numbers. “The aptitude test has made affirmative action necessary,” says Velvel, dean of the Massachusetts School of Law in Andover, which is not accredited by the ABA. “They could rid themselves of affirmative action by ridding themselves of the test.” Velvel, a veteran of battles with the ABA over his school’s accreditation, says that his admissions committee is completely and deliberately unaware of applicants’ test scores or racial or ethnic affiliation. “We look at a lot of different things,” he says. “If they came out of a tough neighborhood in Boston, that’s good.” The result of using this “holistic” approach to admissions, Velvel says, is a student body that is 20 percent to 25 percent minority. “The law schools are riding two horses in this case,” says Velvel. “They use the LSAT and the system the ABA said was necessary to have qualified students, but then they say they need race-based affirmative action programs because the system they use fails to pick up students who are qualified.” Ironically, law schools’ use of the LSAT began after World War II with egalitarian impulses. When the GI Bill spawned a burst of new applicants to law schools, many institutions faced for the first time the prospect of admitting students from states, communities, and families that were unfamiliar to them. “It was a way of stepping outside the local network to give people a chance who did not have a personal relationship to the school,” says FairTest’s Savage. “But we see now that it ends up keeping the barriers high.” Critics offer several reasons why the LSAT has developed into a barrier, not a gateway, to attracting minority applicants: Poor test design, deficits in undergraduate education, increasing competitiveness among law schools, pressure to maintain ABA accreditation, as well as law school rankings in U.S. News & World Report. “It is an objective number by which ‘elite’ law schools can maintain their hold on the top ranks of the U.S. News pecking order,” says Catholic University law school Dean Douglas Kmiec, one of the few law deans who oppose the Michigan program. “Without the ease of numerical reporting,” he says, “admissions counselors and deans would have to read files far more carefully and with greater discernment.” The American Law Deans Association brief says “holistic or full-file admissions” procedures may help to increase “experiential diversity” but would probably not increase minority enrollment: “There is no reason to expect dramatic contributions to diversity from these procedures.” The Association of American Law Schools states flatly that from its own survey of race-neutral procedures, “none of the proposed alternatives is feasible for selective law schools.” Of the two programs facing Supreme Court scrutiny, the law school program is generally viewed as having a better chance of prevailing than the undergraduate program at issue in Gratz. The undergraduate policy, which gives minority applicants a 20-point boost, may be too explicit a consideration of race for the Court to abide — even though other factors such as legacy can give applicants a similar advantage. At the law school, by contrast, no specific number is attached to minority status, placing the admissions program closer to the Harvard University plan that five justices approved of in the 1978 case Regents of the University of California v. Bakke. “Race is not the predominant factor,” says the law school’s brief. But critics say that the Michigan law school’s goal of reaching an undefined “critical mass” of minority students amounts to a quota that the justices will also find unacceptable. “The fact that the attainment or loss of ‘critical mass’ can be measured with respect to numbers is a clear indication that a quota system is in use,” says the brief for Barbara Grutter, the white student who initiated the suit after being rejected for admission to the law school in 1996. On one point, most law school advocates are in agreement: Solicitor General Theodore Olson’s brief does not point to a workable alternative for law schools to adopt if, as it urges, race is ruled out as a factor in admissions. The brief mentions programs in place at undergraduate public universities in California, Florida, and Texas that admit top students from their state’s high schools. Critics say that those programs, also mentioned by the government in the undergraduate case, have no relevance to graduate programs that cannot, by analogy, simply admit all top students who apply from thousands of colleges around the country. Olson’s compromise brief was reportedly the result of conflicting pressure within the administration over the hot-button issue of affirmative action. “It is one of the intellectually weakest briefs I’ve ever seen the United States file,” says Dellinger, in a rare rebuke of a successor. “It has a hole in the middle of it the size of Detroit. It’s as if some pages fell out of the undergraduate brief on the way to the printer, and they were stuck back into the law school brief by mistake.” Olson declined to comment.

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