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The national debate on affirmative action, perhaps the most critical and controversial racial issue in the country today, increasingly revolves around law schools. The latest case: Grutter v. Bollinger, an ongoing, potentially precedent-setting, action involving the admissions policy at the University of Michigan Law School. Law school admissions cases emerged as a focus in the affirmative action debate in 1996, when the 5th U.S. Circuit Court of Appeals startled legal observers by ruling in Hopwood v. State of Texas that the University of Texas law school could not consider race in its admissions policies. (The landmark 1978 Supreme Court case Regents of the University of California v. Bakke, thought to be the controlling case on the issue, allows room for considering race in university admissions.) Since then, a handful of admissions cases have come out in conflicting ways, creating a complex tangle of opinions. Now comes Grutter. In 1997, Barbara Grutter, a white student who had been rejected for a spot at the Michigan law school, filed suit against the university, citing discriminatory admissions policies. Grutter’s case (which will be argued with a similar Michigan undergraduate case before the same panel of appellate judges) went to trial on Jan. 16, 2001, and on March 27 of this year, U.S. district judge Bernard Friedman ordered the law school to stop taking race into account. Nine days later, however, the 6th U.S. Circuit Court of Appeals stayed that order. The hearing is now scheduled for en banc review by the court on Dec. 6. Regardless of the outcome, Grutter is likely to be appealed. Eventually, U.S. Supreme Court watchers say, Grutter may well be used by the Supreme Court to resolve the division among the lower courts on this issue. The Rehnquist Court has generally refrained from making broad judgments on affirmative action, preferring instead to limit its decisions to relatively narrow grounds. What the Court will do about Grutter, of course, is anyone’s guess. But the future of law school admissions, and of affirmative action in general, will surely be shaped by the case. What follows is a wide-ranging debate about affirmative action and the Grutter case between University of Michigan Law School Dean Jeffrey Lehman and a lead counsel for the plaintiff, Lawrence Purdy. Their discussion makes plain just how divisive, and difficult to resolve, the issue of racial preferences — at law schools and in society — can be. JD Jungle: What’s the single most compelling argument for or against affirmative action in law school admissions? Jeffrey Lehman: The most important thing to recognize is that we do not currently, in America, live in a society where it’s possible to have both racial integration in the best law schools and a rigidly colorblind admissions process. So we have to choose. I think everyone in legal education today agrees that there are extraordinary educational benefits that come from studying the law in a racially integrated environment. A well-educated cadre of lawyers has benefits for our legal system and for our entire society. And right now — in America today — racial integration just doesn’t happen accidentally. Lawrence Purdy: Alan Dershowitz wrote some time back, in criticizing [the Bakke decision], that “there can be no serious doubt that significant costs — both moral and constitutional — inhere in allowing a state or university to consider race qua race in admissions decisions. At the most fundamental level it is simply wrong to do so. To reward some persons for the accident of their race is inevitably to punish others for the accident of theirs.” And that’s the reason. Our sad history with race should have taught us lessons that we seem somehow too quick to forget. Plainly and simply, it’s wrong. JDJ: If you don’t use racial preferences to achieve racial diversity in law school admissions, is there any other way to achieve racial diversity today? LP: Absolutely. You can increase your outreach, you can increase the recruitment. And I think we all understand that we need to do much more in terms of K-12 education. We face difficult problems in preparing young men and women to become students who may have the opportunity someday to apply and be accepted to a school like Michigan. So there’s a great number of things that we can do to ensure that racial diversity remains part of our national fabric. Even without using race in admissions, every year you’re going to have a diverse racial make-up. There are talented young men and women of every race and ethnicity who are admitted to all of the law schools and the undergraduate schools, including the very top ones. JL: I know that Larry is sincere when he says that he believes that we can have meaningful racial diversity without affirmative action today. The trouble is, we have experience with this. The problems of K-12 inequality and segregation more generally in society are real and present, and their effects are significant. Look at the University of California, Berkeley’s law school, Boalt Hall, where they have been operating under the policies that Larry favors since Proposition 209 [a 1996 California law prohibiting state institutions from using race and gender-based preference policies]. The effects at that law school were dramatic. In the fall of 1997, there was one African-American enrolled in the entering class. In the fall of 1998, there were eight. In the fall of 1999, there were seven. In the fall of 2000, there were seven. This is not meaningful diversity. This is not sufficient to provide the kind of robust discussion in a class so that when an African-American student speaks, she is seen as an individual rather than as a token or as a spokesperson for her race. JDJ: Does having a “critical mass” of minorities improve the intellectual environment of a law school class? LP: All sorts of diversity add to a classroom — ideological diversity, religious diversity, socioeconomic diversity. We are not opponents of diversity. I just don’t think that skin color, in and of itself, necessarily adds to the diversity of a classroom. I think it’s the individuals and what each individual brings to the classroom that’s important. The phrase “critical mass” has simply become a method of imposing a quota on law school admissions. JL: First, Judge Friedman said in his [U.S. District Court] opinion that the interest in racial diversity is laudable. He went on to say that he didn’t think that interest was sufficiently compelling to legally justify the use of race. But what Judge Friedman was doing was recognizing that race is different. That race is not the same thing as socioeconomic status, or religion. It plays a significantly different and unique role in American society. Now, Larry argues that “critical mass” means the same thing as a quota. That simply isn’t right. The idea of a critical mass is a value. It’s a principle that is weighed against other principles in our admissions policy. And so what that means in practice is that the number of African-American students who enroll each year in our class varies dramatically. It is not a quota system. LP: What has been very clear is that each and every year from the date the Michigan Law School policy was adopted in April of 1992 up to the present, there’s never been less than 11 percent of the class made up of members of what the school calls “underrepresented minorities.” Basically, the court found that a minimum of 10 percent to 11 percent of the class every year is set aside for members of the targeted groups [African-Americans, Hispanic Americans, and Native Americans]. Clearly, it’s a quota. JL: I’ve got the numbers in front of me. In 1994, the total number of underrepresented minorities in the entering class was 73. In 1995, it was 46. In 2000, it was 66. So, yes, you can say it was always at least some minimum number. You could do that with any set of numbers. You can always say that there is a minimum number within the group. That’s not what a quota is. JDJ: What do you say to those law school applicants who feel that they are “cheated” out of slots by affirmative action programs? JL: First, the number of students who would have gotten in under a colorblind admissions process but didn’t get in under our admissions process is small. We’re talking about numbers on the order of, say, in 1997, when Barbara Grutter applied, 25 African-American students — total — in the entering class, some of whom would have been admitted under a colorblind admissions process anyway. So we’re talking about a very small number of truly affected nonminority students each year. To those students, I would say this: It is almost certainly the case that they ended up being admitted to another very fine law school, and that very fine law school that they ended up attending also employed an admissions process that was designed to produce a racially integrated student body. And so, in the end, they ended up experiencing the benefits of studying in a racially integrated environment. Not at Michigan, but I would venture to say that, in the end, they probably got a better education studying at another fine law school in a racially integrated environment than they would have had if they’d come here in a racially homogeneous environment. LP: The point is, we’re dealing with individuals. And to suggest that, because it’s only a small number of persons who may have been rejected based on their race, just misses the point. No person should be rejected based on their race. The fact that it may be a small number as opposed to a large number doesn’t do anything to rectify the injustice to each individual. Now let me comment about what Dean Lehman says about those white and Asian-American and Arab-American applicants who, because of their race, may have gotten in under a colorblind system but didn’t and were accepted to some other law school. I cannot imagine that the same would not be true for every minority student who may have come into Michigan because race made a difference. I can’t imagine that those students would not also have found a place in another school. JL: That’s not the point. The point is not that they would have attended another law school. The question is whether they would have attended another law school that could be said to be racially integrated in a meaningful way. JDJ: Some people say that affirmative action programs do more harm than good, even for the people they’re intended to benefit. They say it stigmatizes people. Does it? JL: It’s interesting — that’s an argument that’s advanced far more by white people than it is by members of minority groups. The usual response that I hear is that it is far more stigmatizing to be excluded than to be included. The argument is that the stigma is so significant that members of minority groups would be better off if they went to less selective institutions. The data shows that’s just not true. By and large, students are better off going to the best school that they are admitted to. If you look at the careers of all of our graduates, what you find is that there are not statistically significant differences in the level of career satisfaction, the level of income, the bar passage rate, any of the indicators of success that you might want to look at. There are not statistically significant differences by race. LP: I think that the literature is quite strong — and mainly from African-American observers — about the effects of stigma that are inherent in these policies. Dr. Shelby Steele, in “A Dream Deferred,” writes, “The [most] dehumanizing and defeating thing that can be done to black Americans, for example, is to lower a standard in the name of their race.” The fact is, you want high expectations for everyone, and when everyone meets these same expectations, their equality becomes unassailable. The really tragic effect of these policies is the one felt by so many students for whom race played no role in their admission. If it’s a campus where race preferences are known to be a part of the admissions process, there’s an automatic presumption that that’s why they’re there. That’s terribly unfair to these students, and there’s no question that many of them feel that. JL: The kind of stigma problem that Larry is describing follows from the implicit suggestion that the students are not qualified to be there. The problem is that that’s wrong. Many people have the mistaken impression that under affirmative action all one has to do is check a box indicating that one is African-American and one will be admitted. The truth is that at Michigan, again in 1997, when Barbara Grutter applied, 39 percent of our white and Asian-American applicants were admitted. Only 34 percent of our underrepresented minority applicants were admitted. We have a strict admissions policy that applies to all students and says: We are not going to be admitting students who aren’t qualified to be in school, to do the work, to operate as peers within the classroom. LP: We’ve never suggested that Michigan would intentionally admit anyone that’s unqualified. But what the evidence does show is that while a broad pool [of applicants] may technically be qualified, there nevertheless has been a clear showing of different academic standards, different test score standards being applied, depending upon race. So in essence, there’s a dual system, and that’s where the stigma is involved. JDJ: Will the Michigan Law School case reach the U.S. Supreme Court? If it does, how will it come out? LP: I don’t predict what judges will do. I do presume that each judge at the 6th Circuit and each justice on the Supreme Court will follow the law. If they do that, I believe the trial court’s analysis of the issues will be upheld. JL: I’m confident that the case for affirmative action in higher education, and for the constitutionality of the admissions policies that we employ, is, in fact, even stronger today than it was in 1978. So I’m confident that Bakke will be reaffirmed by the Supreme Court.

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