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Race matters. So stipulate three of the four dissenters from the 5-to-4 en banc ruling by the 6th U.S. Circuit Court of Appeals in Grutter v. Bollinger, upholding the University of Michigan Law School’s admission policy. Their stipulation notwithstanding, these three dissenters view the law school’s use of race as an unconstitutional as well as trivial basis for influencing admissions decisions, which allows less “qualified” minority applicants to gain acceptance over more “qualified” nonminority students. The dissenters reach these conclusions because they misunderstand three crucial realities about the nature of race in our society and how it matters in the context of law school admissions. First, race is a complex concept that undoubtedly influences our collective experiences and perspectives; it is much more than skin color or ancestry. Second, what the dissenters value as “objective” criteria for admission in fact systematically build in preferences for students by race and class and at the same time are unreliable predictors of future success for white and nonwhite students alike. Third, the role of race in the admissions process has much to teach us about the need to reconceptualize admissions and educational practices for all students to better serve the core values of public institutions of higher education. To illustrate his view that race is an illusory concept that should be irrelevant to admissions, dissenting 6th Circuit Judge Danny Boggs wrote that he’d shown “a sample of people” in and out of his chambers a Christmas card, “containing a lovely picture of a friend and his spouse, their two children and their spouses, and four grandchildren.” The physical appearance and, thus, the ancestry of at least one photo subject was apparently open to interpretation. “How many of the ten people in the picture should receive racial preference under Michigan’s policy?” asked the judge. Answers ranged from one to 10, from which he concluded that race cannot be a surrogate for qualities that a law school should value. Few would dispute that race as a universal biological category or as a generic and unassailable social signifier is a fiction or a fraud. But race matters as a function of context. When we use the term “race,” we may mean physical race, social race, cultural race, and/or political race. Race is not necessarily limited to what you look like; it may implicate what you look like in conjunction with your lived experience as an individual associated in our culture and our classrooms with others “similarly situated.” Race includes what happens when you apply for a mortgage, try to hail a cab in a certain neighborhood, get stopped by the police while driving along the New Jersey Turnpike, or raise your hand to speak in a law school classroom; race also embraces the multiple ways those experiences affect your vision of social justice, your self-confidence, and your sense of obligation to give back to the larger community. What we loosely call “race,” based on a combination of conventional markers, sociopolitical status and a complex set of experiential factors, also shapes a collective sense of self and a shared commitment to a linked fate for many people of color. As a result it can and often does matter in surprising ways with regard to the role of students in law schools and beyond. The “objective” criteria that schools employ systematically privilege individuals from certain racial backgrounds (predominantly white) over others (predominantly black and Latino). Yet a study by Michigan law professors Richard Lempert and David Chambers, assisted by researcher Terry Adams, found that black and Latino graduates outperform white peers in key areas that the University of Michigan Law School has identified as central to its mission, namely leadership, professional success and contribution to the community. There are many reasons for this apparent anomaly. First, the idea of testable aptitude — as embodied in the all-important LSAT — is not reliably predictive of performance in law school. Nationwide the LSAT is 9 percent better than random in predicting first-year law school grades, and this is what the test is best at predicting. Nor do such high-stakes aptitude tests consistently identify applicants who will succeed in the profession or later in life. For example, the Lempert, Chambers and Adams study found a negative relationship between high index scores (including LSAT scores) and subsequent community leadership or community service. “In all decades, those with higher index scores tend to make fewer social contributions … than those with lower index scores.” Excessively weighting the LSAT — an obsession the dissenters share with the law school itself — is therefore inconsistent with the University of Michigan Law School mission statement, according to which the school “looks for students likely to become esteemed practitioners, leaders of the American bar, significant contributors to legal scholarship, and/or selfless contributors to the public interest.” The school also expects that all those it admits will “have a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others.” Moreover, the study found no relationship between the school’s admissions index and financial satisfaction of its graduates, and it found a statistically significant relationship between high index scores and career dissatisfaction for the 1980-89 cohort. The LSAT does not dominate admissions decisions because it predicts the successful lawyer or even the successful law student, but because it makes a difficult task seem simple and because it correlates with law school rankings by a newsmagazine. As a consequence, when the dissenters suggest that black, Latino and Native American candidates receive an unconstitutionally large boost in the admissions process, they are proceeding on the mistaken assumption (reinforced no doubt by the law school’s own overuse of the test) that the LSATs are an unimpeachable benchmark from which all assessments must flow regarding qualifications to study law, to practice law, and to use the law to pursue justice. In other words, those who score at the top of the LSAT scale are not necessarily more qualified. They are, however, consistently more privileged. Performance on these tests closely correlates with parents’ and grandparents’ wealth; it also correlates with applicants’ race and gender. It is not surprising, therefore, that upper-income blacks may benefit from affirmative action. Affluent blacks are simply the beneficiaries of the class bias in the LSAT, although not to the same extent as upper-middle-class whites and especially upper-middle-class white males. This is because comparable income does not translate into comparable wealth. As a result of intergenerational wealth transfer, middle-class whites, for example, enjoy a financial asset base roughly 55 times larger than that which middle-class blacks have accumulated, even when earning similar incomes. Moreover, as Judge Eric Clay points out in his concurring opinion, well-off blacks still face a variety of obstacles in a society characterized by deep institutional racism, obstacles that most whites do not notice or experience. In the name of color-blindness the dissenters see only race, even though it is the so-called hard variables that are themselves systemic proxies for race and class from which 85 percent of the admittees benefit. In the 1930s, “character,” the dissent tells us, was the reified value used to keep Jews out of the Ivy League. Today “testable aptitude” accomplishes the same thing: It keeps out poor whites, as well as blacks, Latinos and Native Americans. The real reason that poor and working-class whites are underrepresented at the University of Michigan Law School has little to do with affirmative action and much to do with the LSAT. The issues that converge around racial variables are actually a lens through which we can begin to question the settled core of admissions protocols and start a larger conversation about the role of public institutions of higher education. Racial diversity, for instance, does correlate with things the law school claims to value. A study by Patricia Gurin, cited by Judge Clay, finds that students who learn in a diverse environment begin to think in more complex ways and are better prepared to become involved citizens and community leaders. And both students of color and white students enjoy this benefit from active engagement in a diverse setting. Unlike the LSATs, race in all its complexity has become crucial to fulfilling the mission of the University of Michigan Law School with regard to the postgraduation success of its students. Indeed, the Lempert study found that the students most likely to achieve the law school’s mission and contribute to the community are the black, Latino and Native American students. Perhaps this outcome results from admissions officers spending more time on “soft” variables like community service or leadership in examining candidates of color. Or perhaps the alienation faced by many students of color in the classroom, discussed below, leads them to participate more in extracurricular activities where they learn the interpersonal skills they need to succeed. Either way, racial diversity clearly promotes the mission of the University of Michigan Law School. Similarly, this relationship between the relative number of black students in a classroom and their relative confidence as intellectual risk-takers — the critical mass argument advanced by the University of Michigan and affirmed by the Grutter majority — can become an important lens on other aspects of the legal academy, including classroom pedagogy. At Harvard Law School, where 80-person first-year sections contain only a handful of black students, an extensive internal deliberation process preoccupies some black students. They are apprehensive about being stereotyped in racial, ideological and psychological terms (the angry black) without regard to what they actually say. The energy expended in deciding whether and when to speak makes some students feel so alienated from the classroom environment that they agonize over coming to class. The dissent dismisses the link between this anxiety and the critical mass argument as conceptually flawed: “If members of the underrepresented group become psychologically stronger, and thus more able or willing to speak as individuals, the Law School needs less and less of them.” (Emphasis added.) And yet the decision not to speak in class is also a decision made by many women. The fact that many other women do participate in class certainly does not mean “the law school needs less and less of them.” Indeed, it may be that the perspective of both the women and the students of color who remain silent is a perspective that the school needs more of, not less. This is so not just because their perspective is too often missing. This is so because their silence can be a critique of a pedagogy that is disabling to many students, including white men, to the extent that it chips away at self-confidence and thus discourages the intellectual risk-taking so necessary for learning. In this way, the experience of underrepresented students of color in the classroom is not an exaggerated display of victimhood but a window on patterns of teacher-student, as well as student-student, interaction that could be modified to benefit all students. The dissenting judges, then, are right that if race is simply a set of physical characteristics, those of us who are well intentioned can ignore them. But in the context of admissions to a public institution of higher education, race is more than skin color. Indeed, race is a better predictor of experiences that the law school claims to value, postgraduation, than even the LSAT. More to the point, an acknowledgment of race is needed to compensate for the racial and class preferences that are embedded in the so-called objective law school admissions practices. Given the way race tracks power and privilege in this society, even so-called race-neutral criteria have discrete and disparate effects on how we admit students, educate students, or predict who will succeed on the terms the law school itself values. On the positive side, race matters in law school admissions because racial diversity is deeply connected to successful intellectual and democratic outcomes in a multiracial society. The interactions and relationships between diversity and excellence are robust and complex. Problems that converge around people of color (and women) may give us insight into problems that would otherwise remain invisible. Race helps us see that it is the use of the LSAT that is primarily responsible for the shape of the law school class, representing a set of choices that adversely affects working-class and poor whites. It is not affirmative action that displaces people like Barbara Grutter. It is the conventional admissions criteria themselves. The arbitrariness of these criteria is systemic and structural, and too often disregarded. It is not what any of us see in a family portrait on a Christmas card, however lovely the family or ambiguous its ancestry. Lani Guinier is the Bennett Boskey Professor of Law at Harvard Law School. She is co-author with Gerald Torres of “The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy” (Harvard Press, 2002).

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