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On the one-year anniversary of oral arguments before the U.S. Supreme Court in the University of Michigan affirmative action cases, the California-based Equal Justice Society released a final draft of its legal guide for college and law school administrators in the creation and review of race-conscious admissions policies. “Preserving Diversity in Higher Education” is a 200-page manual written by associates and partners from the San Francisco offices of Bingham McCutchen; Morrison & Foerster; and Heller, Ehrman, White & McAuliffe. Each firm donated in excess of 100 hours in preparing and editing the document, which was examined by law campus officials last fall in preliminary form. The Equal Justice Society is a 4-year-old association of law students, professors and attorneys “dedicated to implementing a positive vision of equal justice through the development of progressive legal theory, public policy and practice,” according to its Web site ( www.equaljusticesociety.org), from which the manual may be downloaded. “Preserving Diversity in Higher Education” combines legal analysis with practical counsel in light of the high court’s decisions last July in Grutter v. Bollinger and Gratz v. Bollinger, which upheld racial diversity as a “compelling interest” for institutions of higher education. “We actually started thinking about the manual before the decisions came down,” said Bingham McCutchen partner Michael Begert. “We prepared ourselves for various outcomes, one possibility being more damaging than what was actually decided. “The decisions are very positive for affirmative action,” he added. “Our objective with the manual is to reassure [law campus] officials that it’s possible and constitutional to incorporate race-conscious elements in their admissions policies.” In general, according to the manual: � An admissions process should be flexible enough to allow the consideration of a number of different factors that would contribute to diversity, including race … . Rigid reliance on a mathematical formula will render an admissions policy legally vulnerable. � Diversity includes more than just racial diversity. A school should be able to give a “plus” to any factor that it thinks would contribute to diversity. � Although a school should consider many factors in order to create a diverse student body, any “plus” factor — including race — may be given a bigger “plus” compared to other factors, although no single factor should dominate an application. Anna L. Brown, diversity management attorney at Shearman & Sterling in New York, said the manual is a “helpful resource” that will ultimately support efforts of large firms in hiring young minority lawyers. “The ability of top law firms to recruit and subsequently promote to partnership diverse classes of associates is inextricably linked to the depth and breadth of diversity of students on law school campuses,” she said. Kristin Booth Glen agreed. As dean of City University of New York School of Law, rated among the top three most racially mixed law campuses in last week’s annual graduate school survey published in U.S. News and World Report magazine, “Nothing is closer to my heart than diversity,” she said. “One of the things that comes out of [the Supreme Court decisions] is the need to individualize, and that’s something we’ve always done,” said Glen. “Every application is read by two members of our admissions committee, and as a file reader myself I will tell you, we look beyond the numbers, we read the personal statements, we read the letters of recommendation. That was long before Grutter said it was OK.” If other law schools wanted more diverse student bodies, said Glen, “Yes, absolutely, they could do it. But they have to really go out into the world to recruit.” For example, Glen said CUNY Law recruiters routinely scout social service agencies where prospective law students may be social workers or paralegals. Some schools might actually invite litigation if the pace of their efforts to create a student diversity reflective of their communities did not now quicken. “I think many schools had been waiting and not taking the plunge,” said Robert Borton, a partner at Heller Ehrman who led his firm’s three-lawyer team in contributing to the Equal Justice manual. “But they need to do so very quickly.” MoFo partner Jennifer Lee Taylor said she and her counterparts were concerned that law schools would be “reticent” to expand existing commitments to racial diversity without a full understanding of Grutter and Gratz. “We wanted [law schools] to be confident in pursuing diversity,” she said. “We want schools to be as diverse as they can be so that law firms are also able to become more diverse.” Advances in law firm diversity, Borton acknowledged by citing surveys conducted by the American Bar Association, have been slower than those in other professions. “But diversity in the associate ranks has come a very long way,” he said. “That’s not yet true in the partner ranks, nor is it true in the [corporate] boardrooms.” But progress must begin and strengthen at the campus level, the attorneys said. “Of course, we’re interested in having a [legal] workforce that reflects the breadth of our community,” said Begert. “The only way we’re going to be able to do that is if there is diversity in the law schools. We can’t just fabricate our workforces out of thin air.”

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