The U.S. Commission on Civil Rights is calling for legislation requiring law schools to disclose their use of racial preferences in their admissions processes.
In a 220-page report, the U.S. Commission on Civil Rights also is recommending that the American Bar Association abandon its standard for accreditation regarding racial diversity in law schools.
The commission’s report is a frustration to affirmative-action backers who assert that racial preference policies are needed to help achieve diversity in law schools. The report by the commission � made up of four Republicans, two Democrats and two independents � relies heavily on a 2004 study published in the Stanford Law Review by Richard Sander, a law professor at the University of California at Los Angeles School of Law.
Sander’s study, which focused on black and white law students, concluded that affirmative action has resulted in the admission of blacks to schools for which they were not academically qualified.
The ‘mismatch’ theory
The commission’s report, “Affirmative Action in American Law Schools,” calls for more research on Sander’s theory, which asserts that preferential admissions create a “mismatch” between black students and law schools and results in academic and economic disparities for blacks.
The report also urges state bar associations to provide any data they have to assist research efforts regarding the mismatch theory. The commission’s chairman, Gerald A. Reynolds, said that law schools have the responsibility of disclosing the risk of an academic mismatch to minority students.
“If you truly care about someone, you tell them the truth,” said Reynolds, who is black. He is assistant general counsel for Kansas City Power & Light Co.
Of the 141,031 students enrolled last year in law schools accredited by the American Bar Association, 21.7%, or 30,557, were minorities, according to the ABA. Among minorities, 9,529 were black, the ABA reported.
The ABA’s accreditation standard, adopted last year, requires law schools to demonstrate by concrete action that they are trying to achieve racial diversity.
The civil rights commission’s report “shatters the hopes and dreams of minority students who want to attend law school,” said Michael Yaki, a Democrat appointed by Congress to the commission in 2005. “The [U.S.] Commission on Civil Rights has turned its back on the next generation of minority lawyers,” he said.
Yaki, a partner in the San Francisco office of Jeffer Mangels Butler & Marmaro in Los Angeles, and Arlan Melendez, the other Democratic commissioner and chairman of the Reno-Sparks Indian Colony, issued a 27-page joint dissent to the report.
Sander said that he had hoped his 2004 study would have generated more “internal” reforms at law schools, but he added that he supported additional research about the effects of affirmative action in law schools. “Very little of what needs to be done has been done,” he said.
The commission’s report recommends the enactment of legislation to require all law schools receiving federal funding to disclose details on the extent to which they take race into account in making admissions decisions. As an interim measure, it calls on the ABA to require law schools to do so and to throw out its diversity standard adopted last year.
A statement released by Ruth McGregor, chair of the ABA Section of Legal Education and Admission to the Bar, said the ABA standard provides law schools with “great flexibility” in how they demonstrate a commitment to diversity.
“Nothing in the standards requires consideration of race in making admissions decisions,” the statement said.
University of Michigan Law School Dean Evan Caminker said that the mismatch issue is one that deserves more attention. “But there are thousands of unanswered questions out there, and we’re not doing a national call to Congress for those,” he said. He added that the privacy rights of law students could be violated if law schools are required to turn over information about them.
The University of Michigan Law School’s admissions process was at issue in the 2003 U.S. Supreme Court’s, Grutter v. Bollinger, 539 U.S. 306. The court, in a 5-4 decision, upheld the its affirmative action policy.
The commission’s report is a recommendation sent to the President and Congress.