The last time the U.S. Supreme Court took up affirmative action, a law school’s admission policies were in the line of fire. The justices in 2003 voted, 5-4, to uphold the University of Michigan Law School’s consideration of race in admissions, provided the school did not resort to actual quotas and that race was part of a “holistic review” of applicants.
The court will grapple with a similar question on October 10 when it hears oral arguments in Fisher v. University of Texas. Fisher doesn’t center on a law school, but the law school community has rallied around the university, filing amicus briefs defending affirmative action in higher education.
The briefs argue that banning consideration of race in admissions would hamstring efforts to boost diversity in law schools, the legal profession and society at large.
“If universities throughout the country are forced to abandon race-conscious admission programs, the number of racially diverse undergraduate students will decrease dramatically,” reads an amicus brief filed by the Society of American Law Professors. “In turn, the pool of graduates entering the legal profession, government service, and positions of leadership in the private sector will not reflect the diverse talents, resources and capabilities of this nation.”
The Association of American Law Schools, the Law School Admission Council, the American Bar Association, New York University School of Law’s Brennan Center for Law and Justice, Howard University School of Law’s civil rights clinic, the National Black Law Students Association, the Emory Latin American Law Students Association and OUTLaw also filed amicus briefs supporting the University of Texas. And several individual law professors and administrators, including Harvard Law School dean Martha Minow and Yale Law School dean Robert Post and six constitutional law professors, figure among the 73 amici filed in the case. Virtually all of the law school-related briefs backed the consideration of race in admissions decisions.
Post and Minow, who reiterated their position in an op-ed this week in the Washington Post, argue in their brief that diversity improves a school’s learning environment.
“Were this Court altogether to preclude considerations of race from the admissions process, each school would be disadvantaged in its efforts to select individuals who will produce the most effective classroom experience for training students to succeed in the opportunities and challenges that lawyers, whether practicing or not, must inevitably confront,” reads their brief, which was prepared by Sidley Austin’s Carter Phillips.
The Association of American Law Schools argues it its brief that any “mechanistic process” of admitting students, such as the class rank-based admissions plan U.T. uses with undergraduates, would not work in a law school environment. Law school class sizes are too small to automatically admit a certain percentage of top-ranking students, and law schools draw students from too large a number of undergraduate institutions the brief says.
“While an admissions plan that relies solely on students’ class rank may achieve a semblance of racial diversity at some large public undergraduate universities, this success could not be replicated for law schools,” the brief reads.
Many of the law school amici argue that race is only one aspect of a comprehensive review of each individual applicant at their institutions—and that this process allows them not only to admit capable students, but also to assemble diverse student bodies.
Diversity on campus helps to break down stereotypes, contributes to cross-cultural communication and boosts social growth for all students, according to the amicus brief submitted by the National Black Law Students Association.
“Furthermore, eliminating the consideration of race would drastically reduce the number of Black law students and lawyers, particularly at our nation’s most selective law schools,” the brief reads.
The Law School Admission Council wrote in its brief that minority students are far less likely both to score in the top range on the Law School Admission Test and earn high undergraduate grade-point averages. Of the nearly 7,789 law school applicants who had both an undergraduate grade-point average of 3.5 or above and an LSAT score of 165 or higher, just 63 were black and 263 were Hispanic or Puerto Rican.
“The simple, demonstrable statistical fact is that most selective law schools in this country will have almost no students of certain races unless they adopt admissions policies designed to alter that outcome,” the brief reads.
University of California at Los Angeles School of Law professor Richard Sander took a different position in his amicus brief. Sander has researched affirmative action in law schools and concluded that the practice hurts minority students because they might be less prepared academically. He recommended that the court require state schools to give race no greater weight than low socioeconomic status when extending preferences to students—and that they publicly disclose any such preferences and phase them out by 2028.
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