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Affirmative Action under Siege

By Joseph M. Hanna – March 4, 2013

On October 10, 2012, the Supreme Court heard oral arguments on a case challenging race-conscious admissions policies to public universities—and educators fear that an affirmative action-adverse decision could change the composition of law student bodies nationwide.

The case, Fisher v. University of Texas, was brought by plaintiff Abigail Fisher—a white applicant denied admission to the university as an undergraduate in 2008. At issue are the university’s two separate admissions processes: The first automatically admits applicants who graduate in the top 10 percent of their Texas high school classes. The second considers race as one of six factors in evaluating individual applications.

The most recent Supreme Court ruling on affirmative action was a 2003 decision titled Grutter v. Bollinger, which held that colleges and universities were only allowed to use race in a “holistic review” of applicants so that a “critical mass” of underrepresented students could be realized. Strict quota systems (i.e., allocating a specific number of slots for students for each race) were disallowed. In essence, Fisher is looking for a decision that either: (a) declares that the University of Texas’ admission policy fails to comply with Bollinger; or (b) overrules Bollinger and bans affirmative action in higher education outright.

The legal education community has responded with a considerable show of support, filing a large proportion of the 73 amicus briefs submitted in favor of the school’s affirmative action program. In essence, these briefs argue that because minority applicants are less likely to get high LSAT scores and maintain high GPAs, it would be nearly impossible for law schools to admit diverse classes without some form of affirmative action. 

Currently, minorities comprise about 25 percent of the law student body nationwide. However, educators fear that an adverse ruling in Fisher could essentially undo all the progress that has been made on the legal diversity front. Jack Gardina (copresident of the Society of American Law Teachers) commented, “[E]ven without a so-called affirmative action ban, law schools aren’t doing great in terms of diversity. Schools are still struggling to fill a class that is representative of the people who live in this country, and that’s without a real roadblock from the Supreme Court. Would we move to 95 percent white if they were to ban it?”

One proponent of affirmative action, Uma Jayakumar, a University of San Francisco professor, argues that such policies are necessary because low minority representation facilitates the persistence of racist ideologies. At a National Center for Institutional Diversity symposium last fall, Jayakumar noted that Fisher was “a call to action . . . . We haven’t found anything more effective than affirmative action. We should continue to look at that, but we should also look at ourselves and how we perpetuate everyday racism.”

Affirmative action supporters also worry that an adverse decision might produce a national result similar to what has occurred in states that have already chosen to end the practice. One study of five highly ranked law schools in such states (which included California, Florida, and Washington) revealed that the number of black students enrolled in these schools dropped by two-thirds after affirmative action policies were banned. At the same time the number of Latino students enrolled at these schools also dropped significantly, decreasing by one-third. Other smaller studies demonstrate similarly deleterious results. When the use of affirmative action was abolished by the University of Michigan in 2006, minorities made up 24.2 percent of the entire student body. By the fall of 2011, that percentage had shrunk to 19.6 percent.

Unfortunately, there is little data available to examine the extent to which race is considered as a factor in law school admissions—mostly because the law schools asked for such information have consistently refused to supply it. Truthfully, maintaining some level of ambiguity in admissions policies makes sense from the school’s point of view—clearly outlined policies would be more susceptible to applicant attack under Bollinger. Commenting on his school’s affirmative action policy, Andy Cornblatt, dean of admissions at Georgetown University Law Center, noted, “Race is a factor in that the faculty believes in having a critical mass of minority students . . . To get there, you add race into the mix of things you consider. But we don’t do math in this office. I can’t point to a formula.” 

Still, not everyone is convinced that affirmative action is beneficial to minority students. Richard Sander, a professor at the University of California at Los Angeles School of Law, published research arguing that affirmative action is bad for minorities. In essence, Sander’s work suggests that affirmative action policies place minorities in positions where they struggle to succeed academically, which only hurts them in the long run. Further, he argues that the abolition of affirmative action wouldn’t decrease the number of minority students; instead, these students would most likely still enroll at lower-ranked schools. Sander has faced considerable heat for his research; Deborah Waire Post, a professor at New York’s Touro Law Center, compared Sander’s work with older “theories of racial inferiority [used] to justify the subordination of African Americans.”

Other alternatives to affirmative action have been tested, with varying degrees of success (and failure). One such approach (which is now used in several areas including California and Texas) has attempted to diversify student bodies by spreading admissions based on community instead of race. In other words, schools in these areas give preference to low-income applicants and applicants that go to low-performing schools. Practically, this has resulted in aggressive recruiting in poorer areas, and it enables top-performing students from all schools the opportunity to receive an admissions boost. 

Whatever the outcome, it is clear that the Fisher decision will change the composition of the American law school. Which way it changes—either through a continued national commitment to diversity, or not—has yet to be seen.

Keywords: litigation, minority trial lawyer, law schools, admission policies, ban, Fisher v. University of Texas, Supreme Court

Joseph M. Hanna is a partner at Goldberg Segalla LLP in Buffalo, New York, and a cochair of the Minority Trial Lawyer committee.

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