Washington Lawyer

Affirmative Action in Law School Admissions

From Washington Lawyer, January/February 2000

By Tim Wells

Photography by Lolita L. Jones

Over the course of the past decade, affirmative action programs in higher education have come under increasingly sharp attack. The law schools at the University of Texas and the University of Michigan have been sued by white applicants denied admission claiming that they were victims of "reverse discrimination." (In Texas the federal district court ruled in favor of the white plaintiff, Cheryl Hopwood, and the law school can no longer take race into account in admission decisions; the Michigan case is set for trial next year.) In addition, the passage of a public referendum in California has banned the use of race as a factor in admission at California’s public universities. This recent round of litigation and legislation seems certain to bring the question of affirmative action before the Supreme Court in the reasonably near future.

Recently, The Washington Lawyer invited two prominent Bar members to debate the merits of using affirmative action policies in the law school admission process. Clint Bolick, vice president and director of litigation at the Institute for Justice, is a nationally recognized conservative and the author of Transformation: The Promise and Politics of Empowerment. John Payton, a partner at Wilmer, Cutler & Pickering, is currently representing the University of Michigan Law School in the lawsuit filed on the basis of a reverse discrimination claim, as well as another affirmative action case involving undergraduate admissions at the university.

The Washington Lawyer: Aside from Texas and California, where special circumstances prevail, how widespread is the use of affirmative action in law school admissions?

John Payton: A substantial number of law schools take race into account as one factor among many in making admissions decisions. In the case that I’m currently working on that involves the University of Michigan Law School, an amicus brief was filed by the American Association of Law Schools [AALS], in which the AALS acknowledged that law schools have used race as a factor in their admissions policies since Bakke. The law schools are doing so in conformity with Bakke, and they believe with the approval and authorization of the Supreme Court.

affirmativeaction2Clint Bolick: There’s no question that race remains a factor in law school admissions all over the country. But I think it is important to note that even in places like California and Texas, where race has been removed from the equation, something known as "affirmative action" will continue to take place. It all depends on how you define affirmative action. If it is defined as a racial preference, which is how most people understand the term, then obviously that has been prohibited in Texas and California, and it is under challenge elsewhere. But it is also possible to engage in affirmative action that does not include race. For example, an applicant’s socioeconomic background might be taken into account, or a preference might be given to a student who is the first person in his or her family to graduate from college. People don’t necessarily think of these things as affirmative action because they don’t involve race. But in my opinion they are much more desirable and meaningful than race.

Payton: I guess you can say affirmative action is whatever you define it to be, but at most colleges and universities admissions officers take a whole range of things into account, including whether someone is a relative of an alumnus; whether they are from another state, another country; whether they have special talents; whether they have demonstrated leadership skills; and whether they have special circumstances in their socioeconomic backgrounds. All sorts of things are taken into account. If you want to label it all affirmative action, then the term has no meaning.

Bolick: What is the goal? The main effect of using racial preferences in law school admissions has simply been to reshuffle students from one school to another. A minority student that has the credentials to get into my alma mater, the University of California at Davis, might be accepted at Harvard or Yale under a race-based affirmative action program. The problem is that when affirmative action is practiced in that fashion, it does not have any impact in expanding the pool of qualified applicants, which is what the goal should be. The way affirmative action is practiced today is cosmetic and superficial. It does not offer a systemic cure for serious social problems. It simply reshuffles the deck.

TWL: If all we’re doing is reshuffling the deck, then why have minority enrollment rates dropped so dramatically at the University of Texas and the University of California law schools?

Bolick: What you have in the University of California system, in particular, is four very elite law schools. If minority admissions are declining at those schools, that is a signal that black students are not adequately prepared for admission to the elite law schools. That is the problem. You can’t solve it by adding points to a kid’s LSAT score. The way you solve the problem is by improving the K-12 educational experience and, if necessary, the college educational experience. Anything else is fraudulent.

Payton: Let me approach this another way. I think the following proposition is irrefutable: Having a diverse student body enhances the educational experience for all of the students at the law school. Most of the law schools in the United States have come to the conclusion that diversity is important to their educational mission. Most people today acknowledge that a diverse student body has positive educational benefits for all students. Would you agree with that proposition, Clint?

Bolick: That depends on how you define the term diversity. When I was admitted to Davis, I diversified the school. I was the only conservative in my class. I think everyone’s law school experience was changed by that. But I don’t think that a person’s skin color has a similar impact. You need to look at what an individual has to contribute to the law school community, not at skin color.

affirmativeaction1Payton: Let’s take race out of the equation, because race is very hard to address directly. If you have a student body that is geographically diverse, with students coming from the north and south, east and west, then the students in that class learn about each other in ways they couldn’t if they were all from the same state or the same region. If we take a pool of applicants, all of whom are qualified, and give some sort of preference to students from the south to ensure that we’ve got a geographically diverse student body, then the educational experience is better for all of the students that attend the law school. If we stop doing it, and we end up with significantly fewer students from the south, then the educational benefit to the students goes down. The reason the educational benefit diminishes is not because the applicants from the south are more or less prepared or more or less qualified; it is because we stopped seeking geographic diversity. The same analysis applies to racial and ethnic diversity-along with all sorts of other types of diversity.

My point is that the educational experience is better if you have a diverse classroom. All of the recent social science studies indicate that you have a better classroom experience when you have racial diversity, gender diversity, geographic diversity, socioeconomic diversity. And I take your point about ideological diversity. I think that makes for a more robust classroom.

Bolick: The question I would pose is, when does a law school bend its standards? If you have two students-one from the north and one from the south-who have identical LSAT scores and you admit the student from the south because you don’t have many southern students, I think that is an appropriate finger on the scale. But that’s not what we’re talking about when we talk about race. We’re talking about a substantial bending of the school’s standards.

Payton: Let’s define our starting point. If we are confident that all of the students we are considering offering admission to are qualified to perform at the school, and that is the group from which we are going to select our students, I take it that you don’t object to taking some of these other factors into account, including race. Is that the case?

Bolick: No. I would say that relative qualifications are absolutely imperative. You were describing a situation where most of the preferences that take place in law school are at a relatively low degree of differentiation regarding test scores and grades. But all of the data that I’ve seen on racial selectivity show that there is very dramatic preference that is being applied.

Secondly, race is a factor unlike all other factors. A person’s skin color doesn’t tell you anything about what that person can contribute to a law school environment. Race doesn’t tell you anything about that person’s qualifications and skills. That is why, as a matter of both constitutional law and civil rights law, it is off the table.

Payton: I don’t understand your point. Is it that it’s okay to take race into account, but just don’t take it too much into account? Or would you say that you can never take race into account?

Bolick: I would say that a public institution may never take race into account.

Payton: Even if doing so has acknowledged educational benefits for all of the students?

Bolick: If that were true-which I think is the latest sociological nonsense to come out of academia-race would nonetheless be off the table at public institutions.

Payton: Are you aware of any social science research that indicates to the contrary regarding the correlation between diversity and the educational benefits that accrue to the entire student body?

Bolick: I think these studies are a post hoc rationalization for racial preferences. The fact is that race does not determine a person’s intellect, ideology, background, experience. It seems to me that people are using these studies to undercut a core premise of both the civil rights movement and the Constitution, which is that we are all equal under the law. Individuals need to be treated as individuals. We can’t make stereotypical generalizations about people.

Payton: If people are separated and have no contact with one another, they are going to think in stereotypes. Today, in the United States, the races are separate. In every major urban area you have inner-city schools that are essentially all minority, and you have suburban schools that are all white. That means that for K-12 kids have no experience with children of other races. Isn’t the best way to deal with that educationally is to expose students to one another and let them see that the stereotypes are all wrong?

Bolick: You are speaking in terms that are overly broad. The United States has made tremendous strides in integration over the last few decades. Nonetheless, I take your point about the inner cities. Much of our work at the Institute for Justice is focused on people in the inner cities who are racially and economically isolated. But when we’re talking about affirmative action in law school admissions, that is not the group of people that gets targeted at all. In my view, it is the group of people that affirmative action ought to be directed toward-people who have in fact been isolated.

Payton: I would postulate that the white students in law school today come overwhelmingly from white backgrounds completely separate from contact with minorities. Do you disagree?

Bolick: Yes, I disagree, especially considering that law students have college degrees. I don’t know of very many racially isolated colleges in the United States.

Payton: Set college aside. Would you agree that white students in law school come from K-12 backgrounds that are racially separate?

Bolick: Most white individuals have interactions across racial lines. There may be differences as to when that contact occurs, but I don’t think you can generalize and say that white students at law school have not had interracial contact in the past.

Payton: Would it influence you if that in fact turned out to be the case?

Bolick: No, it would not influence me. I think we ought to be talking about the kids you mentioned who are living in the inner cities with low-income backgrounds. We ought to bring those kids into the process. The way affirmative action is practiced at law schools today doesn’t do that. We should be talking about an affirmative action that begins at the K-12 level.

Payton: Certainly, education ought to be improved for inner-city kids. I agree with that. But it evades the point I was making earlier about the educational value of having a diverse student body. On that point, the social science is just overwhelming. You dismiss it as "post hoc," but it is exactly what Justice Powell said in Bakke. Justice Powell said that you need to have a diverse student body because students learn from other students. Sweatt v. Painter, the case that struck down the separate law school system in Texas more than 50 years ago, made the exact same point. So this isn’t post hoc. If you asked any group of students, would we be better off with a diverse classroom or with the classrooms we had 50 years ago?-which, in law school, meant primarily all white males-nobody would say let’s go back to all white males. My point is that students learn from each other. You learn a lot from your fellow students.

Bolick: Assuming that a person does bring some sort of defined perspective because of his or her race, how far are you willing to go with that? How big of a preference is permissible? Is there any limit that you would apply?

Payton: Sure, there are limits. My answer is a little fuzzy because it depends on judgments about the educational benefits derived from a diverse classroom. How many students do you need to obtain that benefit? The answer is, enough to get the diversity. Can you overuse diversity in the selection process? Sure. But I think that it is irrefutable that there are educational benefits from having a diverse student body. You don’t get those benefits if you don’t have the diversity.

Bolick: The rationale supporting racial preferences is that people bring something unique to the table by virtue of their race. I don’t believe that. It seems to me that if you have a white student and a black student, both of whom were educated in an elite private school, both of whom come from a wealthy, sheltered family, the fact that one is white and one is black is not going to bring any diversity. But if you’re talking about an impoverished white student from rural Appalachia, then you are talking about diversity. Instead of applying a racial presumption to the process, we ought to look at people as individuals. Race does correlate with income, so if you had affirmative action based upon income distribution, you would wind up with some racial diversity, and it would be a much more meaningful form of affirmative action.

Payton: You can’t take two kids-one black and one white-with parents who have the same occupation and live in the same neighborhood, and say that they are interchangeable. That’s not how race works in our society. Race will affect them in different ways. That’s the jarring reality of our society. There is something different about the experiences of a black student, a Hispanic student, an Asian student, or a white student. Their experiences reflect their racial identity, their socioeconomic background, who their parents are, where they went to school, and so on. You’re right, we are all individuals. But it is also true that there are things about us as individuals that define the ways in which we think of ourselves. There are things that define an individual’s identity and self-perception. Do white students, black students, Asian students, and Hispanic students contribute to a diverse student body? The answer is yes.

Bolick: If you’re aiming for a diverse student body, it seems to me that you need to look at people on the basis of their individual characteristics. You need to evaluate the unique attributes that they bring to the table. If your goal is racial proportionality-and frankly I think the diversity argument is the latest justification for doing that-then you need racial preferences.

Payton: Well, you’re wrong about racial proportionality. That is not why law schools use affirmative action. Instead of talking about race, let’s talk about gender. Does the fact that you have a substantial number of women in a law school class have an impact on the educational benefit received by all of the students at that law school. Is gender diversity beneficial?

Bolick: I’m not saying that law schools should be bastions for white males. I think it’s important to acknowledge that if you remove racial preferences, you are still going to have law schools that have a great deal of variety among the students, including racial variety. So I’m not sure where you’re going with this argument.

Payton: I’ll tell you where I’m going. There isn’t a law school in the country that says, "Okay, to compose our incoming class we’re going to use grades and test scores as our only criteria. That’s how we’ll select our class." The reason law schools don’t do that is because it would be bad for the class. Instead, they try to make sure that they have all sorts of diversity-geographic, socioeconomic, gender, various racial and ethnic groups, special talents, different disciplines of study. They put all of those factors together, along with grades and test scores, to select a class that is vibrant and diverse-a class where the students bring a wide range of experiences and talents and outlooks. My point is that all of those factors are legitimate. Using all of those factors helps to create a better educational environment at the law school.

Bolick: At a private institution I see broad latitude for decision making in this realm. But every time a private school administrator makes a decision that is based on race, that administrator is doing violence to the philosophy behind the Civil Rights Act of 1964, because the administrator is engaging in racial discrimination. What we have now is a situation where affirmative action has become a preference program that favors primarily well-to-do individuals. As such it is harming another group of individuals who have worked very hard to get to the law school admission process, and who, on the basis of the presumption of diversity, are denied what they have striven to achieve.

Payton: I think you’re misusing the term harm. Does it harm people to take geographic or gender diversity into account? No educator would think it’s a good idea to simply take two numbers and mechanically apply them to select a law school class. Therefore, they take other factors into account. As long as they are picking students who are well qualified, the word harm doesn’t apply.

TWL: What is the state of the evidence? Is there a significant test score gap?

Payton: There are different levels of test scores for every one of the groups that we have mentioned. On average, do black and Hispanic students have lower LSAT scores than white students? The answer is yes. Do white students have lower LSAT scores than Asian students? The answer is yes. There’s a range of average test scores. But all of the accredited law schools that we are talking about pick students that fall within their qualified range. It’s not like they’re picking minority students who are unqualified. That’s not accurate at all. There are white students across the entire spectrum, and there are black students across the entire spectrum.

Bolick: There is no question that there is a significant LSAT gap between black and white students. We wouldn’t be sitting here having this conversation if that were not the case. We’re here because discriminatory practices are being used to leapfrog less-qualified students over more-qualified students.

TWL: I sense a bit of moral indignation in Clint’s voice when he talks about people working hard and not being able to achieve their goals because a space is reserved for a certain category of person. Is the danger of reverse discrimination real?

Payton: If Bakke says one thing loud and clear, it’s that you can’t reserve spaces, so no one does that. Bakke says that you can take race into account in a competitive way, but you can’t have a separate admissions system. I think one of the problems we have as a society today is that we too easily find reasons to blame someone or something else for the things that have happened. Sometimes that’s legitimate, and sometimes it’s simply a way to explain what did or did not happen. But at some point, we need to come to rest with how admissions decisions are made. Affirmative action is not mandatory. Bakke says that law schools can use these factors if they believe it is a legitimate way of picking their student body. The reason law schools do so is they believe it is in the best interest of the institution, and in the best interest of the students that attend that institution.

Bolick: I think the moral indignation you heard in my voice was the same moral indignation that animated the civil rights movement. Any person who is passed over on the basis of race is properly indignant.

TWL: Your references to the civil rights movement lead me to believe that you are willing to concede that past discrimination was real.

Bolick: Certainly, there’s no question about that.

TWL: Is some sort of remedy necessary to address that? We’re talking about fairly recent history?

Bolick: I suppose you could call it recent. It’s been 45 years since Brown and 35 years since the passage of the 1964 Civil Rights Act. If you look at the number of black people who are alive today who were alive in that era, it is substantially less than one-half for 1964, and less than one-third for 1954. Things do change dramatically. Today we do have a large and growing black middle class and a large and growing black upper class. If you look at the people who are beneficiaries of racial preferences in law school admissions, you are looking primarily at people who are well-off. That’s the great mismatch that is occurring. Do I think the antidiscrimination laws must remain vibrant and vigorously enforced? Yes. Do I think there is discrimination against blacks and Hispanics in the law school admission process? No.

Payton: In listening to you talk about how long it’s been since Brown and the passage of the Civil Rights Act, it sounds as if you believe that once the Supreme Court issued its decision in Brown the schools were integrated. But very few were. When efforts were made to impose the remedy that Brown promised, we got white flight, we got the closing of all public schools in some districts, we got all black schools in the inner cities, and white suburbs with superior schools ringing those cities. If you go to any inner city, you see black schools that 30 or 40 years ago were overwhelmingly white. So what happened after Brown was not the remedy that Brown promised. The same holds true for the 1964 Civil Rights Act. People didn’t suddenly stop discriminating after the passage of the act. It took decades of litigation and amendments of the law to get the powerful antidiscrimination laws that we have in place today. To suggest that anyone born after Brown or after the passage of the Civil Rights Act didn’t experience the discrimination of an earlier era is just plain wrong. That earlier world still reverberates today. Previously, I said that most of the students in law school today come from a K-12 background that is all white, and I believe that is absolutely the case. It is as much the case today as it was in 1954. That is sad, but it’s what the demographics have done. Therefore that leads to real issues that we have to deal with educationally. Having a diverse student body helps allay that problem. The problem of race in our society is very persistent, and the right way to address that problem is to have interaction among people.

Bolick: Do you disagree with the Supreme Court’s application of the strict scrutiny standard regarding race? If so, I’m astounded. The civil rights movement fought very hard to create the strict scrutiny application.

Payton: Strict scrutiny does govern the use of race. That’s what Justice Powell said in Bakke, that diversity is an interest that survives strict scrutiny. I don’t take issue with that at all. There is clearly a compelling governmental interest in the educational value that is derived from diversity. Bakke is four-square on that point. I’m going to read from Bakke. This is what the Supreme Court said in striking down the injunction against the use of race at the University of California at Davis: "The state has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin." That’s it. That’s what Powell said.

Bolick: Fortunately, we’ve come a long way from what was a very murky decision in Bakke, and a majority of the Supreme Court has embraced strict scrutiny for all racial classifications under all circumstances. I can’t help but point out the irony in the resistance to the 1954 Brown decision and the resistance we’re seeing today to decisions like Hopwood. There’s a tremendous effort to eviscerate those decisions, which is unfortunate, because Brown and Hopwood rest on exactly the same constitutional foundation.

Payton: Hold on, we’re talking about Bakke. I’m hearing resistance to Bakke from you. Brown says that education is the principal mission of the government in our democracy, and Brown is about why education is so vitally important. Bakke says that having a racially diverse student body is important. Bakke is the controlling decision. I’m not resisting Bakke. I’m embracing Bakke.

Bolick: I’m embracing Bakke, too. It seems to me that no one can prove that racial discrimination is the least restrictive way of achieving a beneficial goal, including the goal of a diverse student body. Taking individual characteristics and talents into account is a much better way to achieve that goal than a reliance on the wholesale substitution of race. When we talk about the LSAT gap, something very important is going on. That is, the LSAT gap mirrors a deep gap in education. The average black student who graduates from high school today is four academic years behind the average white student. This is a serious problem, and it is getting worse. One of the things that we are seeing in California is that only after race is removed from the policy arsenal do we begin to address these underlying problems. If we rely on racial preferences, and we see lots of black students and lots of Hispanic students enrolled at law school, then we think, "Oh, the problem has been solved." But the underlying problem of educational inequality has not been solved. So long as we have a regime of racial preferences that problem is not going to be addressed head-on. You’ve referred a couple of times to the separation of the races, and while I disagree with your contention that most white Americans do not have racially integrated experiences, I do agree that there is isolation in the inner city. That’s where our education programs ought to be directed.

Payton: This is an empirical question. I’m saying that in K-12 we are in fact isolated and separated across racial lines. You can just look at the demographics and see that it is so. There is research available on this. There is also research that shows that students who experience diversity in college and professional schools are more likely to have friends across racial lines, they are more likely to experience diversity in the workplace, and they are more likely to live in neighborhoods that are diverse. That is a tremendous social benefit. But to say that today in K-12 we are integrated is a denial of reality. It’s just not true.

Bolick: Earlier you said that we are no more integrated today than we were in 1954. That is an astounding statement. We are much more integrated today than we were in 1954.

Payton: I’m not talking about, can people go to the movies? Can people go shopping in the same stores? Can we go to restaurants? Yes, we can do all of those things. I’m not talking about forced segregation by oppression. But we are segregated racially in K-12 just as much as we were in 1954. Just look at where people live. If you look at the inner-city school districts in Detroit, they are just about all black, while suburban school districts ringing the city are all white. As a consequence, approximately 90 percent of the students from the Detroit area that enroll at the University of Michigan come from racially segregated K-12 backgrounds. The same is true for other major metropolitan areas. The data is there. The demographics are real. Those demographics have consequences.

Bolick: Well, I disagree. I think schools K-12 are much more integrated than they were in 1954, the major exception being inner-city schools. So it seems to me the question is, where do you fight these problems? Do you fight them at their true source? Or do you fight them at the level of law school admissions?

Payton: Why choose? Why not obtain the benefits that come from having a diverse student body in higher education while simultaneously going full speed ahead to address the educational inequalities that exist in K-12? Why not do both?

Bolick: Why have antidiscrimination laws at all? We have made the decision in our society that we will not take a person’s skin color into account in the distribution of public benefits. I think that is the right decision. If we’re going to subvert that principle, then we ought to have very powerful reasons for doing so. Racial preferences violate that principle. And I think there are better ways to achieve the goal of diversity than through a reliance on preferences. I predict that in California, where racial preferences have been done away with as a matter of law, you will soon see a higher per capita percentage of minority students graduating from college and law school than in those states that have not abolished preferences. The reason I feel confident in making the prediction is because in California the state is going to be forced to focus on the underlying problem. As long as you have a cosmetic system of discrimination in place, you’re not going to get at the root of the problem.

Payton: We’re talking about two separate issues. On the one hand, I’m talking about an educational benefit that is derived from a diverse student body. On the other hand, is the problem of poor schools in the inner cities. On the second point, I completely agree with you. That is a serious problem and we ought to do something about it. It’s going to take a lot of resources, it’s going to take a lot of determination, and it’s going to take tremendous staying power. It’s not a problem that is going to be solved in one year, or five years, or 10 years. But we ought to do it. My bigger point is that we ought to do both of these things. We shouldn’t toss out all of the benefits that are derived from a diverse student body in order to turn our attention to some other problem. We can do both, and we should do both. You have suggested that what’s going on in law school admissions constitutes discrimination that is contrary to the law of the land. But that’s only what you want the outcome to be. Bakke clearly says the opposite. And right now Bakke is the law of the land. Law schools that use affirmative action are in compliance with Bakke. You may not agree with Bakke, and it may not be the ideal world you’d like to live in, but it is the law.

TWL: That raises an important question. Given the Hopwood decision in Texas and Proposition 209 in California, how much longer will Bakke be the law of the land? Where are we headed?

Bolick: The trend is unmistakable. I can’t remember the last time the courts have upheld a racial preference in any area, whether it is contracting, employment, busing, or as we’ve seen in Hopwood, law school admissions. Maybe John will fare better in the Michigan case, but I doubt it. When you couple court decisions with initiatives like Proposition 209 in California, I think it’s apparent that people understand that we’re not solving problems through the use of racial preferences. We’re only dividing society even more. I don’t think racial preferences will withstand the test of future Supreme Court decisions.

Payton: We’re going to know the answer to that in the next couple of years. One of the striking things about Bakke is that we haven’t had another decision by the Supreme Court since 1978 that has dealt with this issue in higher education. That’s a very long time. A lot of people have argued that Bakke has been used to achieve racial balancing for its own sake. If that’s the debate, then Bakke won’t hold up. But I don’t think that’s what Bakke says. Bakke is about the educational benefit an institution of higher learning gets from a diverse student body. When the issue comes back before the Supreme Court, we will have social science research that will show conclusively that there are substantial and important educational benefits derived from having a diverse student body. I think the Supreme Court will be inclined to acknowledge those benefits and to affirm Bakke.

Tim Wells is managing editor of The Washington Lawyer.