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Excerpted From: Abiel Wong, “Boalt-ing” Opportunity?: Deconstructing Elite Norms in Law School Admissions, 6 Georgetown Journal on Poverty Law and Policy 199 (Summer, 1999) (Notes) (217 Footnotes) (Full Document)
Of the Fall 1997 entering class at U.C. Berkeley's Boalt Hall School of Law, not one student was African American or Native American. Fall 1997 marked the first year of the University of California's “SP-1” Resolution, which prohibits consideration of “race, religion, sex, color, ethnicity, or national origin” in admissions. The resulting “white-out” gravely suggests how law school admissions, despite purported “objectivity” and race-“neutrality,” screen minorities from the legal profession.
Current law school admissions discourse has focused on remedying past discrimination and on the virtues of “diversity.” While these are important issues, limiting the inquiry to remedy and diversity (both, by now, obvious issues) addresses only a portion of a larger problem. This paradigm has obstructed efforts to move beyond patchwork “fixes” that seek equitable short-term results (i.e., affirmative action), to more fundamental reform.
Because affirmative action to remedy past discrimination and achieve diversity is coming under increasing attack, it is crucial to expand the inquiry to examine how exclusionary, elite-preferencing norms taint existing law school admissions and disadvantage minority applicants. Indeed, Boalt Hall's 1997 “white-out” has proven to be only the tip of the iceberg. In November 1998, citizens of the State of Washington voted overwhelmingly to eliminate public-sector affirmative action, and lawsuits are currently pending against the law schools at University of Washington and University of Michigan, over the use of affirmative action in admissions. Both of these schools are widely regarded as among the best in their regions, if not the nation.
Today, opening doors to traditionally oppressed groups is not only essential for redistributing wealth and advancing social justice, but also a matter of “democratic imperative.” As “access to work and education is rapidly becoming a fundamental attribute of modern citizenship,” exclusion of historically oppressed groups from educational opportunity, regardless of intent, perpetuates America's legacy of minority disenfranchisement. Moreover, the exclusion of minorities from the legal profession threatens to exacerbate political underrepresentation of historically oppressed groups, as lawyers are leaders in our democratic process. These problems are not obviated by the fact that minorities, on average, perform sufficiently well under existing admissions criteria to be admitted to a law school. While “true educational opportunity depends upon much more than gaining entry,” the profession's hierarchical structure affords graduates of the most elite schools a substantial edge in attaining the profession's most eminent positions, while students from lesser known schools are left “competing fiercely for whatever [jobs] they c[an] get.”
This Note argues that the legal profession's system for admission and for allocating positions within its hierarchy is tainted by elite, exclusionary norms. While the profession does not intend to exclude “non-elites” who would “blue-collar” the profession, exclusionary inertia pervades professional selection.
Building on this approach, this Note argues that racism, while not necessarily a driving force underlying today's exclusionary admissions, remains an “unconscious” element that impedes rethinking of barriers-to-entry. Where minorities' interests are implicated, “unconscious racism” predisposes the profession to view disparate impact as a problem with minorities themselves, and not as a problem with admissions methodology.
The Note concludes by analyzing law school admissions in terms of the complementary constructs of elite-preferencing exclusion and unconscious racism. One of the most important indices of lawyers' prestige, law school rankings, turns on the Law School Admission Test scores of admitted students. As such, elite, exclusionary pressures have fueled “inflationary” admissions systems that are “more for purposes of public relations and enhancement of prestige than … a consequence of careful, rational analysis of the intellectual demands that [law schools' programs] genuinely require.” Distilled to its essence, this Note argues that only by addressing elite-preferencing selection and unconscious racism that pervade law school admissions can the disparate impact wielded upon minorities be eliminated or even mitigated.
In defining the scope of this Note, it is helpful to note what is not addressed. This Note does not address the merits of affirmative action, claims that standardized tests incorporate cultural bias, or arguments that prediction (of law school or professional performance) as a theory of selection should be abandoned. Further, it does not necessarily advance a “radical critique of merit,” although it draws on such concepts. Instead, this Note represents an effort to deconstruct the elite-preferencing exclusion underlying the profession's selection systems (and complementary unconscious racism), which obstructs rethinking of the whole. By recognizing the role that these illegitimate elements play in existing admissions, policy-makers can begin to explore alternative admission systems that would enable more inclusive selection, benefiting law schools, the profession generally, and the society the profession serves.
Part II of this Note outlines the common law of minority exclusion in legal education, and describes how the existing paradigm for assessing minority underrepresentation is inappropriately limiting.
Part III analyzes the legal profession's historical barriers to entry, and the status of minorities within this framework.
Part IV addresses unconscious racism as an impediment to rethinking law school admissions.
Finally, Part V addresses the development of the LSAT, and its employment in a professional selection system premised on perpetuating an existing hierarchy.
[. . .]
As the racial make-up of Boalt Hall's Fall 1997 class painfully suggests, the mere promulgation of “objective” and racially-“neutral” selection criteria cannot, standing alone, ensure equal opportunity in law school admissions. Elite lawyers' historical crusade for restricted entry continues today in vestigial form and runs pervasively through existing admissions systems. Under this regime, the “objective” LSAT has become a device for allocating applicants to their “proper” place within the legal hierarchy, in a manner correlating significantly with social origin. Within this system, elite interests have fueled an inflationary “arms-race,” which while wielding discriminatory impact on minorities, is nevertheless rationalized as “quality-control.” Unconscious racism, a complementary predisposition, blinds policy-makers to the inequities in this process.
This is not to argue that hierarchy within the legal profession is necessarily improper. Indeed, a central argument of this paper—that equal opportunity must be afforded minority students to attend top law schools—presumes the existence of a hierarchical system. Given the inequitable status quo, however, today's selection systems are perpetuating privilege at the expense of the historically disadvantaged, contrary to the American equal opportunity ideal. For lawyers' privileged status in American society to remain legitimate, the profession must rethink its traditional barriers to entry and employ admissions systems that allow all persons to compete on a level playing field.
J.D., Georgetown University Law Center, 1999; B.A., University of Pennsylvania, 1995.
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