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Excerpted From: William C. Kidder, The Struggle for Access from Sweatt to Grutter: a History of African American, Latino, and American Indian Law School Admissions, 1950-2000, 19 Harvard BlackLetter Law Journal 1 (Spring, 2003) (190 Footnotes) (Full Document)
In Grutter v. Bollinger, a challenge to race-conscious affirmative action at the University of Michigan Law School, the Sixth Circuit recently ruled that achieving diversity to enhance education is a compelling governmental interest and that the Michigan Law School's program is narrowly tailored to meet that goal. With the Supreme Court granting review of Grutter to consider the constitutionality of the Michigan Law School's affirmative action policies, it is a particularly opportune time to look back at law school admissions over the last half-century. Because the Court treats Title VI of the Civil Rights Act of 1964 as coextensive with the Equal Protection Clause of the Fourteenth Amendment, and since every law school accredited by the American Bar Association (ABA) is a recipient of federal funding, the Court's ruling in Grutter will have profound implications on the ability of private and public law schools and other institutions of higher learning to maintain diverse student bodies.
In this Article, using a wide array of published and unpublished data, I attempt to document and analyze law school admissions opportunities for African American, Latino, and American Indian students over the past fifty years. In particular, I review the meager representation of students of color in law schools in the pre-affirmative action era. I also analyze the early development of affirmative action in the late 1960s, particularly at so-called “elite” law schools, and I consider the increase in competitiveness of law school admissions during this same period—a phenomenon that led schools to place increasingly greater reliance on the Law School Admission Test (LSAT). In chronicling the national enrollment and admissions decision patterns since the 1970s, the Article also focuses partly on the impact of the Supreme Court's ruling in Regents of the University of California v. Bakke.
The historical and contemporary law school admissions and enrollment data, I argue, will support four claims. First, before law schools adopted affirmative action programs in the late 1960s, law schools and the legal profession were overwhelmingly de facto segregated. Second, even with the tool of affirmative action, White students have consistently had higher admissions rates than students of color since the mid-1970s. Third, a comprehensive review of the consequences of ending affirmative action at public law schools in California, Texas, and Washington reveal that there is little evidence that race-neutral alternatives to affirmative action are viable in legal education. When affirmative action was prohibited at law schools that are similar to the University of Michigan, the number of underrepresented minorities sank to levels not seen since the late 1960s. Finally, recent national admissions data are consistent with the conclusion that student activism can have a positive influence on admissions rates. Conversely, affirmative action bans and threats of litigation are associated with a widening of the gap in admissions rates in recent years between Whites and students of color nationwide.
[. . .]
The findings presented in this Article support four central claims. First, before affirmative action began in the late 1960s, legal education and the legal profession were almost entirely de facto segregated. Second, affirmative action must be placed in its proper context, because even when these programs exist, nationally, White students consistently have higher admissions rates than students of color in the years since Bakke. Third, race-neutral alternatives to affirmative action in law schools are ineffective at producing significant levels of diversity. When public law schools in California, Texas, and Washington banned affirmative action the number of underrepresented minorities was lower than it had been in three decades. Fourth, recent national admissions data indicate that student activism has a tangible effect on admissions rates. Affirmative action bans and threats of litigation have had a chilling effect on admissions rates for students of color nationwide.
In summary, efforts to diversify legal education have met with mixed success. On one hand, as the figures in the Appendix indicate, total first-year enrollment levels for American Indian, Chicano, Latino, and African American students have risen significantly in the last two decades, even though overall enrollment levels have been nearly flat. On the other hand, admissions rates for students of color, both cumulatively and among those with equivalent UGPAs, continue to lag behind those of White applicants. In fact, it is discouraging to note that the Black-White acceptance ratio was lower overall between 1996 and 2001 than for any other period since Bakke. Much remains to be done before it can be said with a straight face that law school admissions operate on an equal playing field. It is also clear from the pre-affirmative action era as well as from data on recent affirmative action bans in California, Texas, and Washington, that if the Supreme Court prohibits institutions of higher learning from using race and ethnicity as a significant plus factor in admissions, law schools will experience substantial resegregation.
Law Clerk to the Honorable Edward M. Chen, Northern District of California. J.D., Boalt Hall School of Law, University of California, Berkeley.
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