Although affirmative action is an issue for higher education in general, it receives particular attention at law schools nationwide – and I believe the debate shows eliminating the policy is not the answer.
In the 2003 Grutter v. Bollinger case, the Supreme Court upheld the University of Michigan’s admission process, which used race as one of the many factors to select law applicants. Yet in the same year, the Supreme Court ruled in Gratz v. Bollinger that the undergraduate admissions practice was unconstitutional because it violated the 14th Amendment, which guarantees equal protection under the law. This was so because the Supreme Court decided that the point system used (with 150 points needed to gain admissions, blacks, Hispanics and American Indians automatically received 20 points) was too mechanistic and analogous to a quota system.
In the same way, the discussion of affirmative action will also be shaped by academia. In 2004, Rick Sander, a University of California at Los Angeles professor, published “A Systemic Analysis of Affirmative Action in American Law Schools” in the Stanford Law Review. In this article, he argues that affirmative action policies have harmed black law candidates by misplacing them in schools for which they do not qualify.
“The admission preferences extended to blacks are very large and do not successfully identify students who will perform better than one would predict based on their academic indices,” Sander writes. He concludes that black students usually end up at schools where they struggle academically, and then go on to fail the bar exam several times.
If Sander is correct, then this seems to undercut the purpose of affirmative action, which was implemented to better serve blacks. Additionally, it would challenge the Supreme Court’s decision to uphold the University of Michigan’s admissions policy.
But is Sanders making assertions or assumptions? Surely some black students are placed in schools that they may not necessarily qualify for (in terms of numbers). However, does this show that blacks are performing poorly because they are underqualified? I do not think so.
However, even if Sander’s analysis is incomplete, his paper, along with the two court cases, raises essential questions regarding the affirmative action discussion.
First, should any under-represented ethnic group be granted preference when seeking college admissions? As with the Gratz decision, using race (or ethnic identity) as a factor seems incorrect, even when the intentions are to achieve a racially diverse cohort. This is so because the heart of the matter lies in educational resources, not skin color. Thus, if a student lacks educational resources, they should be given preference in admissions, regardless of race. Yet the fact that many underrepresented minority students tend to come from economically disadvantaged backgrounds makes it seem useless to remove race as a factor.
However, simply because there is a correlation between underrepresented minority students and class status does not justify that every minority is poor and in need of preferential treatment. Once this ambiguity is made clear, it should become easier to see why socio-economic status is much more significant than race or ethnicity.
Importantly, with the rise of law suits against affirmative action, many programs geared at helping underrepresented minority groups are being abolished (in a sense that they are being opened to all students). In fact, several programs at the College (i.e. Minority Mentoring) have been impacted by the current anti-affirmative action movement, and there could be more backlashes in the near future.
Thus, with the recent shift (to conservatism) in the Supreme Court and academia, using race as a factor for admissions might be removed completely. But will this necessarily be harmful?
Information from – “Does Affirmative Action Hurt Black Law Students?: A new study that challenges a ‘cherished’ admissions practice has critics lining up for a rebuttal,” by Katherine S. Mangan, The Chronicle of Higher Education, Nov. 12, 2004; “A Systemic Analysis of Affirmative Action on American Law Schools,” by Richard Sander, Stanford Law Review, 2004