More Profs Weigh In On Law School Diversity

Two more law profs have weighed in on David Bernstein's WSJ op-ed, Affirmative Blackmail, which argues that the proposed changes in the ABA's accreditation standards will force law schools to engage in racial preferences in admissions and hiring even if contrary to state laws such as those in California and Texas.

Christopher Bracey (Washington University), in The Latest Salvo from the Anti-Affirmative Action Crowd on blackprof.com:

My armchair assessment: Bernstein’s op-ed is really just a sour-grapes piece. His interpretation of the ABA Council’s actions is a bit of a distortion, although I do think that his reading of the Supreme Court’s decision in Grutter is essentially correct. At bottom, however, I think Berstein is just plain wrong when he suggests that the ABA is encouraging “lawlessness” by “demand[ing] explicit race preferences and implicit racial quotas.” Nothing could be further from the truth. Instead, the ABA is simply reminding schools that the use of race preferences is indeed constitutional, in limited circumstances, and schools should feel free to exercise that option as they see fit.

But there has been one important change worth noting. The new standard effectively establishes a baseline presumption that all schools will make diversity and equal opportunity part of their educational mission. That said, there remains enough wiggle room in the standard for a school to adopt a posture that places minimal emphasis on diversity and equal opportunity. Of course, should a school choose to do so, I take it that the school must now EXPLAIN why diversity and equal opportunity are not important to its educational mission. It seems to me that this is what is most upsetting to Bernstein – putting law schools that choose this latter course in the position of having to explain publicly why they elect to minimize diversity and equal opportunity in admissions and hiring. Granted, this is difficult (and costly) normative territory for any modern educational institution to stake out. But asking a law school to articulate and stand behind its normative commitments regarding race preferences – one way or the other – strikes me as a good thing to do.

Christine Hurt (Marquette), The ABA, Affirmative Blackmail, and Being on Admissions, on Concurring Opinions:

This is my second year on [the admissions committee at Marquette], and I have to admit that the shiny has worn off a bit for me. I wanted to be on the admissions committee because I wanted to find out why we had classes with low percentages of minority students. Surely there must be some subconscious, yet insidious discrimination creating this result. I was going to ferret out this bias and squash it like a bug. What I found was a problem that I couldn't fix. The problem is math. Prof. Bernstein and Thom Lambert point out that the ABA's new rules show that the ABA has a conscious disregard for the rule of law. I would add that the rules also show a conscious disregard for math. For schools like Marquette, in the middle of the rankings, with a small faculty, administration and budget, cold, hard numbers are our problem when it comes to increasing diversity. Putting aside debates as to whether affirmative action is good, bad, constitutional, unconstitutional or whatever, the most affirmative action-minded admissions committee has to make very difficult choices in an environment of scarcity. Scarcity of applicants; scarcity of dollars.

Marquette's problem is not that we don't admit minority candidates. The percentage of minority candidates in our "admit" pool is larger than the percentage of minority candidates in our "applicant" pool. In fact, the percentage of minority applicants who become admits is larger than the percentage of nonminority applicants who become admits. However, the yield on minority candidates in our "admit" pool is quite low. These candidates have a lot of other opportunities. We do what we can: phone calls, scholarships, letters, emails, dinners, etc. I soon found out that to say that we discriminate against minority candidates is to say that we discriminate against candidates with 170 LSATs. We don't end up with a lot because we don't start out with a lot. And, no matter how many 170 LSATs we admit, our yield on 170 LSATs is very low, similar to our yield on minority candidates. These people have other opportunities, and our recruiting activities don't change that much....

However, the ABA now says that we are required to do more than just work with what we have. We need to commit resources to increase the number of minority applicants in our applicant pool.... Bernard Ebbers was criticized, and eventually punished, for blithely telling subordinates to "hit the numbers" without regard to the consequences. The ABA is also blithely telling law schools to do something without regard to the realities of numbers. I understand that in some situations, schools may have money, time and resources that they don't want to commit to a laudable goal and will not until forced to do so. However, my impression is that many schools like Marquette will be caught in the middle because they actually do not have unlimited money, time and resources.

For prior TaxProf Blog coverage, see here, here, here, and here.