Affirmative Action, Law Schools, Minority Issues

Drafters Of Affirmative Action Proposal Could Avoid Criticism By Reading Their Own Proposal

Law is not an especially racially diverse profession. More than 93 percent of partners are white, and less than two percent are black, according to 2013 statistics from NALP. A little over four percent of associates are black. A single African American lawyer argued before the U.S. Supreme Court in the entire OT 2012. By contrast, African Americans account for approximately 13 percent of the U.S. population.

Perhaps you think these statistics reflect persistent, pervasive race bias, even hatred. Perhaps you worry, as I do, that many good potential lawyers are excluded from the profession by a combination of obstacles that disproportionately affect the black community. Or perhaps you think many African Americans are just too damned smart to board the sinking ship that you think is the American legal world’s “New Normal.”

For purposes of present discussion, let’s say that, ceteris paribus, increasing the number of black lawyers would be good. How should law school admissions policies promote this goal?

Last Friday, Elie wrote about a Daily Caller article revealing plans at the University of Arkansas at Little Rock’s Bowen School of Law. The plans involved faculty discussion of a new admissions program designed to recruit more black law students. Elie decried the article, lauded the proposed program, and suggested that it was not unconstitutional. Dan Greenberg, quoted in both the DC article and Elie’s, responded.

I agree with Elie that the DC article was lousy — poorly researched, misleadingly written, and blatantly inflammatory. I agree with Dan Greenberg, however, that UALR’s proposal almost certainly would not withstand the strict scrutiny analysis required of race-based admissions programs.

What is so wrong with admissions policies like this one? Even if we agree that encouraging and including more black law school applicants is a good thing, there are fairer, constitutionally permissible ways to achieve that goal without relying on ham-fisted race-based criteria. Ironically, we need look no further than the text of the LEAP proposal itself to see an example….

The original UALR proposal itself offers this description of the aims of the LEAP program:

“The Legal Education Advancement Program (LEAP) is an idea that Dean Michael Hunter Schwartz shared with the faculty and for which he created an ad hoc committee to develop a proposal for the Law School’s adoption. LEAP is modeled in part after a program created for undergraduate students – POSSE – that provided a method of entry and retention to undergraduate education for students of color and economically disadvantaged students.”

For readers unfamiliar with the program, Posse “identifies public high school students with extraordinary academic and leadership potential who may be overlooked by traditional college selection processes. Posse extends to these students the opportunity to pursue personal and academic excellence by placing them in supportive, multicultural teams — Posses — of 10 students. Posse partner colleges and universities award Posse Scholars four-year, full-tuition leadership scholarships.”

Note that the Posse program specifies that “the Posse Scholarship is neither a minority nor a need-based scholarship and is open to students of all backgrounds.”

So, the original LEAP proposal did not mirror the policy on race of the undergraduate program which apparently inspired LEAP.

The original LEAP proposal also did not mirror the policy on race of other law school conditional admissions or special prep programs. Numerous law schools offer programs where admission is contingent upon the successful completion of a pre-enrollment program. They, much like Posse, aim to identify applicants who traditional admissions procedures would pass over but who nevertheless show real potential for academic success. I’ll note that the law school where I work, the Thurgood Marshall School of Law at Texas Southern University, is on the list of schools with conditional admissions programs.

What distinguishes these less-controversial, constitutionally permissible programs from UALR’s proposed LEAP program? Consider the criteria that North Carolina Central University’s law school uses in selecting participants for its Performance Based Admission Program :

“The Admissions Committee considers the following factors when deciding who will be invited to participate in the program: (1) a history of below average standardized test scores followed by successful academic performance; (2) marginal academic performance but above average standardized test scores; (3) work experience; (3) a significant time lapse between the undergraduate degree and law school application; (4) completion of other advanced degrees; and (5) a socio-economically disadvantaged background.”

Given the historical disadvantages faced by the black community in America, given the ongoing inequity in public education in both urban and rural poor communities which disproportionately include African Americans, given the dearth of community and family resources handicapping many African American youngsters, a program with these criteria is likely to benefit many black applicants who might otherwise be overlooked by traditional admissions processes. Does that make the program unconstitutional? Of course not. Does that make the program objectionable? I think not. If someone thinks so, her objection is more likely based on elitism or a paternalistic sense that traditionally unqualified students are acting against their own interest by even trying to attend law school. The objection can’t reasonably be that a program that does not use race as a criterion, but may incidentally benefit more black applicants than white ones, is racially unjust or runs afoul of the Equal Protection Clause.

So, why would a school propose a program that uses race as a dominant criterion when other programs are extremely effective at including minority students and are constitutionally permissible?

According to Dan Greenberg, UALR’s faculty is now considering a revised version of the LEAP proposal that omits language about race. According to Greenberg, “The amended proposal eliminates all express mention of race; now it is limited only to ‘students historically underrepresented in law schools or [who] come from socially or economically disadvantaged backgrounds.”

The fact that UALR faculty continue to revise the LEAP proposal indicates that the program is a work in progress. This is a good thing. Drafts are drafts. However, the phrase “students historically underrepresented in law schools” in this context sounds an awful lot like a proxy for race. If UALR is not referring to race or ethnicity here, what are they referring to? I’m a woman with the Heisenberg Uncertainty Principle tattooed on her arm. There are not many of us historically represented in law schools. Would that alone be enough to make me a good LEAP candidate?

Just as laws and policies that discriminate against blacks but use code words and veiled language to do so are both unconstitutional and unfair, so benign race-based laws and policies that avoid using the word “race” can be unconstitutional and unfair. The Jim Crow era taught us more hard lessons than we can count. One of those lessons is that a law need not use the words “black” or “race” to directly, intentionally harm African Americans. You can’t make a racial preference constitutional simply by omitting the word “race.”

This demonstrates what is so troubling about affirmative action efforts: schools can achieve the worthwhile goal of inclusion without relying on race-based programs. When schools choose not to employ race-neutral strategies, they give the impression that either (a) the schools are too lazy to take a more nuanced approach to inclusion, or (b) the schools really are only interested in race — not inclusion of non-traditional, disadvantaged applicants generally — in a way that clearly violates the Equal Protection clause and many Americans’ sense of fairness.

UALR needs to keep working on its conditional admissions program. A good place to start is with the very program that it claims to take as its inspiration.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

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