Affirmative Action

Fifth Circuit Upholds Affirmative Action, But Is It Begging for SCOTUS Intervention?

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Two people from my high school got into the same college I did. We were all in the top 10 of our class, but none of us were in the top 5. One was a white guy who was a brilliant piano player. The other was a white girl who excelled at sports. Then there was me. I had the “does lots of activities” application. You know the type of d-bag kid I’m talking about: debate this, mock trial that, sports, school plays, bands.

Also, I’m black. Do you think that might have had something to do with it? I hope it did, since it seems to me that my race is at least as much of a factor in what I may add to an incoming college class as whether I could play the piano or dominate in field hockey.

Of course, saying race can be a factor in college admissions is controversial. A certain segment of the population gets all bent out of sorts when a “deserving” white student potentially gets “passed over” because a college official gave a person of color “extra points” when making up the entering class of students.

I find these arguments totally irrational. If the top five students from my high school were passed over — three Jews and two Asians (you know, the real victims of affirmative action, if there are any) — then who exactly “took” their spots? Me, or the sports chick? And if an Asian guy “takes” my spot, but I bump down the piano player who didn’t score as well as I did, and the piano player takes the spot of some poor Hispanic kid who has never seen a piano in real life, would everybody say that we all got what we deserved?

Coming up with an effective way to balance all of the relevant factors in college admissions is hard. But when race is involved, people don’t want to deal with “hard,” and they don’t want to hear “complicated.” They want simple rules and a few platitudes they can recite on television. After yesterday’s Fifth Circuit decision upholding affirmative action at the University of Texas, the only question is whether the Supreme Court has the will and intellectual rigor to think through something hard, or whether the majority will want to fall back on truisms and clichés…

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Are Legacy Admissions Unconstitutional?

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Here’s seemingly every affirmative action conversation I’ve had since I started working at Above the Law:

PLEBES: Affirmative action is racist — reverse-racist. It lets an under-qualified minority get into a school I deserved to get into, just because of their skin color! And why? Because 100 years ago things were tough for blacks? Not fair! [Some quote from Justice Roberts I'll care about the minute I care about what an aging white man thinks about racial harmony in America.]
ELIE: Actually, affirmative action can be justified by simply pointing out that diversity of thought and experience is essential when it comes to educating people.
PLEBES: It should be about merit! [Quotes standardized test statistics as if the LSAT is both objective and a standard of merit.] If you get a higher score on a test, you should get in over someone who gets a lower score. That’s merit!
ELIE: But we know that universities look at all sorts of things when considering applicants. They look at whether you have any other talents like sports or music. They look at legacy status…
PLEBES: [Foaming at the mouth now] Legacies are an ENTIRELY DIFFERENT THING. We’re talking about discrimination based on RACE. That’s ILLEGAL!

But maybe people shouldn’t be so quick to dismiss concerns about legacy admissions. According to Richard D. Kahlenberg, editor of a new book called Affirmative Action for the Rich: Legacy Preferences in College Admissions, legacy admissions are bad policy — and potentially unconstitutional…

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Racial Quotas? So Ordered! (Or, Judge of the Day: Harold Baer)

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We’ve come a long way from the days when federal courts issued orders banning racial discrimination. Now federal judges hand down orders mandating, or at least encouraging, race-based discrimination.

As reported in the American Lawyer, earlier this week Judge Harold Baer (S.D.N.Y.) issued an unusual order. On Monday, Judge Baer directed two firms serving as lead counsel in a securities class action to “make every effort” to staff the case with at least one minority and one woman:

ORDERED that Co-Lead Counsel, Robbins Geller Rudman & Dowd LLP and Labaton Sucharow LLP, shall make every effort to assign to this matter at least one minority lawyer and one woman lawyer with requisite experience….

If federal judges can run school districts and prison systems, law firms should be a piece of cake, right?

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Covington and Its ‘Staff Attorney Ghetto’?

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Covington Burling LLP logo Abovethelaw Above the Law blog.JPGSorry we’re late to the party on this HuffPo post, bearing the provocative title “Law Firm Segregation Reminiscent of Jim Crow.” It’s by Yolanda Young, a former staff attorney at Covington & Burling. Her claim, in a nutshell, is that Covington fills the ranks of its “staff attorney ghetto” with African-Americans, while the ranks of its partnership and partnership-track associate pool are overwhelmingly white.

Young’s post has already been discussed at Legal Blog Watch and the WSJ Law Blog. But considering how we love to fan flames of racial tension follow the issue of diversity in the legal profession so closely here at ATL, of course we’re going to cover it.

Here’s an excerpt (emphases added)….

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