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….