The Court will soon rule (or perhaps it already has by the time you read this) on whether race will remain one factor of many in admission decisions at U.S. universities.
If that seems like déjà vu all over again, in the words of the immortal baseball great Yogi Berra, it is.
Since then the composition of the High Court has become more conservative.
The worry is that the Court’s ruling will obligate law schools and law firms to become a lot less diverse, to the detriment of all—not only underrepresented minorities.
“There’s an increasing consensus that diversity is a value in education, especially as we are training our students to enter professions such as law, where they will encounter many types of people, many viewpoints, many different races, cultures, genders, points of view,” said Stewart J. Schwab, the Allan R. Tessler Dean at the Law School.
“We care about diversity because of the dynamic way learning happens in law school, both in and out of the classroom,” said Richard D. Geiger, associate dean of communications and enrollment at the Law School. “Faculty say the depth of discussion is enhanced in a diverse classroom. Being exposed to a wide range of perspectives also will make our students better practitioners. I think it’s especially important for those who enter the judiciary or political arena or are involved in community leadership,” he said.
“Everyone teaching in a university has an interest in the outcome of this case,” said Professor Sheri Lynn Johnson. “I can’t imagine teaching constitutional law effectively in a classroom that wasn’t diverse.”
Perhaps even more important, “diversity is a critical component to increasing the intellectual capital of the bar,” said Richard Ross, J.D./M.B.A. ’99, a corporate partner with Perkins Coie and mergers and acquisitions expert in its New York office. “With diversity you gain diverse approaches, strategies, experiences, all things necessary to represent your clients better.”
“The best talent now seeks out places that are diverse, vibrant, and have policies to train and maximize people,” said Leslie Richards-Yellen ’84, a capital partner and chief of diversity and inclusion at Hinshaw & Culbertson in Chicago. “Employers need to make their organizations diverse to attract and retain the best people.”
“Even Chief Justice Roberts, who is generally thought of as conservative on these issues, has said that he accepts the principle that diversity is a very important interest worth pursuing,” Dorf said. “I’m not sure that some of the justices really believe that but they accept it as an official matter.”
Under its Top Ten Percent Plan, the University of Texas accepts students in the top 10 percent of each Texas high school’s graduating class, regardless of their race. About 81 percent of its entering students are admitted and enroll under that plan, depending on the year and the number of acceptances.
To remedy that and further increase diversity, the university also considers for admission a small group of applicants whose high school standing missed the 10 percent mark. Some of the factors for consideration among that group have included talents, leadership qualities, and family circumstances, as well as race.
The brief points out that typical law schools enroll much smaller classes than those at large public universities, so they cannot rely on percentages or other formulas to achieve a diverse class. Instead, “following the Court’s guidance in Grutter v. Bollinger, law schools evaluate each applicant’s record holistically, counting such academic factors as success in analytically demanding majors, intellectual curiosity and improvement over time, as well as such other factors as veteran status, work experience, and hardships overcome.”
Race is one of those (and other) factors.
The brief goes on to state: “It is critical that law schools continue to be able to consider race as a factor within their holistic admissions process because no race-neutral method exists for achieving racial diversity in law schools, while fulfilling law schools’ other important goals.”
“We engage in a holistic review process and if you remove race from that, you’re not really being holistic,” Geiger pointed out. He and others worry that if law schools were forced by the Court to adopt a race-neutral admissions system, they would be a lot less diverse than they are now.
And that would have a chilling effect on the teaching and practice of law, assert many law scholars and practitioners.
“There’s no good proxy for race,” said Professor Barbara J. Holden-Smith, vice dean at the Law School and a member of its admissions committee. Substituting social class as a measure won’t ensure racial diversity, she said. “African Americans are only 12 percent of the population. If colleges and law schools took only poor black students, there would be even fewer African Americans attending than there are today.”
It would also hurt top-tier law schools like Cornell’s disproportionally by further restricting its applicant pool, she said.
How will the Supreme Court ruling in Fisher affect the study and practice of law?
“The real risk in this case,” said Dorf, “is that the Court might say: You can’t even use a holistic plan of the sort that Grutter approved if you can substantially increase diversity using nonracial means like a percentage program. That would mean other places would have to start using a percentage plan even if they haven’t been using one already. I think it’s not likely as a matter of the Court’s style,” Dorf said, “but it’s certainly thinkable in terms of the logic of prior opinions.”
The term “affirmative action” refers to actions that achieve nondiscrimination. It was first used officially in the United States in 1965 by then President Lyndon B. Johnson in an executive order prohibiting discrimination in hiring, with the stated purpose “to correct the effects of past and present discrimination.”
Johnson had in mind minorities who had been historically discriminated against, such as African Americans. But in the Regents of the University of California v. Bakke case, which the Supreme Court ruled on in 1978, the plaintiff, Allan Bakke, was white. Bakke sued for admission to the University of California Davis Medical School using the equal protection clause of the 14th amendment (as did Abigail Fisher in the Fisher case), asserting that he would have been admitted if he were African American.
The Court in the Bakke case, which was nearly evenly divided, found that the school had a compelling interest in a diverse student body and as a result could consider race in its admissions program, but only as a “plus” factor. It could not employ a “quota system” by setting aside seats for applicants of a particular race and selecting minority students using standards not applied to all applicants, as it had been doing.
Nevertheless Bakke himself was successful; the Court ordered his admission to the University of California Davis Medical School.
The notion of a diverse student body as a compelling state interest was first introduced in the Bakke ruling by Justice Lewis Powell. “Powell said, ‘We’re a society of many minorities,’’’ noted Professor Aziz F. Rana, a constitutional law scholar. “He was skeptical of using affirmative action to remedy past discrimination and was wary of thinking of the Equal Protection Clause [of the 14th amendment] in terms of the historical experience of any one group. In his mind no group had been distinctively mistreated.”
Over time, other justices on the Court began to accept Powell’s argument, said Rana. “The consequence was less judicial emphasis on viewing affirmative action as a tool to counter the effects of longstanding societal discrimination against minorities,” he said.
“A problem with the switch to the language of diversity is that it has deemphasized the issue of historic legacies of racism,” Rana asserted. The result? “The focus on diversity, rather than on remedial justifications for race-conscious policies, has promoted a Court logic that often fails to recognize or address systematic forms of discrimination,” he said.
He sees some irony in that shift. “The framers of the 14th Amendment and its equal protection clause, writing against the backdrop of Reconstruction and the end of slavery, saw no problem with using race-conscious policies or focusing on remedial justifications to ensure that African Americans, especially newly freed slaves, would finally gain civil equality,” Rana remarked.
“It is still not a race-blind world,” commented Professor Johnson. “Discrimination is still a fact for people of color. In my mind, diversity is not the most compelling reason for affirmative action. Righting societal wrongs is more important.”
“Affirmative action is about more than diversity,” said Holden-Smith. “It’s an issue of fairness as well. Minorities who have traditionally been left out of the professions must enter them, both as role models and to help break the cycle of the underclass. It takes generations to catch up. It’s not going to happen all on its own. We have to affirmatively make it happen.”
To critics of affirmative action who assert that this gives minorities an unfair advantage over white applicants with more merit, she responded: “That argument assumes, first, that someone deserves a place in a particular school—but nobody is owed that. Second, what does merit mean? Your grade point average or exam scores mean only that you have an opportunity to apply to a particular school because you are qualified to do the work there, not guaranteed a place there.”
Shiffrin observed: “In Bakke and Grutter there was an idea that you don’t just admit one member of a minority group because, in a polarized society, that person is going to be isolated. You need to have a ‘critical mass.’” At the oral argument in Fisher, the Court’s more conservative justices tried to pin down how the University of Texas defined critical mass, he noted. “It wasn’t easy to answer. The more you define it, the more it sounds like you have quotas,” Shiffrin said. “I think that the critical mass notion will play a significant part in whatever opinion the Court hands down.”
Justice Anthony Kennedy, for whom Dorf clerked, will likely have the deciding vote, both Dorf and his Law School colleagues agree. Much of the outcome will depend on whether Kennedy’s opinion is written narrowly or broadly, and in which direction, Dorf added.
“One potential danger for law schools,” Dorf said, “is the Court might require them to change their admissions procedures in ways that are inconsistent with the policies of the AALS and its member schools. It may say schools and colleges can’t even use a holistic plan of the sort that Grutter approved if they can substantially improve diversity using nonracial means like Texas’s percentage program. That could mean they would have to start using a percentage plan as well.”
Even if the Court didn’t directly alter college and law school admission procedures, it might require other changes that would be harmful, said Dorf. For example? “A substantial contraction in the diversity of students graduating from good colleges would reduce the diversity of the law school applicant pool,” he said.
“If the Court doesn’t require a percentage plan but rules that race can no longer be a factor in admissions criteria, the question then is what race-neutral means are available to law schools for achieving diversity,” Dorf asked. “There are some. You can ramp up your outreach. There, you are not making race an express criterion for admissions—just for recruiting. You could weight factors that have some connection to the kinds of diversity you want, for example, disadvantage and obstacles overcome. But I think the bottom line is unless you just disobey the law, there’s no way to get the same level of diversity using purely race-neutral means.”
Shiffrin, who is chair of the school’s admissions committee, is particularly concerned that fewer minorities in undergraduate programs will lead to even fewer at law schools. “Law is an important occupation for advancing political positions,” he asserted. “To screen minorities out of that profession is unthinkable.”
Johnson added: “It’s not just about the classroom but about the cadre of lawyers that we send out and how the profession will be much impoverished.”
Others worry about fewer minorities among law faculty. Professor John Blume, who heads a committee on diversity at the Law School that is part of a university-wide initiative, said: “We are in agreement that we would like to have a more diverse faculty in addition to a more diverse student body, that includes traditionally underrepresented minorities.”
“To increase the pool of diverse faculty applicants,” said Holden-Smith, who also serves on the school’s diversity committee, “we might encourage our own minority law students to consider careers teaching law as well as make opportunities available for our graduates to come to the Law School for several years to work on research projects, perhaps teach a course, and get some mentoring. While such programs require money, the Law School would get something out of it as well. We’re exploring that possibility as part of the university’s diversity initiative.”
She also would like to see more resources devoted to making the climate at the school and the university one in which minority students and faculty will flourish.
If such initiatives succeed, that will be good news to the leaders at major law firms, who are counting on recruiting, especially from top-tier law schools like Cornell’s, the diverse associates they’ll need to flourish in a changed global environment.
“We’re in a different world now,” noted Richards-Yellen. “You have to have diversity so you can be a competitor.”
To prove her point, she asked: “What do clients think about when they hire a law firm? Number one is firm size,” she said, “but number two is commitment to diversity. Law firms have to figure out how they can be more profitable and imaginative. If they’re smart, serious, and want to get somewhere, they’ll invest in diversity.”
Her law firm, Hinshaw & Culbertson, was the Defense Research Institute’s top firm for diversity in 2012 and is a top-ranked LGBT employer, she noted. The firm measures and rewards support for diversity as part of its compensation, and its mission statement includes a commitment to diversity and inclusion, she reported.
Richards-Yellen, whose primary job at the firm is diversity, said that law firms will only be successful at recruiting the best and most diverse group of employees if they make doing so a priority, sanctioned and supported by those at the top.
Ross concurred. “I was part of a group considering other firms,” he said, “but Perkins Coie’s ethos made it the most attractive one to me.” The firm’s leadership “believes it’s important for us to have a diverse organization, do pro bono work, and make an impact on our communities.” Employee support for those values may be why the firm was named one of Fortune magazine’s “100 Best Companies to Work For” in 2013, for the eleventh straight year.
And being diverse may have enhanced the firm’s success. It has won scores of awards, including “Venture Capital Law Firm of the Year” in 2011–12 by U.S. News, and has such high-end clients as the current resident-in-chief at 1600 Pennsylvania Avenue and many of Seattle’s top firms.
Whatever current Supreme Court justices decide in Fisher about the value of diversity, they would do well to have considered the words of the former justice who wrote the majority opinion in Grutter. In 2010, Sandra Day O’Connor and Dean Schwab considered the role of diversity and race, cowriting an essay published in The Next Twenty-Five Years: Affirmative Action in Higher Education in the United States and South Africa.
“When the time comes to reassess the constitutionality of considering race in higher-education admissions,” they wrote, “we will need social scientists to clearly demonstrate the educational benefits of diverse student bodies, and to better understand the links between role models in one generation and aspirations and achievements of succeeding generations.”
Cornell Law Students and Recent Graduates, on Diversity's Value
The term ‘diversity’ does not apply only to race. It encompasses many aspects of a person’s culture—food, religion, values, traditions, et cetera.
CLASS OF 2014
President, Black Law Students Association; and member, Latino American Law Students Association
As a member of both the Black Law Students Association and the Latino American Law Students Association I have the opportunity to learn about the diverse Latin American community as well as the black community. Participation in both offers me a valuable cultural experience.
The more cultures one is exposed to and learns to appreciate, the more adaptable one becomes professionally. Diversity can also serve as a great learning tool because it provides people with a broader, more accurate view of their own society and those within it.
After law school, I plan to pursue a career in international arbitration. I want to learn more about the legal systems of different countries and see firsthand how they differ from those in the United States.
CLASS OF 2012
Law clerk for Hon. Gerard E. Lynch, Federal Court of Appeals, Second Circuit; former member, Black Law Students Association and Lambda Law Association
I was an officer in both the Black Law Students Association and in Lambda. Those types of groups are important because they provide a space in which students are at liberty to be themselves. By simply being yourself, you often enrich others’ experiences.
When you’re training to work in the real world, it’s important to be exposed to ideas you may not have heard anywhere else. Exposure to diverse points of view intellectually enriches us all and is critically important to our society.
Too often, the most vocal critics of affirmative action frame the debate as if minority students are getting a preference not afforded to other students. But seeking out minority, diverse, and underprivileged students who will excel is surely no more problematic than seeking out those students whose parents and grandparents are alumni. A broader focus on diversity can only broaden the legacy of excellence.
CLASS OF 2014
President, Latino American Law Students Association
I emigrated from Ecuador to the United States when I was thirteen. Despite obstacles, I was determined to succeed and follow my dream of becoming a lawyer.
Diversity is important at law schools because not all great minds think alike. During my time at Cornell Law School, I have met people with backgrounds, views, and beliefs similar to my own and others with completely different ones. That taught me to analyze, understand, and appreciate my beliefs but also opened the door to new thoughts and perspectives. Most importantly, my experience at the Law School has developed my intellectual diversity and made me better equipped to become a successful member of the legal profession.
Diversity helps law firms meet the needs of an increasingly diverse pool of clients. After graduation I hope to work at a firm where I can help other countries develop economically.
CLASS OF 2014
President, South Asian Law Students Association
I’m a first-generation American, born here in the United States to parents from India.
About 32 to 39 percent of students at the Law School say they come from diverse backgrounds. That’s good, but it’s not enough. Constitutional Law courses offer an opportunity for people to speak out, but often so few students have diverse backgrounds that those who do keep quiet because they don’t want to be branded as different.
That’s too bad because today, with global boundaries changing, it’s more important than ever to encounter opinions, ideas, and perceptions different from your own.
In every way in which we study and learn, diversity plays a role. It shapes how one learns. It’s important that people from diverse backgrounds are given the same opportunities as others—at law school and later on the job.
Class of 2014
President, Native American Law Students Association
I grew up in a low-income, single-parent Native family. My classmates are incredibly bright and most are conscious of the struggles that underrepresented communities face. Our conversations influence our understanding of controversial policy decisions and are the foundation of our legal education.
Diversity is especially important to law students because of where we’re headed after graduation. While at school, we are building our skills in a host of areas—and how we each view, understand, and practice diversity is vital in preparing for our legal careers. That’s why our classrooms must be representative of the communities we hope to serve and the ideal of equality we hold.
Society should be equally invested in a conversation about affirmative action. If we want to change the status quo of inequality and overall income disparity, the conversation must start with equal access to education—and that is what I believe affirmative action works toward.
Winter L. Torres
CLASS OF 2007
Attorney and CSR (Collaborative Strategic Reading) program coordinator, Padres & Jóvenes Unidos (Parents and Youth United), Denver, Colorado
I grew up in southern New Mexico, confronting poverty and racism. I was the valedictorian of my high school, attended the University of New Mexico on scholarship, then worked in politics before coming to Cornell Law School. I got a great education there. I was head of the Latino American Law Students Association and am still good friends with the other heads of the minority student organizations.
I remember bringing a different perspective to class. Since I graduated, I know that Professor Rachlinski has presented on ‘implicit bias.’ You don’t know you’re doing it, but you are treating minorities differently. Implicit bias probably plays a role in the vast achievement gap that greatly impacts the families I work with, and America’s future.