A Brief History of Affirmative Action in Law School Admissions

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Affirmative action is a necessary tool in the Law school admissions process.

In a perfect world, we would all be judged based solely on our own merits. However, we do not live in a perfect world and to judge on merits alone would leave too many people behind. "People of color have a right to have their considerations taken into account." [Charles, Guy-Uriel E.]. There are thousands of whites applying to colleges and universities all over this country compared to only hundreds of people of color. We must come up with fair and impartial ways to level the playing field in order to give people of color a fighting chance to better themselves in order that they might succeed and prosper. "Apart from the educational benefits, affirmative action in law school admissions has produced many highly successful minority lawyers and has noticeably desegregated the profession." [Brest, Paul]. The population of this country is diverse; the legal profession must be likewise.

Just as the population of this country is diverse, so are our opinions, and beliefs. Affirmative action has been and most probably will continue to be a highly controversial issue. Justice Powell set the precedent in the Bakke case. This case produced six separate opinions with no majority. In these six opinions, four justices upheld the decision, four avoided the constitutional question, striking down the program on statutory grounds, while Justice Powell, who provided the fifth vote, invalidated and set aside the program reversing the state injunction against race whatsoever, only holding that the state needs to devise a program that involves a competent consideration of race and ethnic origin.

In 1977, Mr. Bakke, who is white, had applied to medical school at the University of California, Davis and was denied admissions. In his decision, Justice Powell stated that he: ..."approved the University's use of race to further only one interest: the attainment of a diverse student body, with the important proviso that constitutional limitations protecting individual rights may not be disregarded...race is only one element in a range of factors a university may consider in attaining the goal of a heterogeneous student body." [Regents of the Uni. of Cal. v. Bakke, 438 U.S. 265, 57 L. Ed. 2d 750, 98 S. Ct. 2733(1978)].

In 1996, Barbara Grutter, a white student applied for admissions to the University of Michigan Law School. She was denied admissions. In her opinion, her denial was based on race. However, when applying to the University of Michigan Law School, admissions officials are required to "evaluate each applicant based on all the information available in the file". [Barbara Grutter, Petitioner v. Lee Bollinger, et al., 539 U.S. 306, 156 L. Ed. 2d 304, 123 S. Ct. 2325]. This means that the admissions officials look at such things as personal statements, grade point averages, and letters of recommendation “…and finally…students from groups which have been historically discriminated against, like African-Americans, Hispanics, and Native-Americans.” [Grutter v. Bollinger]. The last thing they look at is race. Diversity is necessary as it exposes college students to other peoples and cultures and to their different ideologies. This becomes vital to areas such as national security, understanding a global market, and is essential to fulfilling “one nation under God”. Perhaps, since the justices cannot agree on exactly how to achieve this objective, it would be best to leave it in the hands of the colleges who best know and understand their students, and should therefore, have the freedom to pick and chose who goes their colleges.

While Law School looks at the entire file of a potential applicant, other departments at the University of Michigan, use a point system. For instance, "...110 can be assigned for academic performance...residents receive 10 points... and finally 20 points bonus if he or she posses any of the following "miscellaneous factor: membership in an underrepresented minority group...". [Jennifer Gratz and Patrick Hamacher, Petitioners v. Lee Bollinger, et al, 538 U.S. S. 244, 123 S. Ct. 2411]. Again, race is one of the last things that the admissions officials look at and, based on this point system, Barbara Grutter would have received an automatic 10 points for having been a resident. Clearly, race is not the sole determining factor. However, there is some concern among the dissenting justices that this point may force the college to chose between “child “A”, born of a successful black doctor, with the promise of superior academic performance, or child “B”, born of semi-literate parents, who grew up in the ghetto without the promise of academic performance, but with high energy and leadership skills, or child “C” who is a white student, with extraordinary artistic talent, giving him an edge over child “A” and child “B”. Therefore, critical criteria are often focused on individual qualities and experiences, not dependent on race but sometimes associated with it“. [Gratz, Jennifer and Patrick Hamacher].

Because this issue is so controversial, our own supreme court justices cannot agree on it even from case to case.

For instance, in Grutter v. Bollinger, Justices Ginsburg, Breyer, Stevens, O’Connor and Souter concurred with the court's ruling, and Justices Rehnquist, Kennedy, Scalia, and Thomas dissented. However, in the in Grantz v. Bollinger case, Justices Rehnquist, Kennedy, Scalia, Thomas, and O'Connor concurred with the court's decision while Justices Ginsburg, Breyer, Stevens, and Souter dissented. These are very similar cases with completely different rulings by these very different Justices. [Gates, W. Todd, Legal Research and Writing, B.P.C.C., October, 2005].

Unfortunately, because this issue is so controversial, the problem is not just at the University of Michigan. Thousands of applicants apply to colleges and universities across the country, and each only has a few hundred seats to fill. While the majority of these applicants are white, Katharine Bartlette, dean of Drake Law School said minority numbers "go up and down". [Jones, Leigh]. With the number of minorities fluctuating from year to year, leveling the playing field becomes increasingly difficult.

For minority students, there are some possible solutions. For example, "the University of Akron School of Law in 2002, started Camp Law school, which brings lawyers, police officers and judges to students already spending their summers at camps. Amber Stinnett, a student at Shaw High School in East Cleveland, attended the Case Western program this summer in hopes of fulfilling her dream of becoming a lawyer." [The Associated Press State and Local Wire, July 4, 2005, Monday, BC cycle]. By getting children, at earlier ages, interested in such things as law, math, or the sciences, in these fun summer camp arenas, perhaps we will be able to eliminate some or ideally, most of the problems we currently face with the number of minorities applying to universities across the nation.

Like it or not, right or wrong, affirmative action is a necessary tool in the admissions process. "...Apart from its educational benefits, affirmative action in law school admissions has produced many highly successful minority lawyers and has noticeably desegregated the profession. It would be tragic if the court were to halt this work in progress just at a time when Americans of many persuasions appreciate both the progress that has been made to date and the unmet needs still before us."[Brest]. "People of color have a right to have their considerations taken into account. By the same token, the Court attempted to spread the burdens as broadly as possible." [Charles]. Hopefully in time, we will find a way to increase the number of minority applicants making the ratio between whites and minorities more equal. The population of this country is diverse; the legal profession must be likewise.

Works Cited

1. Barbara Grutter, Petitioner v. Lee Bollinger, et al. 539 U.S. 306, 156 L. Ed.2d 304,123 S. Ct. 2325. https://www.law.cornell.edu/supct/html/02-241.ZO.html

2. Brest, Paul, Drake Law Review, 2003, 51 Drake L. Rev.683.

3. Charles, Guy-Uriel E., Tulane Law Review, June 2004, 78 Tul. L. Rev. 2009.

4. Gates, W. Todd, Legal Research and Writing, B.P.C.C, October, 2005.

5. Jennifer Gratz and Patrick Hamacher, Petitioners v. Lee Bollinger, et al. 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003). https://www.law.cornell.edu/supct/html/02-516.ZO.html

6. Jones, Leigh, National Law Journal, August 22, 2005.

7. Regents of the University of California v. Bakke, No. 76-811, Supreme Court of the United States, 438 U.S. 265; 98 S. Ct. 27733; 57 L. Ed. 2d 750, 1978 U. S. LEXIS 5; 17 Fair Empl. Prac. Cas. (BNA) 1000; 17 Empl. Prac. Dec. (CCH) P 8402. https://www.law.cornell.edu/supremecourt/text/438/265

8. The Associated Press State and Local Wire, July 4, 2005, Monday, BC Cycle.

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NOTE: When I went back to college, I was categorized as a "non-traditional college student" because I was 47 years old. As part of my general studies I took a Political Science class. That was a rough year and I had a very tough introduction to the Socratic Method which I was unfamiliar with and completely unprepared for... Perhaps, later, I'll tell you all the story about how the teacher and I finally reconciled our differences.

Anyway, I don't see any reason for those college papers to continue wasting space on my computer. So, I plan on sharing them with you all in addition to my more hippy-esque writings regarding natural remedies, foraging, and whatever else comes up. With the current state of our country, in honor of Martin Luther King, Jr day, and the upcoming Inauguration, this paper seemed as likely a place to start as any other.

Thank you for reading it. I hope you find it informative and useful.

P.S. Every month I put up a new kids' activities calendar on my website: Apothecae Network.
I'm still learning all this computer stuff, so my daughter's been helping me.