Affirmative action on the stand

Lurking in the shadows of the nation's top law school admissions departments, an elephant has entered the room.

No one, that is, can seem to give a straight answer about affirmative action.

Representatives from law schools at Duke, the University of Michigan, the University of Pennsylvania, Vanderbilt University, the University of Virginia and Yale University all say white students are not disadvantaged in their admissions processes.

But the Center for Equal Opportunity, a conservative think tank based in Washington, D.C., has marshaled data that they claim proves otherwise. Last year, the group reported that an in-state black student is in many cases overwhelmingly more likely to earn admission to Virginia Law than a white, Asian or Hispanic counterpart with an identical grade point average and LSAT score. Similar findings permeated a 1995 report about Michigan Law.

Meanwhile, universities across the country await what promise to be two landmark court cases in April, when the Supreme Court will consider the constitutionality of racial preferences in admissions at law schools and collegiate admissions in general.

Many questions have surfaced, few of them fully answered. Ultimately, however, a single inquiry has dominated debate: In a system designed to help black applicants and other "preferred" minorities, are white applicants and other minorities unfairly harmed?

The murkiness begins with the courts. In 1973, Allen Bakke, a white applicant to the University of California at Davis School of Medicine, sued the institution after being denied admission.

Five years later, the Supreme Court ruled in Regents of the University of California v. Bakke that the university could not hold a quota of places for minorities.

"The school hadn't taken a hard look at its policies since the late 1970s," Shields says. "That was the primary reason for the development of it.... It was not driven by a notion of diversity in and of itself."

Shields says he thinks the majority of opponents of the admissions process simply are not aware of how it works.

"I think that, for years, there have been a small minority of people who don't like race-conscious admissions policies. I think there are a lot more people who don't have a clear understanding about how schools have thought about making their admissions and therefore have some queasiness about race-conscious admissions," he says. "The people who oppose it have been persistent and tenacious about their views."

Ironically, both proponents and opponents of Grutter's case have cited the Bakke case as a defense.

"The question is whether what the University of Michigan has done is a quota or whether they've considered race as just one factor," says James Coleman, senior associate dean for academic affairs at Duke Law. "In the undergraduate case, they look at the fact that it rewarded so many points to students on the basis of their race. The argument is that with an extraordinary number of points based on race, that amounted to a quota.

"But the law school did not make decisions on that basis," continues Coleman, who plays an important role in the case himself, as the chair of an American Bar Association task force supervising the writing of a brief to be filed in support of the University of Michigan. "They were able to look at each individual and see if that person would be admitted. It's the difference between a small school and a large university with tens of thousands of applications."

While neither Duke, Michigan, Penn, Vanderbilt, Virginia nor Yale treat race as a quantitative factor for law school admissions, reactions to the practice run the gamut.

"It's probably a pretty dangerous approach... because race without looking at it in context of a person's achievements and who they are, simply looking at skin color alone is a very incomplete picture of what a person is," says Susan Palmer, associate dean of admissions at Virginia Law. "We want to look at the person as an individual. Anything else becomes a very blunt tool."

Representatives from Penn and Yale say their law schools do not use any sort of quantitative scale, but are hesitant to criticize it.

"I think that law schools and any higher education institution should have discretion, of course within the guidelines by Bakke, about how they want to view race in admissions," says Derek Meeker, interim director of admissions and financial aid at Penn Law.

Duke Law Dean Katharine Bartlett says treating race as a quantitative factor is simply unnecessary.

"It's not that I think we couldn't defend it," Bartlett says. "I don't think [diversity's] value is easily reduced to a numerical measure."

But is there a difference between qualitative and quantitative preference?

"I think there's a lot of confusion about 'quantitative' and 'not quantitative'," says Scott de Marchi, assistant professor of political science at Duke. "However you treat the issue, it's going to come down to that you have some desire, and whether you go through applications qualitatively... or assign a number, I don't think it matters how you go about it."

The Michigan cases' central question--whether law schools are bending over backward to ensure that underrepresented minorities find a place in the practice--lends itself to fiery debate. But all six of the law schools contacted, including Michigan, have offered a single answer: They aren't.

"I think people who are less qualified suffer," Palmer says. "We are looking at so many different attributes that I don't think that you can say students from any state, any school, any race--none of that works to anyone's disadvantage. The only disadvantage is someone whose credentials don't stack up well."

Referring to it as a "delicate question," Evan Caminker, Michigan Law associate dean for academic affairs, says the accusation of white applicant disadvantage is "not accurate."

"White students are assessed just as minority students are, based on a totality of their talents and skills in the file," Caminker says. "A very high percentage of our white students admitted do so notwithstanding the fact that other white students with higher LSAT and GPA scores are rejected.

"Most are admitted because they themselves have something special on them in the file beyond the numbers," he continues. "Is any given white student worse off? No more than because we take Ph.D. status off--if he has no Ph.D., he's less likely to get in."

The Center for Equal Opportunity's findings, however, suggest otherwise. According to the group's 2001 study of Michigan Law's 1995 applicant pool, the school accepted black, Mexican, Puerto Rican and Native American students exceptionally more frequently than other applicants with identical LSATs and GPAs.

For instance, given an LSAT score between 156 and 158 and a GPA between 3.25 and 3.49, 15 of 18 "racially favored minorities" applicants (83.3 percent) gained admission, and only one of 75 other applicants (1.3 percent) gained admission.

And given an LSAT score between 159 and 160 and a GPA between 3.00 and 3.24, six of seven "racially favored minorities" applicants (85.7 percent) gained admission, whereas only one of 31 other applicants (3.2 percent) gained admission.

The group's study of Virginia's 1999 law school admissions yielded similar results. The Center for Equal Opportunity created a formula to model the school's admissions process and then predicted the probability of an applicant's offer of admission.

The group argued, for example, that with an LSAT score of 155 and a GPA of 3.00, a black applicant had a 32 percent chance of admission, while an Asian, Hispanic or white applicant had a zero percent chance. With an LSAT score of 160 and a GPA of 3.25, a black applicant had a 95 percent chance of an admissions offer, an Asian applicant had a 5 percent chance, and a Hispanic or white applicant had a 3 percent chance.

"For the officials of the University of Michigan and the University of Virginia to say that white students are not discriminated against because of their race means that those officials are playing semantic games," says Roger Clegg, general counsel for the Center for Equal Opportunity. "And there's no reasonable argument they can make that white students are not discriminated against, and incidentally that other [minority] students besides whites are not discriminated against."

At Duke, Senior Associate Dean of Trinity College Gerald Wilson, the dean for pre-law students, says discrimination against white students remains relatively rare.

"Can you point it out in a specific instance?" he asks. "Yes, probably. But overall, it's not a major problem."

Meanwhile, Bartlett contends that quantitative studies of affirmative action--especially ones purporting that white applicants do not get a fair shake--are misleading.

"One of the mistakes people make is that they assume if a minority student has the same LSAT and GPA as them, then they should get in," she says. "It's called a causation fallacy. [Affirmative action] affects an extremely tiny percentage of white students."

But is even a little bit of discrimination too much?

"Back in Texas, we would call trying to measure the amount of discrimination applied to any ethnic group 'a pissing contest,'" says Ed Bloom, director of legal affairs at the American Civil Rights Institute. "If African Americans are being just slightly discriminated against in a university setting, I would consider that to be intolerable. So if any group were slightly disadvantaged because of their ethnicity, I don't see that as any great comfort."

Thrown about the classroom and the courtroom with heightened frequency, "diversity" has emerged as the watchword for Bakke backers and bashers alike. Perspectives on the concept range from ethnic to political to geographical. For others, it's merely a synonym for trouble.

But each law school emphasizes that race comprises only one component of diversity.

"We look at diversity in a very broad sense of the word, things like major--someone coming from a unique background, biomedical engineering, for example," says Penn's Meeker.

Yale views diversity in the classroom as a means for preparing for the real world, says Tom Conroy, deputy director of public affairs at Yale.

"All the schools want to have a diverse student body, in the sense that racial diversity, geographic diversity draws people from different backgrounds and different experiences," he says. "The belief is that students who go to Yale, either the law school or some other school, will be living and working in a diverse world, so it's to their benefit that they study and learn in an environment that emulates this diversity."

But, for all intents and purposes, does diversity truly mean something more than a contrived ethnic mixture? Bloom argues not.

"Diversity is an undefined, feel-good, meaningless term," he says. "It has yet to be defined by its most ardent supporters. And as best I can tell, diversity is, as it's promoted by the academic elite in this country, nothing more than a smiley-face way of getting to proportional representation in every aspect of public life.

"What it does is send the message that all blacks are merely interchangeable with one another, that having black skin means that people share a common background, outlook, personality and experience. Diversity as it's practiced today is nothing more than skin color."

Law schools disagree emphatically.

"Race is the basis on which the Supreme Court took the [Grutter] case, so that's what we're focusing on," Coleman says. "I think there are a lot of different types of diversity that a law school ought to seek, but it's race and ethnic diversity in the courts. We're not talking about political viewpoints or anything like that."

Bloom counters that universities which do treat diversity as based on more than race are doing so solely for ulterior motives.

"I think they're preparing for a possible loss in the U.S. Supreme Court, and they're covering their collective law school asses by building a record that they really haven't been using race all along, that they've been using other factors," he says.

So what happens if the Supreme Court knocks down the Bakke protocol in April?

"It will be a great day for all Americans," says Clegg, of the Center for Equal Opportunity. "The principal beneficiary of an end to ethnic and racial preferences will be African-American students. Under the current system, law schools tell African-American students that they cannot be expected to compete at the same academic level as other students.

"That does not advance the cause of African Americans. It is insulting," he continues. "If you're being told that white students and blacks are not held to different standards based on ethnicity, then you are being lied to."

But for the most part, law school administrators are cautiously optimistic that the court will uphold the current system.

"I think it will be a 5-4 decision," Bartlett predicts. "They may uphold the law school, but not the undergraduate [policy]."

Hoping the Bakke standard will stay, representatives from Yale, Virginia and Penn declined to conjecture how admissions policies might change if it falls.

"There's a chance we'll get another Bakke-like opinion--it's not an easy opinion to interpret," Palmer says. "If we get a fragmented opinion like that, it will take a while to figure out how we will act."

The University of Texas provides one alternative to traditional affirmative action. By automatically accepting the top 10 percent of each Texas high school class, regardless of their high schools' quality, the system rewards students who succeed relative to others in similar circumstances. Because students from both poorer and wealthier schools earn admission, each class tends to be a socio-economically diverse group.

Bartlett and Caminker, however, worry that the University of Texas model cannot adequately replace the Bakke standard for law schools.

"Our current fear and understanding is that there is no viable alternative," Caminker says. "Both Texas and California have very high local minority populations and therefore are more likely to be successful in encouraging minorities to enroll than schools with not-so-big populations."

Bloom predicts universities will seek to continue current practices in secretive ways, even if the Supreme Court does overturn the Bakke decision.

"I think there will be massive resistance, especially on the part of elite universities, to consider finding stealth ways to continuing racial quotas, but in a way that can't be proven in a court of law," he says.

Coleman agrees diversity would remain an important goal in university admissions, but not one that would involve quotas.

"I don't think in the long run it's going to prevent us from having a diverse student body, because I think regardless of what the Supreme Court says, we are right about this," Coleman says. "The notion that it would be acceptable for the top schools in this country to train only white lawyers is never going to be accepted, so what we'll end up doing is find some other way to [achieve diversity] without taking race into consideration."