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William C. Kidder
William C. Kidder, The Struggle for Access from Sweatt
to Grutter: a History of African American, Latino, And American Indian
Law School Admissions, 1950-2000, 19 Harvard BlackLetter Law Journal
1-41 (Spring, 2003)(190 Footnotes)
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| In Grutter v. Bollinger, a challenge to race-conscious
affirmative action at the University of Michigan Law School, the Sixth
Circuit recently ruled that achieving diversity to enhance education is
a compelling governmental interest and that the Michigan Law School's
program is narrowly tailored to meet that goal. With the Supreme Court
granting review of Grutter to consider the constitutionality of the
Michigan Law School's affirmative action policies, it is a particularly
opportune time to look back at law school admissions over the last
half-century. Because the Court treats Title VI of the Civil Rights Act
of 1964 as coextensive with the Equal Protection Clause of the
Fourteenth Amendment, and since every law school accredited by the
American Bar Association (ABA) is a recipient of federal funding, the
Court's ruling in Grutter will have profound implications n the ability
of private and public law schools and other institutions of higher
learning to maintain diverse student bodies.
In this Article, using a wide array of published and unpublished
data, I attempt to document and analyze law school admissions
opportunities for African American, Latino, and American Indian students
over the past fifty years. In particular, I review the meager
representation of students of color in law schools in the
pre-affirmative action era. I also analyze the early development of
affirmative action in the late 1960s, particularly at so-called
"elite" law schools, and I consider the increase in
competitiveness of law school admissions during this same period--a
phenomenon that led schools to place increasingly greater reliance on
the Law School Admission Test (LSAT). In chronicling the national
enrollment and admissions decision patterns since the 1970s, the Article
also focuses partly on the impact of the Supreme Court's ruling in
Regents of the University of California v. Bakke.
The historical and contemporary law school admissions and enrollment
data, I argue, will support four claims. First, before law schools
adopted affirmative action programs in the late 1960s, law schools and
the legal profession were overwhelmingly de facto segregated. Second,
even with the tool of affirmative action, White students have
consistently had higher admissions rates than students of color since
the mid-1970s. Third, a comprehensive review of the consequences of
ending affirmative action at public law schools in California, Texas,
and Washington reveal that there is little evidence that race-neutral
alternatives to affirmative action are viable in legal education. When
affirmative action was prohibited at law schools that are similar to the
University of Michigan, the number of underrepresented minorities sank
to levels not seen since the late 960s. Finally, recent national
admissions data are consistent with the conclusion that student activism
can have a positive influence on admissions rates. Conversely,
affirmative action bans and threats of litigation are associated with a
widening of the gap in admissions rates in recent years between Whites
and students of color nationwide. |
