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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)

National data regarding law school admissions trends must be placed in the proper context by analyzing a salient feature of the current landscape: the impact that affirmative action bans have had on public law schools. Commentators addressing affirmative action can be deservedly criticized for relying on selective data rather than larger samples including several schools and several years. Similarly, in "reverse discrimination" suits challenging race-conscious admissions programs, courts have made problematic factual findings about the consequences of ending affirmative action. For example, in Grutter v. Bollinger, the district court rejected the defendant intervenors' argument that ending affirmative action would result in resegregation at the University of Michigan Law School. The court noted its "sincere hope that such consequences can be avoided," and the court based its speculation on an apples-to-oranges comparison with the UC Berkeley Graduate School of Education and the undergraduate campuses in the UC system, which vary considerably in their selectivity.

Compounding the problem in Grutter, in January 2003, the Bush Administration filed an amicus brief with the Supreme Court in support of the White plaintiffs in which it argued that the University of Michigan Law School's affirmative action policy was unconstitutional because there are ample race-neutral alternatives that will yield comparable levels of racial and ethnic diversity. Shockingly, the Bush administration assured the Court there were "ample" alternatives, while at the same time, it failed to discuss what happened when affirmative action was ended at law schools in California and Texas that are comparable to the University of Michigan Law School. Clearly, a more systematic analysis of the impact of affirmative action bans on legal education is needed.

As mentioned above, the Supreme Court will issue a ruling in Grutter v. Bollinger in the early summer of 2003, which will affect affirmative action plans at public and private universities and colleges across the nation. As it stands, affirmative action in higher education is under greater threat today than at any time since Bakke. In the wake of the Fifth Circuit's decision in Hopwood v. Texas, California's Proposition 209, the University of California Regents' SP-1 Resolution, Washington's 1-200 Initiative, and the "One Florida" plan, a substantial number of America's leading public law schools terminated race-sensitive affirmative action in recent years.

Ending race-sensitive admissions at public law schools in California, Texas, and Washington has had significant negative consequences for African Americans, Latinos, and American Indians. The first prohibition on affirmative action occurred when the UC Regents approved SP-1 in July 1995, which ended race- conscious admissions at the graduate and professional levels beginning on January 1, 1997, and the undergraduate level ne year later. This was followed up with Proposition 209, a November 1996 voter-backed amendment to the California Constitution that took effect in January of 1998. In the 1996 case of Hopwood v. Texas, a challenge to the affirmative action program at the University of Texas Law School, the Fifth Circuit ruled that diversity (i.e., the educational benefits that flow from having racially diverse learning environments) was not a compelling governmental interest. This ruling had the effect of prohibiting race-conscious admissions at public and private higher educational institutions in Texas, Louisiana, and Mississippi.

Washington voters passed Initiative 200, a ballot initiative with wording identical to Proposition 209, in November 1998. Finally, the "One Florida" plan, adopted in November 1999 by Governor Jeb Bush's executive order, discontinued race-conscious affirmative action in the Florida public university system beginning in 2000 at the undergraduate level and in 2001 at the graduate and professional levels. Although the "One Florida" plan grants students who graduate in the top twenty percent of their high school class a spot in at least one public university, there is no analogous admissions plan for law, medical, business, and graduate schools.

UC Berkeley (Boalt Hall), UCLA, UC Davis, the University of Texas (UT), and the University of Washington (UW) have been greatly impacted by the end of affirmative action. The law schools at the University of Florida and Florida State University are not discussed here because the One Florida Plan only took effect for the entering class of 2001 and because Florida still has race- conscious financial aid. For Boalt Hall, UCLA, C Davis, and UT, the admissions data include the five years after Prop. 209/SP-1 and Hopwood (1997-2001), which are compared to the four years before the ban on affirmative action from 1993 to 1996. For UW, the three post-Initiative 200 admissions cycles (1999-2001) are compared to the admissions cycles for the last three years with affirmative action (1996-1998).

Tables 4 and 5 and Chart 7 compare the number of enrolled first-year African Americans in the years before and after affirmative action was prohibited. Total enrollments for each class are included in parentheses to account for fluctuations in enrollment totals over time. The data reveal a precipitous drop in African American enrollments after affirmative action was banned. Across the five schools, African Americans were 6.65% of enrollments with affirmative action, but 2.25% of enrollments without affirmative action. In effect, the clock was turned back on three decades of affirmative action in California. At Boalt Hall, African Americans were 2.7% of enrollments from 1997 to 2001. By comparison, Blacks were 9.0% of enrollments in the first five years in which affirmative action took full effect (1968-1972). Likewise, African Americans were 7.5% of enrollments at UCLA in the first five years of affirmative action (1967-1971) but only 2.3% of enrollments thirty years later (1997-2001). The University of Texas came full circle as well, as a half- century of hard-fought yet halting progress was erased. In 1951, Heman Sweatt and the five other African American entrants to the first post-de jure segregation class at UT constituted 2.1% of enrollments. African Americans were a nearly identical proportion of enrollments (2.2%) at UT in 1997-2001. The extent to which Boalt, UCLA, and UT became resegregated is particularly disheartening in light of the recent history of those institutions. Boalt Hall and UCLA combined to award nearly 600 law degrees to African Americans between 1987 and 1997, and UT produced some 650 Black attorneys prior to Hopwood. It should also be noted that African Americans were 11.1% of the national applicant pool from 1993 to 1996 and a slightly higher 11.4% from 1997 to 2000.

CHART 7 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

Tables 6 and 7 and Chart 8 compare the number of enrolled first-year Latinos in the years before and after affirmative action was prohibited. Based on the combined data from the five schools, Latinos were 11.8% of enrollments with affirmative action, but 7.4% of enrollments without affirmative action. There was a substantial 47% drop in the proportion of enrollments at Boalt and UCLA combined. The impact at the University of Texas was more modest, which is partly a reflection of the fact that Texas's pre-Hopwood affirmative action program included Chicanos but not other Latinos. The real drop in Latino enrollments is actually understated by Chart 8 insofar as Latinos were 7.1% of the national applicant pool from 1993 to 1996, compared to 8.3% from 1997 to 2000, an increase of 15%.

As with African Americans, for Latinos, the clock was also turned back on three decades of affirmative action. At Boalt Hall, Latinos were 6.4% of enrollments from 1997 to 2001, a smaller figure than the 7.3% of enrollments in the first five years in which affirmative action took full effect (1968-1972). To give these figures added context, Boalt Hall and UCLA together awarded over 800 law degrees to Latinos between 1987 and 1997, and UT was the top Chicano feeder law school in the nation, producing over 1300 Chicano attorneys prior to Hopwood.

TABLE 6: LATINO ENROLLMENTS AT ELITE PUBLIC LAW SCHOOLS BEFORE AFFIRMATIVE ACTION WAS PROHIBITED

TABLE 7: LATINO ENROLLMENTS AT ELITE PUBLIC LAW SCHOOLS AFTER AFFIRMATIVE ACTION WAS PROHIBITED

CHART 8 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

The analysis of American Indian enrollment patterns is less detailed because the samples are so small, and therefore, trends at a single law school are potentially misleading. In addition, the University of Texas is excluded because it did not include American Indians in its pre-Hopwood affirmative action policy. Combining Boalt, UCLA, and UC Davis statistics from 1993 to 1996 with Washington statistics from 1996 to 1998, American Indians were 1.4% of enrollments with affirmative action in place. At Boalt, UCLA, and UC Davis from 1997 to 2001 and Washington from 1999 to 2001, American Indians were 0.81% of enrollments, a drop of 42% in the wake of Prop. 209/SP-1 and I-200. An average of ten American Indians enrolled annually at Boalt, UCLA, and UC Davis combined from 1993 to 1996, compared to five per year from 1997 to 2001. For historical context, Boalt, UCLA, and UC Davis combined to enroll twelve American Indians in 1972 and ten in 1973. Boalt alone had eight American Indian first-year students in 1972 after they were added to its affirmative action plan.

Recent data in Table 5 indicate that African American enrollments were somewhat better in 2000 and 2001 than they were from 1997 to 1999. On the other hand, the consequences of banning affirmative action at the undergraduate level are only now beginning to unfold. This is particularly troublesome since nationwide, the top five producers of applicants to law school over the five most recent admissions cycles (1996-1997 to 2000-2001) are UCLA (4468 applicants), UC Berkeley (4314), University of Michigan-Ann Arbor (4094), University of Texas-Austin (4083), and the University of Florida (3916).

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