| VII. THE CONTEMPORARY ADMISSIONS ENVIRONMENT: 1987-2000
This fifty-year history concludes with an analysis of the current
national landscape of law school admissions. As in the late 1970s and
mid-1980s, White applicants to ABA law schools continue to have higher
cumulative admissions rates to ABA-accredited law schools compared to
African American, Latino, and American Indian candidates. The 1987-2000
data in Chart 9 present an interesting paradox because during the early
1990s, when application volume hit record levels, acceptance rates were
actually more equitable than in the late 1990s, when application volume
was about 30% lower than in 1991. All other factors being equal, a time of
heightened competition would be more likely to exacerbate than ease racial
and ethnic disparities in admissions rates; therefore, it is important to
examine what other social forces might have influenced the law school
admissions process in the last decade.
The resolution of this paradox of greater equity amidst heightened
competition actually highlights a point that has been true all along about
affirmative action, but one that is often difficult to quantify: student
activism had an important impact on the law school admissions process in
the last decade. It is easy to forget, in part because this analysis of
admissions statistics is necessarily so reliant on official sources, that
higher education affirmative action programs were never designed by
university chancellors, deans, and faculty committees in a vacuum. Rather,
affirmative action programs were closely linked to student efforts to
strive for access and integration through political actions and protests.
For instance, in 1972, the Boalt faculty felt traumatized by the rapid
transformation in student demographics brought about by affirmative action
and the atmospheric shift that ensued. The Boalt faculty proposed ending
the "special" admissions program altogether. This proposal was
only defeated after students of color organized a two-week strike in April
1972 and were able to attract considerable media attention. Throughout the
last three decades, students at many law schools have engaged in numerous
sit-ins, hunger strikes, rallies, and other actions organized around
student and faculty diversity issues.
HART 9
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Based on the national law school data, the Boalt Coalition for
Diversified Faculty helped to organize a highly successful
"Nationwide Law Student Strike for Diversity" (National Strike)
on April 6, 1989. Law students from at least thirty schools, including
Stanford, UCLA, UC Davis, UC Hastings, University of San Diego, University
of San Francisco, University of Chicago, University of Michigan, Harvard,
New York University, Cornell, University of Wisconsin, University of
Texas, Northwestern, Yale, University of Southern California, University
of Alabama, University of New Mexico, University of Colorado, Brooklyn,
Fordham, University of Nebraska, and University of Illinois, participated
in the National Strike by boycotting class and conducting teach-ins to
protest "discrimination based on race, gender, economic class, and
sexual orientation within America's law schools." Professors Cho and
Westley persuasively document that the strike was associated with a
substantial, though temporary, national increase in the hiring of minority
law faculty. For instance, between 1980 and 1987, on average, less than
two Latinos per year were hired as full-time law teachers, compared to an
average of twelve from 1989 to 1993.
national data in Chart 10 indicate that the admissions cycle
immediately following the National Strike (1989-1990 applicants for
enrollment in the fall of 1990) was, for African American and Latino
applicants, the high- water mark of opportunity in the Bakke to Grutter
era. Recall that in the 1976-1985 period, the Black-White acceptance ratio
was in the .66-.70 range. The Black-White ratio jumped from .71 in 1988 to
.86 in 1990. Likewise, Chart 10 reflects that the Latino-White ratio rose
from .81 in 1988 to .92 in 1990. Regarding Chicanos specifically, between
1976 and 1985, the Chicano-White acceptance ratio was in the .80-.85
range, yet that ratio rose from .91 in 1988 to 1.00 in 1990, the only time
in the last quarter-century in which Chicanos and Whites had equal
cumulative acceptance rates to law school. Given that the 1990-1991 period
represented historic highs for people of color both in terms of
law-faculty hiring and law school admissions, it is reasonable to conclude
that the student activism leading up to the National Strike--and the
larger mood of which that strike was a tangible sign--had a significant
influence on the structuring of opportunities in legal education in the
early 1990s.
CHART 10
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In addition to showing the important role that student activism must
have played in increasing the number of minority law school professors and
students, the national admissions data also suggest that Hopwood,
Proposition 209, other affirmative action bans, and the threat of
litigation had a chilling effect on admissions opportunities for students
of color in the mid- to late 1990s. Although Hopwood and Prop. 209
affected only a handful of schools, the data in Chart 10 show that the
fall of affirmative action has had a wider impact. Charts 11A and 11B add
context to the charts above by listing admissions rates for Whites and
underrepresented minorities with equivalent UGPAs. With the data broken
down by UGPA range (3.0-3.24, 3.25-3.49, etc.), American Indians, African
Americans, Chicanos, Puerto Ricans, and other Latinos were combined into a
single category for sample size reasons. What is most noticeable about
Charts 11A and 11B is how admissions rates for underrepresented minorities
(URMs) are basically flat between 1992 and 2000. In contrast, admissions
rates for White applicants, in most cases already higher than those for
URMS with the same UGPAs, increased significantly between the mid-1990s
and the late 1990s. Thus, Chart 11A reveals that by 1996, White applicants
with 3.0-3.24 UGPAs had admissions rates similar to URM applicants with
3.5-3.74 UGPAs. Likewise, Chart 11B indicates that in the late 1990s,
White applicants with 3.25-3.49 UGPAs had admissions rates similar to URM
applicants with 3.75+ UGPAs. National data over the last fifteen years
demonstrate that law schools respond to both progressive and conservative
political developments.
CHART 11A
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HART 11B
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VIII. CONCLUSION
The findings presented in this Article support four central claims.
First, before affirmative action began in the late 1960s, legal education
and the legal profession were almost entirely de facto segregated. Second,
affirmative action must be placed in its proper context, because even when
these programs exist, nationally, White students consistently have higher
admissions rates than students of color in the years since Bakke. Third,
race-neutral alternatives to affirmative action in law schools are
ineffective at producing significant levels of diversity. When public law
schools in California, Texas, and Washington banned affirmative action the
number of underrepresented minorities was lower than it had been in three
decades. Fourth, recent national admissions data indicate that student
activism has a tangible effect on admissions rates. Affirmative action
bans and threats of litigation have had a chilling effect on admissions
rates for students of color nationwide.
In summary, efforts to diversify legal education have met with mixed
success. On one hand, as the figures in the Appendix indicate, total
first-year enrollment levels for American Indian, Chicano, Latino, and
African American students have risen significantly in the last two
decades, even though overall enrollment levels have been nearly flat. On
the other hand, admissions rates for students of color, both cumulatively
and among those with equivalent UGPAs, continue to lag behind those of
White applicants. In fact, it is discouraging to note that the Black-White
acceptance ratio was lower overall between 1996 and 2001 than for any
other period since Bakke. Much remains to be done before it can be said
with a straight face that law school admissions operate on an equal
playing field. It is also clear from the pre-affirmative action era as
well as from data on recent affirmative action bans in California, Texas,
and Washington, that if he Supreme Court prohibits institutions of higher
learning from using race and ethnicity as a significant plus factor in
admissions, law schools will experience substantial resegregation.
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