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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)



In an admissions environment of heightened competition and a political environment of backlash against Great Society programs, the constitutionality of higher education affirmative action was challenged in the courts only a few years after these programs began. The first major case was Defunis v. Odegaard, a suit by a White applicant denied admission to the University of Washington Law School. In 1973, the Washington Supreme Court overturned a state trial court decision and upheld the affirmative action program that benefited African Americans, Chicanos, American Indians, and Filipinos. This decision was stayed pending a ruling by the U.S. Supreme Court. The DeFunis case garnered significant national attention, which was reflected in twenty-six amici curiae briefs filed, a Supreme Court record at the time. However, by the time the case was argued before the Court in February 1974, Marco DeFunis was finishing up his last semester of law school and was set to graduate regardless of how the case was decided. The furor the case had created in academic and policy circles quickly dissipated when the Court dismissed the lawsuit as moot in a per curiam opinion.

Justices Brennan, Douglas, White, and Marshall dissented, arguing that the case deserved a ruling on its merits and that the issue would inevitably return to the Supreme Court. Justice Douglas authored a separate dissent that gave all sides reason for concern. On one hand, progressives were troubled that Douglas, a stalwart member of the liberal Warren Court, applied a strict scrutiny standard of review and seemed to go out of his way to condemn affirmative action:

The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans and not to place First Amendment barriers against anyone .... A segregated admissions process creates suggestions of stigma and caste no less than a segregated classroom, and in the end it may produce that result despite its contrary intentions ....

If discrimination based on race is constitutionally permissible when those who hold the reins can come up with "compelling" reasons to justify it, then constitutional guarantees acquire an accordionlike quality.

On the other hand, Justice Douglas also wrote that racial bias in standardized testing may be an adequate justification for affirmative action: "My reaction is that the presence of an LSAT is sufficient warrant for a school to put racial minorities into a separate class in order better to probe their capacities and potentials." Testing officials, law school deans invested in an LSAT-dominated definition of "merit," and affirmative action critics were all troubled when Douglas opined, "The key to the problem is consideration of such applications in a racially neutral way. Abolition of the LSAT would be a good start."

When Allan Bakke's challenge to the affirmative action program at the University of California (UC) Davis Medical School reached the U.S. Supreme Court in the 1977-1978 term, public attention reached new levels. Regents of the University of California v. Bakke spurred nearly twice as many amici curiae briefs as DeFunis. In Bakke, Justice Powell provided the crucial swing vote for two divergent majority rulings. The conservative wing of the Court and Powell struck down the affirmative action program at the UC Davis Medical School, ruling that having a dual track admissions plan with a predetermined number of places reserved for minorities violated the Equal Protection Clause. The liberal wing of the Court and Powell held that race could be used as a plus factor in higher education admissions decisions. Federal courts today are quite divided on the question of whether a key portion of Justice Powell's opinion--in which he wrote that racially diverse learning environments can enhance all students' educational experiences and therefore provide universities with a compelling interest in adopting race-conscious admissions--should be interpreted as part of the holding of the case.

A coalition of civil rights organizations and bar groups urged UC not to appeal Bakke because of the poor, compromised record in the case. These same groups later filed briefs asking the Supreme Court to deny UC's petition for certiorari. Progressive scholars were troubled by the posture of Bakke because it was not necessarily in UC's institutional best interest to make a full-throated defense of affirmative action. For example, UC had no stake in arguing that Bakke may have actually been denied admission because the dean could reserve seats for the relatives of wealthy donors or because age discrimination was pervasive at American medical schools at that time. (Bakke was thirty-two years old when he first applied and was rejected by all fourteen medical schools to which he applied, despite having significantly higher grades and MCAT scores than other Whites admitted to Davis and presumably many other medical schools.) UC also declined to present evidence that affirmative action as necessary to remedy its prior discrimination or to neutralize racial bias in admissions criteria like standardized tests, since such evidence might open the door to litigation from rejected minority applicants. Regarding standardized testing, Justice Powell noted that neither party had developed a record, but he opined that compensating for bias in testing and grades could conceivably justify race-sensitive admissions:

Racial classifications in admissions conceivably could serve a fifth purpose, one which petitioner does not articulate: fair appraisal of each individual's academic promise in the light of some cultural bias in grading or testing procedures. To the extent that race and ethnic background were considered only to the extent of curing established inaccuracies in predicting academic performance, it might be argued that there is no "preference" at all.

As for the effect of Bakke on law school admissions, Charts 2 and 3 indicate that Black, Chicano, and American Indian first-year enrollments at ABA law schools were flat in the mid- to late-1970s. In a major recent study of Bakke's impact on affirmative action in law and medical schools, Susan Welch and John Gruhl conclude that Bakke had the net effect of institutionalizing already established affirmative-action admission practices, rather than leading to a significant rise or drop in opportunities for African Americans and Latinos between the early 1970s and the late 1980s. Welch and Gruhl's study was based upon national medical applications and enrollments, law school enrollments, cross-sectional information on individual schools, and a 1989 survey of admissions officers. However, this important study included no information on law school applications or admissions decisions, and Welch and Gruhl's data on law school enrollments combined Blacks and Latinos. Their study was consistent with the results of Henry Ramsey's 1979 survey of 100 law schools, in which he found that 72% of law schools reportedly had affirmative action programs.

Whereas Welch and Gruhl's study was limited by the fact that it relied on survey data and limited admissions data, one goal of this Article is to analyze legal education opportunities for underrepresented minorities in the last quarter-century based upon comprehensive national admissions data. Analysis of relevant national admissions data supports Welch and Gruhl's central conclusion that Bakke did not change admissions practices. At the same time, however, it is also true that White applicants have been more likely to be admitted to law schools nationally than minority applicants.

Table 2 and Chart 5 display the available data collected by Law School Admission Council (LSAC) for virtually all African American, Chicano, and White applicants to ABA-approved law schools for the fall term from 1976 to 1979 and 1985. A crucial point is that while the unavailability of data makes it impossible to know whether Black and Chicano applicants had higher admissions rates than Whites at ABA law schools in the late 1960s or early 1970s, such was certainly not true by the 1975-1976 admissions cycle or thereafter. During the period shortly before and after Bakke, White applicants were substantially more likely to be admitted to ABA law schools than Blacks, Chicanos, or other minority applicants. Indeed, the highest acceptance rate for African Americans (55% in 1985) is still lower than the lowest acceptance rate for Whites (59% in 1976), and in each of the five years reported, the cumulative acceptance rate for African Americans is only about two-thirds of the White acceptance rate.

These findings contrast somewhat with Welch and Gruhl's medical school admissions data. At medical schools in 1976, the ratio of the Black acceptance rate to the White acceptance rate was about 1.05, meaning that African Americans were equally likely to be offered admission. Gradually, the Black-White acceptance ratio declined and then hovered between 80 and .85 during the 1978-1985 period. By contrast, the law school data in Table 2 indicates that the Black-White acceptance ratio stayed in the . 66-.67 range from 1976 to 1979 and became only slightly more equitable (.70) in 1985 when the national applicant pool decreased.

While the Chicano category in Table 2 and Chart 5 is not entirely comparable to Welch and Gruhl's data on Hispanics, a review of these data sources still suggests that Chicanos applying to law school fared relatively worse off vis- à-vis Whites than those applying to medical school. At American medical schools, the Hispanic-White acceptance ratios ranged from 1.2 to 1.05 for the 1975-1985 span. By contrast, the Chicano-White acceptance ratios for ABA law schools climbed from .80 in 1976 to .89 in 1979, and were at .85 in 1985.

Another noteworthy fact is that nearly two-thirds of Chicano law students in the late 1970s were enrolled in California, Texas, and New Mexico. Public law schools in these states were a particularly important gateway of opportunity. In 1978, the top five feeder law schools for Chicanos were the University of Texas (164 enrolled students), UCLA (96), University of New Mexico (83), UC Hastings (78), and Boalt Hall (73). For reasons that will become apparent in Part VI, the fact that so many Chicano law students came from California and Texas had troubling consequences when affirmative action was banned in those states.

In its influential Bakke amicus brief, LSAC acknowledged the admissions disparities favoring White applicants and cited these statistics as evidence that law schools were not admitting unqualified students of color:

Because minorities generally rank lower on these measures [LSAT and UGPA], for reasons evident from their previous educational experience, a somewhat disproportionate number of minority applicants just be rejected as having no reasonable chance of completing law school, so that to admit them would be a misallocation of resources, wasting a year of their lives and occupying a valuable law school seat. Accordingly, only 39% of black applicants to the nation's law schools were admitted to the class entering in 1976, in contrast with 59% of the white applicants.

LSAC's justification of the ABA admissions practices during the 1970s raises an important question: is the disparate impact of law school admissions standards in the Bakke era primarily attributable to the screening out of students of color whose inadequate educational achievement indicated they had little realistic hope of completing their legal studies?

Contrary to LSAC's assurances, Table 3 and Chart 6--which display national admissions rates for all ABA applicants with UGPAs of 3.25 or higher--suggest that by the mid-1970s, law schools were disproportionately turning away high- achieving African Americans. Combined data from 1976 to 1979 and 1985 reveal that 26% of African Americans with 3.25+ UGPAs were denied admission from every ABA law school to which they applied, compared to 14% of Chicanos and 15% of Whites. moreover, these results are not an artifact of group differences in the distribution of applicants with 3.25- 4.0 UGPAs. More detailed data from 1976 and 1985 indicate that White Applicants consistently had higher admissions rates than African Americans among those with 3.75+ UGPAs, 3.5-3.74 UGPAs, 3.25-3.49 UGPAs, and so forth. Since this pattern occurred at a time when nearly all American law schools practiced affirmative action to some extent, the depressed admissions rates for African American "high achievers" is most likely attributable to law schools giving the greatest weight to precisely the criterion that disadvantages students of color most: the LSAT.

This conclusion is consistent with the finding that in the 1970s, African American law students were disproportionately clustered in a few dozen ABA law schools and that Chicanos were disproportionately clustered in public law schools in the Southwest. While these few schools practiced energetic affirmative action in the 1970s, a much larger number of law schools had more modest affirmative action programs that were overshadowed by the disparate impact of an LSAT-driven definition of merit. Therefore, while affirmative action critics charged that law schools had become havens of widespread "reverse discrimination," the actual national admissions practices that were locked in by the mid-1970s and which were further institutionalized by Bakke significantly favored Whites.

Legal Education Before Affirmative Action
The Rise of Affirmative Action
The Rise of the LSAT
Stalled Progress
The Fall of Affirmative Action
Contemporary Admission Environment

Last Updated: Wednesday, March 24, 2004  
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