Minority Legal Issues

[lil_token]

Here's something I found on the NALPA site that looked interesting.  Feel free to add more articles and/or comments.







LSAC Brief in Grutter v. Bollinger
  

The Supreme Court has scheduled oral argument in the two affirmative action cases involving the admissions processes of the University of Michigan. The following is excerpted from the brief amicus curiae filed by the Law School Admission Council in support of the University of Michigan School of Law's admissions system. The case is Grutter v. Bollinger. The decision of the Sixth Circuit United States Court of Appeals, which is on appeal before the Supreme Court, is found in the Summer 2002 issue of NAPLA Notes XXIII (2002), 65-81. The Court's decision in the case will likely be announced in June.

11 BRIEF OF THE LAW SCHOOL ADMISSION COUNCIL AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS
This brief is submitted on behalf of the Law School Admission Council in support of respondents, with the written consent of the parties.

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12 SUMMARY OF ARGUMENT
The inescapable lesson of the statistical evidence compiled year after year by LSAC is that unless America's law schools are allowed to adopt race-conscious admissions policies, many of the nation's lawyers will be trained in an environment of racial homogeneity that bears almost no relation to the world in which they will work, and in which all of us live.

That lesson has not been lost on LSAC member law schools: the vast majority have long recognized and acted upon the need to take explicit measures to ensure racially diverse student bodies. The United States does not dispute the existence of the problem, and indeed carefully refrains from urging this Court to bar law schools from adopting admissions policies with the explicit goal of affecting the racial makeup of their student populations. Even the plaintiff in this case makes no effort to deny the dramatic decline in racial diversity in the nation's law schools that would follow if her position in this case prevails.

The simple, demonstrable statistical fact is that most selective law schools in this country will have almost no students of certain races unless they adopt admissions policies designed to alter that outcome. How best to achieve diversity in the face of this problem is a question of educational policy. For good reason, this Court generally defers to the judgments of the States and their expert educators on such questions. The entire premise of the United States' argument in this case, for instance, is that law schools like the University of Michigan

13 Law School ('Michigan Law School') can achieve racial diversity through 'efficacious' race-neutral means. But the first proposed alternative-that law schools could simply forgo reliance on grades and test scores-would have serious negative consequences for the quality of legal education that the United States fails to recognize. The second-that law schools adopt 'percent plans' like those used by some state undergraduate institutions-would be even more irresponsible as a matter of educational policy in the law school context. 'Percent plans' simply do not translate to the law school setting, where they would both fail to achieve diversity and succeed in undermining educational quality.

Far more modest than these proposed alternatives is the actual practice of Michigan Law School and the overwhelming majority of the nation's law schools: including race among the many factors considered in assembling a class rich in diversity, experience, and potential. This approach assigns to numeric measures the weight they most appropriately carry. High test scores and grades are not an entitlement to law-school admission. Such criteria assess acquired verbal reasoning skills and certain other cognitive skills, but-as the LSAC has long noted-they do not capture many other qualities important to success both in law school and in the legal profession. And they say nothing about the degree to which an applicant's personal attributes-including but certainly not limited to race-might affect the mix of backgrounds, experiences, and ideas from which all students can learn. LSAC believes that the best possible system of legal education requires both that law schools continue to include among their admissions criteria numeric measures of certain cognitive skills, and that all law schools be permitted to include race among the many other applicant attributes schools consider in assembling a class that will maximize the educational experience all students receive. Especially in the absence of any other educationally responsible approach to

14 attaining racial and ethnic diversity, LSAC believes the Michigan Law School policy must be upheld as a constitutionally legitimate means of providing students the uncontested educational benefits of such diversity.
In support of that view, LSAC offers the Court the benefit of decades of experience and accumulated knowledge of the law school admissions process: what LSAC knows about the effect of selective admissions policies on the racial diversity of student populations, and what LSAC knows about both the value and the limitations of performance measures such as the LSAT and undergraduate grades.

ARGUMENT
I. EDUCATION IN A RACIALLY DIVERSE ENVIRONMENT IMPROVES THE QUALITY OF EDUCATION FOR ALL STUDENTS
Racial and ethnic diversity in higher education is valuable not for its own sake, but because it contributes significantly to the overall quality of education afforded to all students. This insight, central to Justice Powell's opinion in Bakke, is as unassailable today as it was 25 years ago:

A great deal of learning occurs ... through interactions among students of both sexes[,] of different races, religions, and backgrounds ... who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world.

Regents of the University of California v. Bakke, 438 U.S. 265, 312-13 n.48 (1978) (internal quotation marks omitted).
Thanks in part to decades of empirical research, the educational value of diversity is now well understood and
15 widely acknowledged. Even the district court that invalidated Michigan's policy did not dispute that racial and ethnic diversity enhances the quality of education, see Grutter v. Bollinger, 137 F. Supp. 2d 821, 849-50 (E.D. Mich. 2001) ('The court does not doubt that racial diversity in the law school population may provide . . . educational and societal benefits. . . .

[lil_token]

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II. THIS COURT SHOULD NOT SECOND-GUESS THE UNIVERSITY'S EDUCATIONAL POLICY JUDGMENT ABOUT HOW BEST TO ACHIEVE A DIVERSE STUDENT BODY

Once it is established that the pursuit of racial and ethnic diversity in higher education is an important and legitimate goal-in that diversity enhances the quality of education for all students-the only question that remains is how to achieve such diversity. That is primarily a question of educational policy.

This Court has always been 'reluctan[t] to trench on the prerogatives of state and local educational institutions.' Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226 (1985). That reluctance is grounded both in federalism concerns and in a healthy awareness of limited judicial competence in university administration. . . .

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17 III. LAW SCHOOLS CANNOT ACHIEVE MEANINGFUL RACIAL DIVERSITY WITHOUT TAKING RACE INTO CONSIDERATION AS ONE OF MANY ADMISSIONS FACTORS

A. Minority Law School Applicants Are Significantly Underrepresented In The Highest Ranges Of Numeric Admissions Criteria

No nationally accredited law school in the United States is open to all who apply and can afford the tuition. Because of what society rightly expects and demands of its lawyers, law schools rightly expect and demand much of their students. To help them predict which applicants will be able to meet their expectations, law schools have for decades relied on two measures: undergraduate grade point average ('UGPA') and performance on the LSAT.

18 Such measures are valuable tools for admissions decision-makers, but they also create a potential problem: because applicants of certain minority races are significantly underrepresented in the highest UGPA/LSAT ranges, law schools that hope to draw students from those ranges will have very few minority applicants from which to choose. This does not mean that such minority applicants are less 'qualified' for admission; as we explain below, law schools do not make admissions decisions on the basis of numeric indicators alone. Instead they consider a broad range of attributes and factors that go into the formulation of an educationally optimal class. At the same time, however, most law schools seek students who excel in all areas, including the acquired verbal reasoning skills measured by the LSAT and the academic achievement reflected in undergraduate grades. Accordingly, law schools do place value on high grades and test scores. And minority applicants are much less likely than others in the general applicant pool to fall in the highest ranges of these numeric indicators.

The raw numbers are startling. For the fall 2002 entering class, there were a total of 4,461 law school applicants who had both LSAT scores of 165 or above and UGPA of 3.5 or above. Of that number, a total of just 29 were black. LSAC, National Decision Profiles, 2001-02. Only 114 were Hispanic. The numbers are consistent for preceding years: in 2001, just 24 black applicants had 3.5-plus UGPA and 165-plus LSAT, out of 3,724 total applicants in that range; in 2000, it was 26 out of 3,542; in 1999, 22 out of 3,475; in 1998, 24 out of 3,461. LSAC, National Statistical Report, 1996-97 through 2000-01 (lodged with the Clerk)3. For the

19 fall 1997 entering class, the year petitioner applied to Michigan Law School, there were 3,447 applicants nationwide in that range, a total of 17 of whom were black. Id. Some 2,999 applicants across the nation equaled or exceeded petitioner's 3.8 UGPA and 161 LSAT score, of whom 25 were black. Id.

The impact on law school admissions is obvious and inevitable. Of the thousands and thousands of applicants near the top of the LSAT and UGPA ranges-the pool from which the nation's more selective law schools primarily draw-there are only about 25 each year who are black. If admissions were based solely on the UGPA/LSAT index, then that number, dispersed evenly among the ten most selective schools, would leave fewer than three black students in each class-at institutions with class sizes ranging from 150 to 650. In reality, of course, the schools regarded as the most selective would likely attract most of those students, so that it would be mathematically impossible for many other selective law schools to enroll even one black student with numeric scores in the highest ranges. Accordingly, if a selective law school wants to admit a racially and ethnically diverse class, then it may be impossible for the school to limit itself to minority students whose grades and test scores are equal to those of other admitted applicants.

These statistics affect all of American legal education, not just the most highly selective law schools. Analysis of predicted admissions data for the 1990-91 and 2000-01 applicant pools under a hypothetical grades-and-scores-only approach demonstrates the broad effects of racial variances in the numeric criteria. For the 1990-91 applicant pool, as many as 90 percent of black applicants would not have been admitted to any nationally-accredited law school in the United States if grades and test scores were the sole admissions criteria. Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the

110 Consequences of Abandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. Rev. 1, 22 (1997). For the 2000-01 applicant pool, the acceptance rate for black applicants would have fallen by nearly 40 percent. Linda F. Wightman, The Consequences of Race-Blindness: Revisiting Prediction Models with Current Law School Data, forthcoming in J. Legal Educ., at 11 (2003).

The real-world consequences of these statistics were illustrated by the experience of law schools in Texas and California in the years immediately after affirmative action was prohibited in those states. In 1997, the first year Boalt Hall was legally barred from considering race, it enrolled no African-Americans-not one-and only seven Latino applicants. See Rachel F. Moran, Diversity and Its Discontents: The End of Affirmative Action at Boalt Hall, 88 Cal. L. Rev. 2241, 2247 (2000). At UCLA, African-American and Latino first-year enrollment totaled 64 in 1996, dropped to 49 in 1997, and stood at 21 in 2000. See Wightman, Consequences of Race-Blindness, supra, at 2-3 & n.8. In Texas, the results were similar. In the years just after University of Texas Law School was barred from taking race into account along with test scores and grades, African-American enrollment fell from 7 percent to 1.7 percent. See Clark Cunningham, Glenn Loury & John Skrentny, Using Social Science to Design Affirmative Action Programs, 90 Geo. L. J. 835, 855 (2002) (African-American enrollment was 7 percent in 1996 and 1.7 percent in 1999).

111 The statistical evidence establishes the basis for some form of affirmative action. No law school would adopt an admissions policy consciously designed to enhance racial and ethnic diversity if there were no need to do so. But the disproportionately low number of minority applicants in the highest UGPA/LSAT ranges means that while law schools can afford to be selective with respect to applicants in those ranges generally, they will have very few minority applicants from which to choose-and some law schools may have none. For many law schools, the only way to achieve racial diversity is to adopt some policy consciously designed to enhance the representation of minorities among the students they admit.

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3 There are more Hispanics in this UGPA/LSAT range each year, but not significantly more. In 2001 there were only 78 Hispanics in this range, including all of those who self-identified as Chicano/Mexican American, Hispanic/Latino, or Puerto Rican. In 2000, there were 83; in 1999, 91; in 1998, 82; and in 1997, 59.

 

[Burning Sands, Esq.]

I had no idea that the LSAC wrote a friend's brief for that case.  That is good f*ckin sh!t!!!!!!!  That just might be the best brief i've read, and one of the most persuasive arguments I've ever heard on the issue, and it comes from the authority on Law School Admissions.

Again, good sh!t.  I will be copying and pasting this to my fellow conservatives out there.

[Regal_Muse]

Good stuff lil_token.

[lil_token]

Kinda surprising, isn't it, Sands.  I was thinking LSAC, of all organizations, would fall on the other side.

On a seperate note, here is a symposium of interest for anyone who might be in the Inidana area in April:

http://taxprof.typepad.com/taxprof_blog/2005/02/indianablooming.html

[One Step Ahead]

Kinda surprising, isn't it, Sands.  I was thinking LSAC, of all organizations, would fall on the other side.

On a seperate note, here is a symposium of interest for anyone who might be in the Inidana area in April:

http://taxprof.typepad.com/taxprof_blog/2005/02/indianablooming.html

why would you think that?  in our society right now diversity is the mantra thus law schools would probably continue to look to alternatives to promote a diverse studentbody--and what is the key obstacle that tends to keep minorities from the top law school?  The LSAT.  Thus LSAC  knew that as a matter of self-preservation, affirmative action has to stay in business.  Look at all the changes the SAT is going through... 

[Burning Sands, Esq.]

Yeah but you gotta consider the gravity of that brief.  I agree with lil token, it only makes sense for LSAC to fall the other way on this issue.  I'm actually both impressed and shocked.  By saying what they said, they are basically acknowledging that there is more to law school admissions than the LSAT which they administer. 

They acknowledge that they are the gatekeepers to law school but even with that being said, they further acknowledge that their gate has flaws.  That's a very admirable approach. Very humble of LSAC to step off their high horse and admit that minority students who don't happen to have a 175 on their test are still QUALIFIED to attend the top schools because test scores are not an accurate indicator of success in law school (which a lot of kids on this board refuse to beleive despite even the test creators saying its true).

I think the most powerful statement from that brief is when they say that:
High test scores and grades are not an entitlement to law-school admission.

[One Step Ahead]

Yeah but you gotta consider the gravity of that brief.  I agree with lil token, it only makes sense for LSAC to fall the other way on this issue.  I'm actually both impressed and shocked.  By saying what they said, they are basically acknowledging that there is more to law school admissions than the LSAT which they administer. 

They acknowledge that they are the gatekeepers to law school but even with that being said, they further acknowledge that their gate has flaws.  That's a very admirable approach. Very humble of LSAC to step off their high horse and admit that minority students who don't happen to have a 175 on their test are still QUALIFIED to attend the top schools because test scores are not an accurate indicator of success in law school (which a lot of kids on this board refuse to beleive despite even the test creators saying its true).

I think the most powerful statement from that brief is when they say that:
High test scores and grades are not an entitlement to law-school admission.

I guess I am a cynic, but I still hold that LSAC saw the writing on the wall.  The SAT wrote a similar brief

[Burning Sands, Esq.]

i put this in the main board, figured i'd put it in here for th record:

McCLESKEY v. KEMP

SUPREME COURT OF THE UNITED STATES

481 U.S. 279 (1987)

In 1978, petitioner, a black man, was convicted in a Georgia trial court of armed robbery and murder, arising from the killing of a white police officer during the robbery of a store. Pursuant to Georgia statutes, the jury at the penalty hearing considered the mitigating and aggravating circumstances of petitioner's conduct and recommended the death penalty on the murder charge. The trial court followed the recommendation, and the Georgia Supreme Court affirmed. After unsuccessfully seeking postconviction relief in state courts, petitioner sought habeas corpus relief in Federal District Court. His petition included a claim that the Georgia capital sentencing process was administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments. In support of the claim, petitioner proffered a statistical study (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the murder victim's race and, to a lesser extent, the defendant's race. The study is based on over 2,000 murder cases that occurred in Georgia during the 1970's, and involves data relating to the victim's race, the defendant's race, and the various combinations of such persons' races. The study indicates that black defendants who killed white victims have the greatest likelihood of receiving the death penalty. Rejecting petitioner's constitutional claims, the court denied his petition insofar as it was based on the Baldus study, and the Court of Appeals affirmed the District Court's decision on this issue. It assumed the validity of the Baldus study but found the statistics insufficient to demonstrate unconstitutional discrimination in the Fourteenth Amendment context or to show irrationality, arbitrariness, and capriciousness under Eighth Amendment analysis.

...

Powell, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O'Connor, and Scalia, JJ., joined.

The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases.

...

Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims.  Similarly, Baldus found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims.

Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants. Thus, the Baldus study indicates that black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.

...

HELD:

Petitioner's claim, taken to its logical conclusion, throws into serious question the principles that underlie the entire criminal justice system. His claim easily could be extended to apply to other types of penalties and to claims based on unexplained discrepancies correlating to membership in other minority groups and even to gender. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. Petitioner's arguments are best presented to the legislative bodies, not the courts.

...

The Baldus study does not establish that the administration of the Georgia capital punishment system violates the Equal Protection Clause.

The Baldus study does not demonstrate that the Georgia capital sentencing system violates the Eighth Amendment.

McCleskey's conviction is affirmed.

[lil_token]

Thanks Sands!  That is my absilute favorite case.  I think it's a sad illustration of how the law can all too often value formalities over justice.  When taken in full, the opinion basically says that if McCleskey's lawyers focused on his own plight as a result of the discrimination in the administration of the death penalty rather than focusing on a prevailing trend, the conviction could have been overruled.  Let it be noted, however, that Powell, when asked upon his retirement which case he regretted most, answered, "McCleskey."  This is the Korematsu and Dred Scott of our time, folks.