Law Schools Weigh Value of Waiting Lists for Minorities

In reply to her application for admission to UC Berkeley’s law school, an Asian-American woman last spring received what she called a “weird” letter.

She was disappointed but not surprised, considering the fierce competition, to learn that she had not been accepted right away and had been put on a waiting list. What did disturb her, she recalled, was being told in the letter that she was on “the Asian waiting list.”

“You’d think the law school would have been more careful about saying that,” said the woman, who asked not to be identified because she never made it into the school and plans to reapply this year.

Her letter was not unique. UC Berkeley’s law school, known as Boalt Hall, has kept separate formal waiting lists for Asians, blacks, Latinos and American Indians for at least 12 years and has notified applicants about being on such a list. Boalt officials say the practice is an unusually candid yet legal attempt to help minorities gain seats in the incoming class; it does not signify a racial quota system, they insist.

Now, however, the law school may get rid of those lists.

“The separate waiting list issue is something we are re-examining, not because it’s been brought to our attention by any irate candidate but because we like to re-examine our policies every so often,” said Edward Tom, who became Boalt’s director of admissions and financial aid last year.

Recent allegations of bias against Asians at UC Berkeley’s undergraduate divisions also make this a good time to consider changing the waiting list policy at the law school, Tom said in response to an inquiry from The Times. He conceded that the waiting list letters might be easily misconstrued.

Boalt Prof. John Coons, who is chairman of the Admissions Committee, said he was not aware of the waiting list letters until a few days ago but said he expects the practice will be dropped this year for “cosmetic” reasons. The letters, Coons said, “are perhaps cosmetically upsetting to some people, and probably we were imprudent to use that particular practice.”

Disclose Race Voluntarily

But Coons and others suggested that there may be an element of hypocrisy in the complaints from minorities about the letters, because minority applicants who disclose their race do so voluntarily in hopes of being given special consideration. “It sounds like their gripe is that they didn’t get in,” said another Boalt professor who asked not to be identified.

Some experts on affirmative action law say the Boalt lists may violate the 1978 Bakke decision by the U.S. Supreme Court. That controversial ruling forbade specific racial quotas for admission at the UC Davis medical school but stated that race could be one of several considerations in admissions. As a result, the school enrolled Allan Bakke, a white student who had previously been rejected in favor of what he claimed were less qualified blacks.

‘Perfectly Sensible’

Coons insisted that the use of separate lists at Boalt does not violate the Bakke ruling. Nor would a decision to do away with the lists signify a retreat from affirmative action, he said. The waiting lists are “perfectly sensible” and are consistent with Boalt’s goal of having minorities make up about 25% of a class, he said.

According to Admissions Director Tom, Boalt’s current first-year class of 258 students includes 16 Asians, 19 blacks, 23 Latinos and three Native Americans.

In interviews, several legal educators across the country said they never heard of publicly acknowledged waiting lists separated by race, although they said that it is common practice to give qualified ethnic minorities an extra boost in admissions. They stressed that no quotas are kept, although most schools aim for such “goals” of minority representation because the legal profession is so overwhelmingly white.

‘Important Factor’

Betsy Levin, executive director of the Assn. of American Law Schools, said “most law schools look at what they can contribute to the legal education of the whole student body as well as to society.” At the University of Colorado’s law school, where she used to be dean, the admissions office treated ethnicity “as certainly an important factor but not the only one,” according to Levin.

At Stanford University’s law school, Admissions Director Dora Hjertberg said one waiting list is kept for all promising candidates who could not be accommodated in the first round. She said the school has an informal method of ensuring diversity. If, for example, a woman candidate who was accepted decides to attend another school, Stanford would probably seek to replace her with another woman; the same probably would be true in the case of black applicants, she said.

Similar Lists

Boalt’s previous admissions director, Beth O’Neil, is now executive director of the Law School Admission Council, a national organization. She said she believes that other schools keep similar racial lists. “They may not be doing it in as public a way and may not be telling you that they are doing it,” O’Neil said.

Without such lists, she said, it would be difficult to achieve ethnic diversity just by ranking waiting-list candidates by test scores and undergraduate grades. (Blacks and Latinos, as a group, tend to score lower than whites on law school admissions tests.)

According to O’Neil, Boalt never received a complaint about the letters in the 12 years she was an administrator there.

But even if the separate waiting lists are legal and well-intentioned, they make some people uneasy, according to Henry Der, executive director of Chinese for Affirmative Action, an organization that has been active in investigating claims of anti-Asian bias in the UC system. “What it does is cause a lot of resentment and suspicion,” Der said. “People wonder if it becomes an upper ceiling against us.”

‘Quota Mentality’

John H. Bunzel, a senior research fellow at Stanford University’s Hoover Institution who writes about affirmative action from a conservative viewpoint, agreed. “This comes awfully close to smacking of a quota mentality, and calling it a goal doesn’t diminish it. Why not call it a quola ?” said Bunzel, who was a member of the U.S. Civil Rights Commission in the Ronald Reagan Administration.

The Times was given a copy of one of the letters by Los Angeles attorney Richard M. Mosk, who is acquainted with the applicant who received it. Mosk is the son of state Supreme Court Justice Stanley Mosk, who wrote the 1976 California ruling ordering Bakke’s admission to medical school--which the federal court upheld. Richard Mosk said he has not discussed the Boalt practice with his father.

Admissions Vary

Because of its distinguished reputation and relatively low tuition, Boalt always draws far more applicants than it can accept. About 15% of the 5,300 applicants last year were offered admission and about 40% of those accepted enrolled. Candidates on waiting lists hope that somebody accepted in the first round will decide to attend another school. The number of candidates from the waiting list who eventually get admitted to Boalt varies from year to year, according to Tom.

Whites are not told that they are on an ethnic list, just that they are on a list for either California residents or out-of-staters; because it is a state school, Boalt must not have more than a quarter of its class from outside California, Tom said.