Affirmative Action Was a Success

These are challenging times for public law schools in California and Texas. In the past year, our affirmative action programs for attracting and educating minority students have been dismantled. These programs had enabled the University of Texas Law School to overcome a tragic legacy that, until 1950, intentionally excluded African Americans. Although no such discrimination had existed at the University of California, few minority students applied or were admitted to UC Berkeley before the late 1960s.

In the past 30 years, affirmative action programs have enabled us to recruit diverse student bodies that brought intellectual depth to our educational programs and produced leaders in the legal profession.

This year, we were forced to change our educational approach to conform to race-neutral requirements imposed in Texas by the U.S. 5th Circuit Court of Appeals’ Hopwood decision in 1996, and in California by a 1995 UC Regents’ resolution and subsequently by a 1996 statewide initiative banning affirmative action, which has just been affirmed by the state Supreme Court. Both schools have had to adopt race-neutral admissions policies, thus minimizing the opportunities for all students to benefit from the perspectives of society’s traditionally marginalized groups.

The substitution of race-neutral selection factors, such as socioeconomic class and disadvantage, produces a different student mix, one that is less reflective of racial conflicts in society that pose special challenges to the administration of justice. And as one law professor observed, “How can you teach Brown vs. Board of Education with no African American students in the classroom?”

In our first year of race-neutral admissions, both schools experienced a drop of 66% in the number of offers of admission to applicants from traditionally underrepresented groups. The successful applicants are excellent students also eagerly recruited by private law schools with enormous financial aid resources. As a result, of the 11 African Americans admitted at Texas, no more than four are expected to attend; at Berkeley, all 14 African Americans are going elsewhere, all but one to prestigious private schools.

Some argue that the numbers show that we have been admitting unqualified minority students. We strongly disagree. Law schools do not admit students only by their undergraduate grade point average and Law School Admissions Test scores. Because law students participate actively in their educational process, law schools seek an intellectually diverse class of students from different backgrounds who can challenge each other’s ideas. To achieve this mix, we and other law schools have looked beyond the numbers to an applicant’s background, educational and life experience, initiative, self-discipline, creativity, success in overcoming obstacles and future promise as a lawyer.

Our admissions policies utilizing affirmative action were strikingly successful. The experiences and perspectives of these talented minority students improved our schools. Many are now partners in law firms, directors of public interest firms’ law professors, judges and deans.

Some argue that it does not matter if these students are not admitted to Texas and Berkeley since they can go elsewhere. But public law schools have in the past served as gateways to the legal profession for students of merit drawn from all parts of our incredibly heterogeneous society. It is vital that major public law schools in other states continue to play this role in providing a first-rate legal education to a student body reflective of the society whose laws they will administer.

What can be done at our schools to continue to preserve diversity while complying with the new admissions policies? We are reviewing our admissions processes to see whether improvements are possible. Since we can no longer take race or ethnicity into account, we cannot in the short run hope to achieve the diversity that was once our hallmark. We can and will call upon the private sector for help. Private foundations have raised and awarded scholarships and financial aid to public law school students, and these programs must be pursued more aggressively.

For the future, we will work on outreach efforts designed to prepare traditionally underrepresented minority students to attend the university and aspire to become lawyers.

Ultimately, the issues we face are simply a reflection of the crossroads at which America now stands. This country’s past efforts to address racial inequalities have been discarded in the public institutions of our two states and face serious challenges nationwide. Americans must think carefully about the long-term implications of such change.