Diversity Gives Depth to the Law

Paul Brest was dean of Stanford Law School from 1987 to 1999.

For well over a quarter of a century, law schools have been taking race into account in their admission of students in order to promote diversity. This winter, the U.S. Supreme Court will reconsider the 1978 decision that held that this practice was constitutional. As a former law school dean who saw the benefits of diversity firsthand, I fervently hope that the court will reaffirm this precedent. To do otherwise would compromise the core educational mission of American law schools.

American legal education is highly interactive, aimed at getting students to examine the law from all possible perspectives. This is accomplished by the professor's orchestration of students' discussions of legal precedents. Students are pressed to examine even well-settled cases with a skeptical eye. The process is designed to teach problem-solving skills and also to impart the critical stance characteristic of all good lawyers.

This method of education depends on students bringing a diversity of perspectives to the classroom.

Of course, a law student's race does not determine his or her point of view on issues of legal policy. As a professor, I encountered a range of viewpoints within every racial and ethnic group. But it is a fact that people of different races and ethnicities often have different experiences. For example, African Americans regularly encounter discrimination not experienced by whites. A recent New Yorker profile on National Security Advisor Condoleezza Rice describes a salesperson's assumption that, because she is black, Rice was interested only in costume jewelry rather than real gems.

By itself the incident was trivial. What's not trivial is African Americans' recurring experiences of being treated in a demeaning or discriminatory manner. Black students bring an important "reality check" to discussions of employment and housing discrimination and racial profiling by the police.

Because of their different experiences, policies that seem benign or neutral to whites may have a different meaning for the members of minority groups. And the salience of discriminatory acts may be different -- a factor that is relevant in the inevitable balancing of competing interests that courts perform.

While most white members of the Supreme Court understand the message conveyed by cross burning, reports of the recent oral argument in the cross-burning case suggest that the justices were given a new perspective after listening to Justice Clarence Thomas' passionate description from the bench.

To be sure, students can learn something of value simply by reading about Rice's or Thomas' experiences. But this is a poor substitute for face-to-face discussions in which students can directly engage their classmates, confront the meanings of such experiences and debate the legal policies that should respond to them.

Such discussions, inside and outside the classroom, gave rise to some of the most memorable times in my years as dean. At their best, they provided powerful educational moments for all involved. While minority students complained of the burden of constantly having to educate their white classmates, the minority students learned as well.

One vivid experience involved a yearlong debate about whether the university should punish so-called "hate speech." I don't know how many students changed their minds as they better appreciated both the psychic injuries of being the target of racial slurs and the importance of free expression in an academic community. But I do know that many students who started out with adamant convictions came to understand the other side and learned to deal constructively with disagreement about such a highly charged question.

Learning does not occur only through controversy. A class drawn from various backgrounds allows students to appreciate commonalities among their classmates as well as differences and to learn to communicate across racial boundaries. Such understandings are essential for lawyers, who will yield enormous power and play leadership roles in diverse political, civic and private organizations.

In an ideal world, the racial diversity necessary to educate tomorrow's lawyers would occur without having to take race into account in admitting a law school class. But an ideal world would not be heir to the legacies of prejudice and discrimination that continue today. Apart from its educational benefits, affirmative action in law school admissions has produced many highly successful minority lawyers and has noticeably desegregated the profession. It would be tragic if the court were to halt this "work in process" at a time when Americans of many persuasions appreciate both the progress that has been made to date and the unmet needs still before us.

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