Michigan Daily Op-Ed 1/15/01

The Fifty-Year Quest for Diversity in Legal Education

Jeffrey S. Lehman

The Michigan Daily, January 15, 2001

When the University of Michigan goes to court this week to defend its law school’s admissions policy, it will be writing the newest chapter in a history that goes back over fifty years.

A half century ago, the University of Texas was struggling to maintain its premiere law school as a segregated, all-white educational environment.  Lawsuits challenged those practices, and ultimately, in Sweatt v. Painter, the U.S. Supreme Court decided that they could not stand.  Speaking for a unanimous Court, Chief Justice Vinson emphasized the educational benefits of racial integration:

“The law school … cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.”

A quarter century later, most universities had come to share Chief Justice Vinson’s appreciation for how racial integration promotes “the interplay of ideas and the exchange of views.”  Recognizing that such integration would not happen to any pedagogically significant degree without “affirmative action,” the schools devised a variety of mechanisms to promote the presence of students from different racial, ethnic, and social backgrounds.  

In time, lawsuits challenged affirmative action as well, arguing that cases such as Sweatt and Brown v. Board of Education had created a standard of “strict colorblindness” in university admissions.  But in Regents v. Bakke, the U.S. Supreme Court rejected the “strict colorblindness” theory.  The five-justice majority (no, this was not Justice Powell speaking alone) declared:

“In enjoining petitioner from ever considering the race of any applicant…, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.”

Today, law schools continue to teach in ways that depend heavily on student participation, and that fact shapes the way selective law schools make admissions decisions.  At Michigan, for example, we can enroll only a few hundred first-year students each fall.  We reject most applicants, including many who might be fully capable of succeeding here.  To make admissions decisions, we follow a written policy that was adopted by the faculty in 1992.  (See http://www.umich.edu/~urel/admissions/faqs/).

That policy goes on trial this week.  The plaintiff, Barbara Grutter, was not admitted to this law school in 1997, when the entering class included 25 African Americans and 14 Latinos among a total class of 339.  Her lawyers allege that the admissions policy employs a “dual admissions system, that is, two different admissions standards, depending on the race of the applicant.”  

That allegation is wrong.  Our admissions policy considers race exactly in the way that the Supreme Court authorized it to be considered in Bakke.  The provisions of our admissions policy apply to all applicants, regardless of race.  

The Law School considers applicants’ grades, test scores, recommendations, and essays; we consider where and what they have studied; we consider every experience, tal