The Minority Student Dilemma

Workaround Solutions

Constrained by court decisions and ballot measures, public law schools have had to find new ways to boost their minority enrollment.
This article appears in Corporate Counsel, a publication of ALM Media Productions

March 01, 2012

Choosing the right law school can be a daunting task for any student, but for Bali Kumar, a black multiracial man from a working class background in New York City, the decision was even more difficult. He wanted a school that promised a good education and some financial help, while offering an inclusive environment where he would feel welcomed.
Kumar says that he found "the perfect fit" at the University of California at Berkeley School of Law. "I had a few schools competing for me, and they would increase their scholarships when the other schools would," Kumar explains. "Berkeley did not offer me the most money, actually, but they offered a competitive package, and the admissions office was very kind to me. I figured that if Berkeley would be so supportive during the application process, it would be a more supportive law school. Some other schools were more callous toward me, as if I was just another statistic."
Now in his second year at Berkeley, Kumar says he hopes to practice corporate law at a firm when he graduates. But right now he's focusing a lot of his efforts on helping other diverse students. He cofounded the Men of Color Alliance, handles alumni affairs for the Law Students of African Descent, and has served as treasurer for the Coalition for Diversity. As a member of so many different student groups, Kumar works closely with the administration to recruit more diverse candidates to Berkeley—staffing phone banks, hosting events, and leading one-on-one tours for those considering applying to or accepting spots at the school.
"At these events, admitted students get one-on-one face time with law students from diverse backgrounds," Kumar says. "We're allowed to be candid about things like the application process, financial aid, and life outcomes. One student who was in a similar situation to the one I had been in a year before asked me for advice. I spoke honestly about how I settled on Berkeley. Now he attends Berkeley."
Berkeley's recruitment of Kumar—and Kumar's help in Berkeley's latest recruiting efforts—is a dance that's being repeated at public law schools across the nation. Over the past three decades, a series of court decisions and ballot measures have restricted the ability of public schools to consider students' race or ethnicity in the admissions process. While the U.S. Supreme Court has outlawed outright quota systems, it still allows admissions officials to take race into account. However, schools in several states—including California—can't even do that, because voters have banned any kind of affirmative action by public institutions.
As a result, public law schools have had to get creative in order to up their enrollment of African American, Asian, Hispanic/Latino, Native American, and multiracial students. They've increased their outreach to minority groups and institutions in order to attract more applicants of color. They've focused on applicants' socioeconomic background—which is allowed by the Supreme Court—in order to increase the diversity of their student bodies. And they've tried to provide more support services for their minority students, both after admission and after graduation.
The extra efforts are necessary because racial and ethnic minorities continue to be underrepresented in law schools. At Berkeley, for example, the proportion of graduates who are minorities has averaged around 30 percent over the past five years. According to the 2010 census, about 60 percent of California's population is minority. That means that a nonwhite student in California today is half as likely to graduate from Berkeley as a white student.
Despite Berkeley's welcoming atmosphere and the presence of so many different student groups, Kumar says he can't help but notice the deficit in diversity at the school. "I'm the only black man in all five of my classes. A lot of people feel tokenized. There are also not that many faculty of color on campus, and it makes it harder to find a faculty member who can serve as a mentor, showing you how he or she got there."
And the problem that Berkeley faces is one that almost every law school in the country faces. According to the most recent statistics from the American Bar Association, minorities received 22.1 percent of all degrees awarded by U.S. law schools in 2009. By comparison, minorities made up about 36 percent of the total U.S. population in the 2010 census. (The peak year for minority law school graduates was 2007, when they made up 22.6 percent of all graduates.)
But different minority groups are having different experiences in law school. A few years ago, Columbia Law School professor Conrad Johnson did a longitudinal study for the Society of American Law Teachers (SALT) in which he tracked minority enrollment from 1993 to 2008. While the overall percentage of minority enrollment increased approximately 4 percent during that period, Johnson says that much of the gain was due to rising numbers of students who are Asian/Pacific Islanders or who are non-Mexican Latinos. Johnson's study found a 7.5 decrease in the proportional representation of African Americans, and an 11.7 decrease in the proportional representation of Mexican Americans.
The numbers have continued to get worse, Johnson adds. "Updating these figures to include first-year matriculation data from the class entering law school in 2009, we find a 9.9 percent decrease in the proportional representation of African Americans and a 26 percent decrease for Mexican Americans when compared with first-year law student matriculation numbers from 1993," he says.
Clearly, law schools have more work to do.
Affirmative action has been a controversial policy for decades, and the admissions process at public universities has been a particularly volatile flash point. The Supreme Court first tackled the issue in 1978 in Regents of the University of California v. Bakke , when it ruled that the admission process at the University of California at Davis School of Medicine was unconstitutional because 16 of 100 seats in each year's class were essentially reserved for African Americans.
But while public universities were barred from admitting students solely because of race, they were still allowed to take race into account. Racial preferences in the admissions process became the next point of contention, both at the ballot box and in the courtroom. In 1996 California voters became the first in the nation to enact an affirmative action ban. Proposition 209 amended the California state constitution to prohibit public institutions from using race, ethnicity, or gender as part of the admissions process. Two years later, Washington State voters passed a similar measure, Initiative 200.
The first successful court challenge to the use of affirmative action in the admissions process was Hopwood v. Texas . Though a trial judge approved the use of racial preferences by the University of Texas, the U.S. Court of Appeals for the Sixth Circuit disagreed and ruled in 1996 that UT's policy was unconstitutional. Two suits also challenged the use of racial preferences by the University of Michigan: Gratz v. Bollinger , which targeted the school's undergraduate admissions policy, and Grutter v. Bollinger , which attacked the use of racial preferences by the Michigan law school.
The Supreme Court chose to hear the Michigan cases, issuing twin rulings in 2003. In Grutter , a 5-to-4 majority ruled that public universities "could" take race into account as one of many components when looking at a student's overall background and qualifications. (The Supreme Court ruling in Grutter abrogated the Fifth Circuit ruling in Hopwood .) But in Gratz , the high court ruled 6 to 3 that race could not be "a decisive factor."
While the Supreme Court gave public universities a clear green light to consider race in the admissions process, it has not had the positive effect on diversity that many expected. "When, in Grutter , the Supreme Court found that increasing diversity was a compelling interest, the logical conclusion was that the numbers would increase," Columbia's Johnson says. "But in fact, things have gotten worse for African Americans and Mexican Americans."
There's also been a backlash against Grutter in several states. In 2006 Michigan voters approved Proposal 2, which prohibits preferential treatment from being given to minorities in colleges, jobs, and publicly funded institutions. Nebraska and Arizona have passed similar measures, and there's an anti–affirmative action initiative on the ballot this year in Oklahoma.
Another legal challenge to the use of racial preferences by the University of Texas is also winding its way through the courts. In Fisher v. Texas , a white student argued that she was denied admission to UT because of her race. The case has been appealed to the Supreme Court. "If the Court takes the case, the conservative majority will likely rule against the university," says Richard Kahlenberg, a senior fellow at The Century Foundation in Washington, D.C., a progressive public policy research organization.
According to Kahlenberg, "The Supreme Court is likely to point out that the University of Texas was able to achieve sufficient racial diversity without using race during the time period between 1996, when the Fifth Circuit outlawed the use of race, and 2003, when the Supreme Court validated it." Kahlenberg adds, "During that period, the state provided a preference to economically disadvantaged students of all races and automatically admitted all students who were in the top 10 percent of their high school class. The Court may rule that Texas's decision to reinsert the use of race is illegal."
University officials have also received conflicting instructions from the federal government. In 2008 the Bush administration issued guidelines that warned colleges and universities against considering race at all. But late last year the Obama administration issued new guidelines that suggest that institutions look at other criteria like socioeconomic factors and hardships that could be indicative of diverse backgrounds. While the Bush administration's letter said that "quotas are impermissible," the 2011 version says that "an institution may permissibly aim to achieve a critical mass of underrepresented students."
The passage of Proposition 209 in California had an immediate negative impact on the Berkeley law school. "Prior to Proposition 209, we reserved seats for special consideration for minority status," says dean of admissions Edward Tom. "We had just one African American student the following year." According to Tom, "Proposition 209 sent a message to the community that the UC system did not want diverse students, and it has taken a lot of work and time to overcome the effect."
Berkeley has had to find other ways to regrow its diversity, Tom says: "We have changed the process to include a holistic approach that looks at a student's academic record, taking into account the rigor of the classes, LSAT score, as well as subjective criteria like what kind of voice will the applicant bring to our campus, and what do the letters of recommendation say about this applicant."
Tom adds that the school has increased the length of a student's personal statement so the candidate can better articulate his or her voice. Plus, educators participate in numerous pipeline and mentoring programs at high schools and undergraduate institutions designed to attract more diverse students to the campus.
"We send letters to all potential applicants inviting them to visit the campus, and we work with our affinity groups in the recruiting process," Tom says. "We also use social media like Facebook and Twitter to send out positive messages to the community about our school. We hold an Admit Day once a year, where our student organizations have activities and programs for newly admitted students to encourage them to come to Berkeley." The school also offers financial assistance programs to those who qualify, and runs a mentorship program that pairs new and upper-level students.
Unlike Berkeley, the Gould School of Law at the University of Southern California in Los Angeles is free to follow the guidelines laid out in Grutter because it is a private school. According to dean of admissions Chloe Reid, having this barrier lifted has made it easier to bring in a diverse student body: "We ask students to voluntarily divulge their ethnicity, and if they choose to do so, we are able to discuss how their background might relate to the admissions process."
The school makes it a point to recruit at fairs sponsored by the Law School Admission Council as well as those at historically black and Hispanic universities. "We try and identify who the influencers are for students of color, since that is who they are more likely to go to for the information. Sometimes this will be a person who is acting as an informal prelaw adviser."
USC's efforts have paid off—an average of 41 percent of its graduates have been minorities over the past five years. But because its goal is to represent the community in which the school is located, Reid says the lower numbers of African American and Mexican American students entering law school is of particular concern. "Both groups are a large part of our community, yet they make up a very small part of the legal community, so we shine the spotlight on these applicants a bit more than others. We ask our diverse faculty members, alumni, and student organizations to help us with this process. Applicants can often speak more candidly with these groups and may not be afraid to ask the difficult questions, such as 'I am an African American homosexual, what can I truly expect on campus?' "
Reid says merely reaching out to diverse students will have no effect if these students do not find an atmosphere on campus that is inclusive, including an adequate number of diverse faculty members whom students can enlist as mentors. "Students want to know that the person standing at the podium understands their experiences, and why they are different from others. I remember all too well being in law school, and being one of two African Americans in my constitutional law class. It makes you feel as though it is your responsibility to speak up for the whole race. "
In Washington state, Initiative 200 "severely impacted our enrollment," says University of Washington School of Law assistant professor William Covington. "Once upon a time, black and brown students made up close to 20 percent of the student body. Now we have about 12 African Americans and 25 Hispanics." Over the past five years, minorities have averaged 20 percent of the school's graduates. By comparison, 28 percent of Washington's population is minority.
About four years ago, the school started the Dean's Advisory Committee on Diversity in an effort to improve the numbers as well as create "an open, inclusive school climate" that offers support to underrepresented groups of all types, including students of color, LGBT students, and those with disabilities.
Second-year law student Bryson Davis is currently student cochair of the Committee on Diversity. Born in North Carolina of mixed-race parents and then adopted by white parents, Davis says that he chose to study law at Washington because he wanted to practice eventually in the Northwest. According to Davis, the diversity committee has been broken into subcommittees designed to address some of the more pressing issues. "We have a curriculum subcommittee that is looking at diversity issues in the classroom," says Davis. "For example, if racial statistics are discussed in criminal law showing that there are more black males incarcerated than white males, we want to make sure the discussion is facilitated appropriately so things do not get out of hand."
Davis adds: "We also have an environment subcommittee. It deals with the overall physical and social environment of the school. For example, there is a controversy about pictures of past presidents and professors who are all white, and the environment subcommittee is trying to decide if this needs to be changed and what changes should be made."
Seeing all the white faces on the wall, Davis says, lets him know how difficult it was for minorities to progress in the legal community. However, he says, it also sends the message "that the school is holding too firmly to that past reality. I believe that in order for the school to have a strong presence in the legal community, it must be evolving with or ahead of the curve. Those pictures did not send that message to me."
The law school at the University of Texas was barred from using racial preferences during the time that Hopwood was the legal standard for the Fifth Circuit, but it was freed from admission restrictions as a result of Grutter . "Historically we have looked at a host of factors," says Monica Ingram, assistant dean for admission and financial aid. "There were no placement guarantees, so the number of diverse candidates varied each year. Now ethnicity and/or race are additional factors that we can consider, especially in terms of how cultural background has shaped a student's educational, professional, and personal experiences."
Texas also participates in a number of pipeline programs designed to attract diverse high school and college students, recruiting at historically black colleges, and enlisting the help of the various affinity groups and alumni to bring in qualified candidates and encourage them to choose the university. "We have academic assistance programs that are open to all students, as well as programs that help students transition to law school life," says Ingram. "Our society program provides law faculty advisers and upper-level student mentors to our entering students."
Javier Perez-Afanador, president of the Chicano/Hispanic Law Students' Association at the Texas law school, says his organization works closely with the admissions office, calling prospective students and explaining the various support systems that are available to Hispanics on campus, and encouraging students to join the association. "Having an organization that provided the support that I needed was a huge draw for me, and I believe it is for others as well," he says.
While Perez-Afanador says he feels very welcome on campus, he still notices the racial disparity: "Our school is one of the better ones in terms of diversity. I have spoken to friends of mine at several private law schools, and the numbers seem to be worse." He adds, "One remaining issue is an achievement gap within the law school. Just last year we had the first Hispanic editor in chief of the law review, and our academic achievement is often below the average."
Over the past five years, minorities have averaged 31 percent of the school's graduates. Like California, Texas is a minority-majority state—about 55 percent of its population is Asian, black, Hispanic, or other ethnic minority. Ingram says, "I do think that our outreach is working, but it isn't always going to yield an increased numerical result." The challenge for Texas—and other public law schools—is how to improve their numbers over the long term.
Sherry Karabin
Corporate Counsel