Affirmative Inaction: A Quantitative Analysis of Progress Toward "Critical Mass" in U.S. Legal Education.

• Date: 01 March 2021
• Author: Lee, Loren M.
• Published date: 01 March 2021
• Author: Lee, Loren M.

Since 1978, the Supreme Court has recognized diversity as a compelling government interest to uphold the use of affirmative action in higher education. Yet the constitutionality of the practice has been challenged many times. In Grutter v. Bollinger, for example, the Court denied its use in perpetuity and suggested a twenty-five-year time limit for its application in law school admissions. Almost two decades have passed, so where do we stand? This Note's quantitative analysis of the matriculation of and degrees awarded to Black and Latinx students at twenty-nine accredited law schools across the United States illuminates a stark lack of progress toward critical mass since Grutter and reveals the continued need for affirmative action in law school admissions.

Table of Contents Introduction I. Historical Background of Affirmative Action II. Grutter: Eighteen Years Later III. Presentation of the Data: Has Representation Improved? A. Methodology B. National Trends C. Regional Trends 1. The West Region a. A Case Study: University of California, Berkeley 2. The Midwest Region a. A Case Study: University of Michigan 3. The Northeast Region 4. The Southwest Region 5. The Southeast Region D. Trends by Ranking IV. Reasonable Alternatives? Conclusion Introduction

[D]uring most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.

--Justice Thurgood Marshall (1)

Affirmative action has been a central issue in American jurisprudence for decades (2) and remains at the forefront of many legal and political conversations today. (3) The policy is designed to account for structural inequality that leads to fewer opportunities for groups that are marginalized on account of their race, color, religion, sex, or national origin. (4) "The purpose of affirmative action," as the Supreme Court has explained, "is not to make identified victims whole, but rather to dismantle prior patterns of ... discrimination and to prevent discrimination in the future." (5) Advocates of affirmative action argue that it is necessary to ensure racial and gender diversity in education, (6) while critics contend that it is unfair and perpetuates reverse discrimination, where more qualified candidates are passed over for diverse ones. (7)

The year 2021 marks eighteen years since the Court's decision in Grutter v. Bollinger, which upheld the use of affirmative action in higher education. (8) Writing for the majority, Justice Sandra Day O'Connor expected the policy to be unnecessary by 2028, twenty-five years later. (9) To justify her prediction, she cited the increasing "number of minority applicants with high grades and test scores" in the twenty-five years since Regents of the University of California v. Bakke, the Court's first foray into affirmative action. (10) But are law schools on track to fulfill her prophecy?

This Note analyzes the matriculation of and degrees awarded to Black (11) and Latinx (12) law students nationally, which calls into question the progress that American law schools have made post-Grutter. Because banning affirmative action has especially serious adverse impacts on Black and Latinx enrollment, (13) this Note focuses only on these two populations. (14) Although the most recent case against affirmative action was brought by Asian Americans who were denied admission to Harvard University, (15) this Note does not include analysis of Asian American students. (16) Black and Latinx students are more underrepresented in universities today than they were thirty-five years ago, (17) while Asian Americans students are richly represented on college and university campuses nationwide. (18)

Part I discusses the historical background of affirmative action. Part II examines Justice O'Connor's proposed time limit on affirmative action in Grutter. Part III provides an in-depth quantitative analysis of both matriculation of and degrees awarded to Black and Latinx students at twenty-nine accredited law schools across the nation from 2000 to 2019. The data set exposes the lack of progress law schools nationally have made toward diverse classrooms and courtrooms. Additionally, two case studies illuminate the consequences of overruling affirmative action at the state level, suggesting that even if critical mass is eventually attained, affirmative action is necessary to maintain classroom diversity.

1. Historical Background of Affirmative Action

   To understand the Supreme Court's ruling in Grutter, it is important to understand the Court's broader affirmative action jurisprudence. In Brown v. Board of Education, the Court deemed race discrimination against students in public education unconstitutional, ending "separate but equal" in education in 1954. (19) This landmark decision acknowledged the rights of African American students after four Black children were denied admission to all-white schools. (20) After a decade of lower courts failing to meaningfully desegregate schools on a case-by-case basis, (21) Congress continued the spirit of Brown when it enacted Title VI of the Civil Rights Act of 1964, which prohibits race discrimination by any program receiving federal financial assistance, including colleges and universities administering federally funded financial aid. (22) The prohibition of racial discrimination and the institution of affirmative action are each means to a similar end: reducing the force of systemic racial disparities that have hindered the advancement of Black Americans. (23)

   The Court's decision in Brown did not result in the immediate integration of schools. (24) The oppressive effects of decades of segregation at inferior schools shackled Black students' ability to gain admission to selective college and graduate programs. (25) In response, many universities began affirmative action programs. (26) The first affirmative action case to reach the Supreme Court was a challenge of one such program in 1974. The Court ultimately dismissed the case for mootness, suggesting the Court was interested in avoiding the question as long as possible. (27)

   Four years later, the Supreme Court issued its first ruling on a constitutional challenge to affirmative action in Bakke. (28) Allan Bakke, a white man, was twice denied admission to the Medical School of the University of California at Davis (29) The university's admissions policy reserved sixteen seats in each entering class of one hundred for "qualified minorities]," (30) a special program devised by the faculty to increase diversity. (31) White students were not considered for the sixteen reserved seats. (32) Bakke's qualifications, including college GPA and test scores, exceeded those of many minority students admitted in the two years that he was rejected. (33) Bakke challenged the constitutionality of the Medical School's special admission program, alleging it "operated to exclude him from the school on the basis of his race." (34)

   There was no single majority opinion in Bakke. Justice Lewis Powell joined Chief Justice Warren Burger and Justices Potter Stewart, William Rehnquist, and John Paul Stevens, holding that the use of formal racial quotas violates the Equal Protection Clause of the Fourteenth Amendment and further ordering Bakke to be admitted to the Medical School. (35) But Justice Powell also joined Justices William Brennan, Byron White, Thurgood Marshall, and Harry Blackmun, concluding that race can be used as one factor in admission, allowing the University to establish race-conscious programs in the future. (36) While strict racial quotas were struck down, Justice Powell stated that schools could consider race as a "plus" factor in admissions (37) but failed to define the precise meaning of the term.

   Bakke identified the educational value of diversity--not the remedial interest in correcting past injustices--as the legitimate government interest in affirmative action. (38) The decision emphasized that a diverse student body allows students to learn from each other's experiences and challenge each other's beliefs, cultivating a more intellectually stimulating environment and reducing the weight of stereotypes. (39) Justice Marshall, writing separately, refused to accept Justice Powell's justification for affirmative action, insisting that because "[t]he position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment. ... bringing the Negro into the mainstream of American life should be a state interest of the highest order." (40)

   Twenty-five years after Bakke, the Court granted certiorari in Gratz v. Bollinger and Grutter v. Bollinger, (41) In Gratz, two white Michigan residents who were denied admission to an undergraduate college at the University of Michigan challenged the constitutionality of the school's affirmative action policy. (42) The Court held that the undergraduate admission policy, which utilized a selection index that automatically favored minority applicants without individualized consideration, was unconstitutional. (43) In Grutter, Barbara Grutter, a white Michigan resident rejected from the University of Michigan Law School, brought a similar constitutional challenge to the Law School's admission policy. (44) The Court held that the Law School's admission policy, which utilized "a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment," was constitutional, affirming and further clarifying Bakke. (45)

   In Grutter, the Court again recognized diversity of the student body as a compelling interest justifying the use of race-conscious affirmative action programs. (46) In her majority opinion, Justice O'Connor cited a variety of...