Assessing the Viability of Race-Neutral Alternatives in Law School Admissions

Author:Eboni S. Nelson, Ronald Pitner, Carla D. Pratt
Position:Professor of Law, University of South Carolina School of Law. J.D., Harvard Law School; B.A., Wake Forest University/Distinguished Associate Professor in Social Work Research/Associate Dean for Academic Affairs and Educational Equity, Nancy J. LaMont Faculty Scholar and Professor of Law; Pennsylvania State University, Dickinson Law
Pages:2187-2234
SUMMARY

Over the past several years, law schools have experienced many challenges stemming from declines in student enrollment due to a shrinking applicant pool. The declining number of applicants is particularly problematic for law schools seeking to educate students in racially diverse learning environments. In light of recent challenges to the constitutionality of race-conscious affirmative action and the likelihood that President Donald Trump will make several appointments to the Supreme Court—thereby shifting its... (see full summary)

 
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2187
Assessing the Viability of
Race-Neutral Alternatives
in Law School Admissions
Eboni S. Nelson,* Ronald Pitner,** & Carla D. Pratt***
ABSTRACT: Over the past several years, law schools have experienced many
challenges stemming from declines in student enrollment due to a shrinking
applicant pool. The declining number of applicants is particularly
problematic for law schools seeking to educate students in racially diverse
* Professor of Law, University of South Carolina School of Law. J.D., Harvard Law School;
B.A., Wake Forest University. My thanks to Danielle Holley-Walker, Meera Deo, Verna Williams,
and Jeannine Bell for comments, suggestions, and discussion on this Article. Also, my thanks to
workshop participants at the Lutie A. Lytle Black Female Faculty Writing Workshop for helpful
discussion of some of the issues in this Article. I would also like to thank Chris Mathis, Carol
Young and Vanessa Byars for their invaluable research and administrative assistance. This Article
benefited greatly from the authors’ attendance at the George Mason Law & Economics Center
LEC Workshop for Law Professors on Empirical Methods; therefo re, we would like to thank
workshop participants and instructors, specifically Jonathan Klick, Eric Hellend and Bruce
Kobayashi. We also express our gratitude to the Access Group Center for Research & Policy
Analysis for providing grant funding to support this project. Finally, I thank Scott and Ella Nelson
for their love, patience, and support. This Article is dedicated to my grandmother, Martha Ann
Fowler, who always shared and rejoiced in my educational, professional, and persona l
achievements. May you find eternal rest in the loving arms of the Lord.
**
I. DeQuincey Newman Endowed Chair and Director of the I. DeQuincey Newman
Institute for Peace and Social Justice, Distinguished Associate Professor in Social Work Research;
College of Social Work; University of South Carolina. I would like to thank Access Group for
funding and supporting this research. I would also like to thank Elizabeth Thomas, Kyunghee
Ma, and Trang Nguyen who were graduate assistants in charge of data entry. Finally, I want to
thank the University of South Carolina’s College of Social Work for being supportive of faculty
who conduct transdisciplinary research designed to address social injustices. As an alumnus of
the University of Michigan, I dedicate this article to all universities who actively work to increase
the diversity of their student body population.
*** Associate Dean for Academic Affairs and Educational Equity, Nancy J. LaMont Faculty
Scholar and Professor of Law; Pennsylvania State University, Dickinson Law. I too would like t o
thank Access Group for the funding that supported the research that is the foundation for this
article and George Mason Law School for including us in their empirical methods workshop for
law professors with special thanks to Jonathan Klick, Eric Helland and Bruce Kobayashi. Many
thanks to my research assistants Olivia Phillips and Joslin Schultz for their able assistance in
conducting some of the research to support this article. I would also like to thank the supportive
community of Lutie A. Lytle scholars for their invitation to present this work when it was still in
the preliminary phase, with special thanks to Angela Onwuachi-Willig. Last, but not least, I thank
my now adult children Payton and Christopher Pratt for their enduring love and for their
understanding when Mom’s work intrudes on their time. Everything I do is for both of you.
2188 IOWA LAW REVIEW [Vol. 102:2187
learning environments. In light of recent challenges to the constitutionality of
race-conscious affirmative action and the likelihood that President Donald
Trump will make several appointments to the Supreme Court—thereby
shifting its balance toward the ideology of colorblindness—it is imperative to
engage in a project that examines the relationship between racial categories
and race-neutral identity factors in law-school admissions. Understanding
the relationship between racial groups and certain race-neutral identity
factors will help law schools comply with Fisher I’s mandate that universities
consider race-neutral means for achieving diversity before using race as a
factor in their admissions processes. Understanding this relationship will also
be useful for higher-education institutions seeking to enroll racially diverse
student bodies in jurisdictions that do not permit the consideration of race in
admissions, and may become necessary for all institutions if the Court
overrules the Fisher and Grutter decisions. Moreover, the data from this
study illuminates persisting structural inequalities for certain racial minority
groups and rebuts the assumption that those privileged enough to make it to
law school are insulated from the structural inequalities that race-conscious
affirmative action historically sought to address.
This empirical study surveyed first-year law students at public American Bar
Association approved law schools and asked them about race-neutral aspects
of their identity, such as family background and educational-institution
characteristics, to determine whether there is a relationship between their race
and certain socioeconomic identity factors. The findings will enhance law
schools’ understanding of race-neutral admissions factors that may contribute
to their abilities to assemble racially diverse student bodies, and will give them
tools to experiment with trying to yield racially diverse classes without asking
applicants about their race. Possessing such knowledge will greatly aid law
schools as they develop and implement admissions policies in their efforts to
provide greater access to students from backgrounds underrepresented in the
legal profession while also fulfilling their commitment to educate all law
students in a diverse learning environment.
I. INTRODUCTION ........................................................................... 2189
II. THE DIVERSITY DILEMMA IN LAW SCHOOLS AND THE LEGAL
PROFESSION ................................................................................ 2198
III. ACHIEVING DIVERSITY THEN AND NOW ...................................... 2202
A. THE BAKKE GUIDEPOST......................................................... 2202
B. THE DEMAND FOR MORE EXACTING SCRUTINY ....................... 2206
IV. EXPERIMENTING WITH RACE NEUTRALITY .................................. 2209
A. THE TEXAS TEN PERCENT PLAN AS A RACE-CONSCIOUS
MODEL OF RACE NEUTRALITY ................................................ 2209
A9_NELSON (DO NOT DELETE) 7/26/2017 12:01 AM
2017] RACE-NEUTRAL ALTERNATIVES 2189
B. USING RACE-NEUTRAL CRITERIA IN LAW-SCHOOL
ADMISSIONS TO ACHIEVE RACIAL DIVERSITY ........................... 2213
1. Law Schools Have a Unique Opportunity to
Experiment with Race Neutrality ............................... 2214
2. Study Design ................................................................ 2218
3. Data Collection ............................................................ 2222
4. Data Analysis ................................................................ 2223
V. FINDINGS ..................................................................................... 2225
VI. OBSERVATIONS ............................................................................ 2232
VII. CONCLUSION .............................................................................. 2233
I. INTRODUCTION
The past several years have been challenging for law schools because
many have experienced declines in student enrollment due to a shrinking
applicant pool.1 The declining number of applicants is particularly
problematic for law schools in their attempts to enroll sufficient numbers of
students to comprise incoming classes without sacrificing the numerical
academic credentials of matriculating students. One such challenge concerns
their efforts to educate students in racially diverse learning environments.2
For several decades, law schools have recognized and actively pursued the
educational and social benefits commonly associated with assembling racially
diverse student bodies.3 In their efforts to enroll diverse classes, they have
implemented strategies ranging from minority-targeted recruitment
1. See Ethan Bronner, Law Schools’ Applications Fall as Costs Rise and Jobs Are Cut, N.Y. TIMES
(Jan. 30, 2013), http://www.nytimes.com/2013/01/31/education/law-schools-applications-fall-as-
costs-rise-and-jobs-are-cut.html; Benjamin Wermund, Shrinking Applicant Pool Has Law Schools
Competing to Cut Costs, HOUS. CHRON. (June 1, 2014, 11:06 AM), http://www.houstonchronicle.
com/news/education/article/Shrinking-applicant-pool-has-law-schools-5519781.php.
2. See generally Aaron N. Taylor, Diversity as a Law School Survival Strategy, 59 ST. LOUIS U.
L.J. 321 (2015).
3. See David Kow, The (Un)compelling Interest for Underrepresented Minority Students: Enhanci ng
the Education of White Students Underexposed to Racial Diversity, 20 BERKELEY LA RAZA L.J. 157,
159–61 (2010) (discussing the University of Michigan Law School’s theory in Grutter v. Bollinger,
539 U.S. 306 (2003), that educational benefits from a diverse student body constituted a
compelling interest that met strict scrutiny); Eli Wald, A Primer on Diversity, Discrimination, and
Equality in the Legal Profession or Who is Responsible for Pursuing Diversity and Why, 24 GEO. J. LEGAL
ETHICS 1079, 1118 (2011) (discussing law schools that have made a commitment to “formal
diversity”); cf. Robert A. Sedler, Racial Preference in Law School Admissions: The Public Interest in a
Diverse Legal Profession, 1 J.L. SOCY 17, 18 (1999) (“When racially preferential law school
admissions policies were first adopted in the middle 1960s, the primary purpose for doing so was
not to attain a racially diverse student body in law schools, although the programs had this clearly
desirable educational effect.”).

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