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

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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. SOC’Y 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.”).