I Can Still Hear You Saying You Would Never Break the Chain: How Higher Education Admissions Policies Put Law Firms at Risk of Losing Corporate Clients

• Publication year: 2022

I Can Still Hear You Saying You Would Never Break the Chain: How Higher Education Admissions Policies Put Law Firms at Risk of Losing Corporate Clients

Jolie Abrams

I CAN STILL HEAR YOU SAYING YOU WOULD NEVER BREAK THE CHAIN: HOW HIGHER EDUCATION ADMISSIONS POLICIES PUT LAW FIRMS AT RISK OF LOSING CORPORATE CLIENTS

Jolie Abrams^*

Constitutional Law—The rich diversity at higher education institutions and the benefits that flow from that diversity will foster the tolerance, acceptance, and understanding that will ultimately make race-conscious admissions obsolete.

—Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.

Table of Contents

I. If Higher Education Institutions Abandon Affirmative-Action-Based Policies in Their Admissions Programs in Favor of Race-Neutral Policies, They Risk Creating A Pipeline That Directly Conflicts with Corporations' Diversity Requirements for Hiring Law Firms............................................57

A. Regents of the University of California v. Allan Bakke: The Supreme Court Held That, Even If Minority Groups Experience Benefits, A University May Not Use Race to Discriminate in Its Admissions Policies under The Fourteenth Amendment's Equal Protection Clause ........................................................................60
B. Fisher I: The Supreme Court Held that Courts Must Use Strict Scrutiny When It Reviews a University's Race-Based Admissions Process and Cannot Defer to How the University Considers Race to Promote Diversity................................................................... 62
C. Fisher II: The Supreme Court Held that Courts Must Review University's Race-Based Admissions Process under the Strict Scrutiny Standard....................................................................... 64

II. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.: Appellee Did Not Discriminate Against Asian-American Students Because (1) It Met Strict Scrutiny's Requirements; (2) It Did Not Engage in Impermissible Racial Balancing; and (3) It Adequately Considered Race-Neutral

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Alternatives before It Adopted Its Race-Conscious Admissions Policy............................................................................65

A. Procedural History..................................................................... 66
B. Findings of Fact ......................................................................... 67

1. Appellee's Interest in Diversity ............................................ 68
2. The Admissions Process ....................................................... 69

a. Admissions Office's Efforts to Obtain a Diverse Applicant Pool............................................................... 69
b. The Application.............................................................. 70

i. Alumni and Staff Interviews.................................... 70
ii. Application Review Process.................................... 71
iii. Appellee's Use of Race in Admissions .................... 72

3. Non-Statistical Evidence of Discrimination ......................... 73

a. Sparse Country .............................................................. 73
b. The OCR Report ............................................................ 74
c. More Recent Allegations of Stereotyping and Bias ....... 75

4. Statistical Analysis................................................................ 76
5. Race Neutral Alternatives..................................................... 76

C. Conclusions of Law .................................................................... 78

1. Overview............................................................................... 79
2. Appellee's Admissions Program and Strict Scrutiny ............ 81

a. Compelling Interest ....................................................... 82
b. Narrowly Tailored......................................................... 83

3. Summary............................................................................... 87

Conclusion...................................................................................................89

I. If Higher Education Institutions Abandon Affirmative-Action-Based Policies in Their Admissions Programs in Favor of Race-Neutral Policies, They Risk Creating A Pipeline That Directly Conflicts with Corporations' Diversity Requirements for Hiring Law Firms

While law firms attempt to increase their diversity numbers, they still fall short when it comes to achieving their desired level.¹ Often, they have trouble making "meaningful changes" to improve their equity and inclusion.² Moreover, this push to diversify intensifies "tokenism," which, unfortunately, alienates

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minority groups.³ one obvious reason that law firms rush their diversification is that corporations who seek to retain them demand diverse lawyers handling their accounts. This forces law firms to demonstrably prioritize diversity on paper over meaningful inclusion, which turns diversity into a meaningless quota.

What corporations fail to realize is that diversity does not start in the law firm. In fact, it does not even start in law schools. Diversity begins with higher education admissions processes. If the population of college graduates is not diverse, then the group of students who are eligible to apply to law school has an even smaller chance of achieving the desired diversity. From there, the group of students who graduate from law school graduate chooses to become practicing lawyers in a private practice law firm are similarly even less diverse. Law firms already have a small pool of applicants from whom they can hire, and the population gets less and less diverse at each fork in the proverbial path to these jobs. Thus, the diversity pipeline's implementation must start with the higher education institutions' admissions. Affirmative action is a component of these higher institutions' admissions policy to enable them to fairly assess prospective students.

There is a long history of juxtaposition between discrimination against minority groups—groups that, historically, would not have access to the opportunity at hand—and unfair advantages for white men.⁴ Therefore, unsurprisingly, affirmative action sits at the heart of many political controversies. Despite its importance, affirmative action does not have one clear-cut definition; rather, its definition depends on the discussion's general field.⁵ Its broad dictionary definition describes affirmative action as "[t]he practice of selecting people for jobs, college spots, and other important posts in part because some of their characteristics are consistent with those of a group that has historically been treated unfairly."⁶ Essentially, affirmative action is an amalgamation of government-mandated, government-approved, and private programs that use laws, policies, and practices to "end and correct the effects of a specific form of discrimination."⁷ These programs focus on granting special consideration to minority groups in education and employment. supporters

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argue that society needs affirmative action to fend off bias and prejudice against minority groups. Its opponents contend that affirmative action policies create reverse racism and favor one minority group over another. still, others believe that, while affirmative action was once necessary, it succeeded, so its policy is unnecessary today. Affirmative action really seeks to "tak[e] positive steps to end discrimination, to prevent its recurrence, and to create new opportunities that were previously denied" to minority groups.⁸

Affirmative action uses "good-faith efforts . . . to identify, select, and train potentially qualified minorities" and, thus, emphasizes "targeted goals" that address an institution's past discrimination.⁹ Its programs "encompass more than outreach and recruitment . . . and include efforts to prevent discrimination by eliminating barriers to equal . . . opportunity."¹⁰ For example, higher education institutions have admissions policies that seek to increase their populations' diversity. If higher education institutions abandon affirmative-action-based policies in their admissions programs in favor of race-neutral policies, they risk creating a student body (and, ultimately, a graduating class) that is demographically homogeneous. That necessarily results in a law school applicant pool that does not meet any diversity, inclusion, and equality goals. The inherent pipeline directly conflicts with corporations' diversity requirements for hiring law firms.

While I would like to say that these affirmative-action-based admissions policies are unnecessary, unfortunately, the discrimination that minority groups continue to face is too great to eliminate. We, as a society, need these policies to ensure that all students have access to the same opportunities. Without these admissions programs, a lack of diversity will flow from undergraduate classes to graduate classes, including law school classes, too, then, law firms. Law firms' lack of diversity will affect which corporations are willing to hire them because corporate clients demand diversity in the firms they retain.

First, this limited case Comment will address the three cases that provide guidelines to higher education institutions about how they may use race in their admissions processes: Regents of the University of California v. Allan Bakke; Fisher I; and Fisher II. Then, this Comment will discuss an ongoing case, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), 980 F.3d 157 (1st Cir. 2020), cert. granted.

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A. Regents of the University of California v. Allan Bakke: The Supreme Court Held That, Even If Minority Groups Experience Benefits, A University May Not Use Race to Discriminate in Its Admissions Policies under The Fourteenth Amendment's Equal Protection Clause

In Regents of the University of California v. Allan...