EXPERT REPORT OF DEREK BOK

Grutter, et al. v. Bollinger, et al., No. 97-75928 (E.D. Mich.)

I.     Statement of Qualifications:

I am currently the 300th Anniversary University Professor at the John F. Kennedy School of Government at Harvard University. I served as President of Harvard University from 1971 until 1991, and as Dean of the Harvard Law School from 1968 to 1971. Before that, I was a member of the Harvard Law School faculty for 10 years. I have written extensively about issues of higher education and the consideration of race in admissions, as well as about issues relating to the American legal system. A complete curriculum vitae, including a list of publications, is attached hereto as Appendix A.

II.     Information Considered in Forming Opinions:

My opinions are based, in large part, on The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions, William G. Bowen and Derek Bok, Princeton University Press (1998). A copy of the book will be provided upon request. I have also relied upon Linda Wightman's study, The Threat To Diversity In Legal Education: An Empirical Analysis of the Consequences of Abandoning Race As A Factor In Law School Admissions Decisions, 72 N.Y.U. L. Rev. 1 (1997), a copy of which will also be provided upon request. I have also relied on the other published materials cited herein.

III.      Other expert testimony; compensation:

I have not testified as an expert, by deposition or at trial, within the preceding four years. I am not receiving any compensation for my work in connection with this matter.

IV.     Opinions to be expressed and the basis and reasons therefor:

In addressing a constitutional challenge to the admissions program at the Medical School at the University of California at Davis, the Supreme Court examined a university's interest in achieving diversity among its undergraduate student body -- a goal that Justice Powell described as "of paramount importance in the fulfillment of its mission." Bakke v. Regents of the University of California, 438 U.S. 265, 313 (1978). I agree, based on my own experience with both graduate and undergraduate education, that the value and importance of diversity in undergraduate education is closely related to its value and importance in many graduate and professional courses of study.

My experience in legal education leads me to conclude that a university's interest in achieving diversity among its student body attaches to legal education, in ways that are largely similar to, although in some ways different from, the interest in achieving diversity in an undergraduate student body. Thus, while many of the opinions expressed herein were formed in the context of my study of undergraduate education, my own experience in legal education -- as a professor of law and as Dean of the Harvard Law School -- confirms Justice Powell's belief that "even at the graduate level, our tradition and experience lend support to the view that the contribution of diversity is substantial." Id. at 314. Part A of this report accordingly focuses on the importance to higher education of achieving a diverse student body. Part B describes an empirical analysis of the consequences of abandoning race as a factor in law school admissions. Part C addresses the particular importance of diversity in the context of legal education, as the exclusive gateway to the American legal profession.

A. The Shape of the River.

Higher education plays a unique role in our society. The university's obligation runs to the students whom it is to educate, and to the society at large that it is to serve. There is no escaping a university's obligation to try to serve the long-term interests of society defined in the broadest and least parochial terms, and to do so through two principal activities: advancing knowledge and educating students who will in turn serve others, within this nation and beyond it, both through their specific vocations and as citizens. Universities, and in particular their law schools, are responsible for imparting civic and democratic values that are essential to the functioning of our nation.

Our society -- indeed, our world -- is and will be multi-racial. We simply must learn to work more effectively and more sensitively with individuals of other races, and a diverse student body can contribute directly to the achievement of this end. In the 1960s, barely one percent of law students and two percent of medical students in America were black. At that time, few leading professional schools and nationally prominent colleges and universities enrolled more than a handful of blacks. Late in the decade, however, selective institutions set about to change these statistics, not by establishing quotas, but by considering race, along with many other factors, in assembling a diverse student body of varying talents, backgrounds, and perspectives. Schools sought to achieve diversity to cross the racial borders that separated large segments of society and to reap the educational benefits to all students of learning on a diverse campus, in which they would transcend the misperceptions and stereotypes that had been born of racial separation. These selective institutions recognized that a student body containing many different backgrounds, talents, and experiences would be a richer environment in which all students could better develop into productive, contributing members of our society.

Amid much passionate debate, there has been little hard evidence of how these policies work and what their consequences have been. To remedy this deficiency, William Bowen and I examined the college experiences of more than 60,000 students -- approximately 3,500 of whom were black -- who had entered 28 selective colleges and universities in the fall of 1976 and the fall of 1989.(1) We also surveyed a sub-set of these students (with a survey response rate of about 80%) and thus studied the later life experiences and views of 30,000 students. This massive database, built jointly by the schools and the Andrew W. Mellon Foundation, for the first time links information such as Scholastic Assessment Test ("SAT") scores and college majors to experiences after college, including graduate and professional degrees, earnings, and civic involvement. Most of our study focused on African-Americans and whites, because the Latino and Native American populations at these schools were too small in 1976 to permit the same sort of statistical analysis. Nevertheless, many of the findings may be applicable to these groups as well. Our conclusions are set forth in The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions, William G. Bowen and Derek Bok, Princeton University Press (1998). This report attempts to summarize some of our findings. My testimony in this case will draw upon the book, as well as my 40 years of experience in academia, including my tenure as President of Harvard University and Dean of the Harvard Law School.

As a necessary predicate, it is important to recognize that a university should have the freedom to decide which students it will admit and which criteria it will use in its admissions decisions. This academic freedom is crucial in order for a school to fulfill its mission. At bottom, admissions officers must decide which set of applicants, considered individually and collectively, will take fullest advantage of what the college has to offer, contribute most to the educational process in college, and be most successful in using what they have learned for the benefit of the larger society.

Any college or university to which admissions is highly competitive, such as the University of Michigan Law School, has far more applicants who possess all the basic qualifications than it has places. Some candidates (a relatively small number) are so outstanding in every respect that they are obvious choices for admission by any standard. The real problems of choice arise in deciding which individuals to admit from among the large group who also have very strong qualifications, who are thought capable of doing the work and doing it well, but who are not so clearly outstanding as to be placed in the very top category.

In my experience, in deciding among this group, a school does not start from the premise that any applicant has a "right" to a place in a college or university. Instead, the starting premise is that a school has an obligation to make the best possible use of the limited number of places in each entering class so as to advance as effectively as possible the broad purposes the school seeks to serve. Within the very real limits imposed by the fallibility of any selection process of this kind, a school should try hard to be fair to every applicant; but the concept of fairness itself has to be understood within the context of the obligations of a university. Accordingly, in making these difficult choices among well-qualified candidates, considerations other than just test scores and grades come into play.

The relevance of these other considerations is based on the premise that the overall quality of the educational program is affected not only by the qualities of the individual students who are enrolled, but also by the characteristics of the entire group of students who share a common educational experience. This is certainly the case in the context of undergraduate education, which was the primary focus of our study. It is also likely to be true of most graduate programs -- especially in the context of legal education, in which the Socratic method, class discussion, informal study groups, and extracurricular clubs and activities tend to figure prominently.

A great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world. As a wise graduate of Princeton University observed in commenting on this aspect of the educational process, "People do not learn very much when they are surrounded only by the likes of themselves."

It follows that if, say, 2,000 individuals are to be offered places in an entering class, the task of an admissions office is not simply to decide which applicants offer the strongest credentials as separate candidates for the college; the task, rather, is to assemble a total class of students, all of whom will possess the basic qualifications, but who will also represent, in their totality, an interesting and diverse amalgam of individuals who will contribute through their diversity to the quality and vitality of the overall educational environment.

This concern for the composition of the student body, as well as for the qualifications of its individual members, takes many forms. While a college is of course interested in enrolling students who are good at a great many things and not one-dimensional in any sense, it should also try to enroll students with special interests and talents; it should seek a wide geographical representation; it should admit foreign students from a variety of countries and cultures; it should recognize the special contribution that the sons and daughters of alumni can make by representing and communicating a sense of the traditions and the historical continuity of the university; it should enroll students from a range of socioeconomic backgrounds; and it should work consciously and deliberately to include minority students, who themselves represent a variety of experiences and viewpoints. The precise contours of the institution's concern for the composition of the student body will of course vary. A liberal arts college, that views its mission as providing a well-rounded education for all of its students, may place greater emphasis on talents in the arts and athletics than may, for example, a graduate program in philosophy. In addition, the particular diversity characteristics that institutions choose to value will reflect the professional judgment, as well the academic values, of that institution.

We must accept as a fact of life in contemporary America that the perspectives of individuals are often affected by their race as by other aspects of their background. If a university were unable to take into account the race of candidates, it would be much more difficult to consider carefully and conscientiously the composition of an entering class that would offer a rich educational experience to all of its members. The unplanned, casual encounters with roommates, fellow sufferers in class, student workers in the library, teammates on a basketball squad, or other participants in class affairs or student government can be subtle and yet powerful sources of improved understanding and personal growth.

Indeed, the data in our study prove what I have observed for years through experience -- that diversity is valued and that "learning through diversity" actually occurs. Our study indicates that diversity is a benefit for all students, minorities and nonminorities alike. Moreover, the data overwhelmingly demonstrate that minority students admitted to selective schools had strong academic credentials, graduated in large numbers and did very well after leaving college. By every measure of success graduation, attainment of professional degrees, employment, earnings, civic participation, and overall satisfaction), the more selective the school, the more blacks achieved (holding constant their initial test scores and grades).

It is true that compared with their extremely high-achieving white classmates, black students in general received somewhat lower college grades and graduated at moderately lower rates. The reasons for these disparities are not fully understood, and selective institutions need to be more creative in helping improve black performance, as a few universities already have succeeded in doing. Still, 75 percent graduated within six years from the school they first entered, a figure well above the 40 percent of blacks and 59 percent of whites who graduated nationwide from the 305 Division I universities tracked by the National Collegiate Athletic Association. Moreover, blacks did not earn degrees from these selective schools by majoring in easy subjects. They chose substantially the same concentrations as whites and were just as likely to have difficult majors, such as those in the sciences and engineering. These and other findings refute the argument that when black students are admitted to schools where many other students have stronger academic qualifications than their own -- as measured by grades and test scores -- that those students not only will drop out, but that they would have been better off attending a less selective institution.

Although over half of the black students attending these selective schools would have been rejected under a race-neutral admissions regime -- that is, if only the same proportions of black and white students had been admitted within each SAT interval -- they have done exceedingly well after college. Fifty-six percent of the black graduates who had entered these selective schools in 1976 went on to earn advanced degrees. A remarkable 40 percent received either PhDs or professional degrees in the most sought-after fields of law, business and medicine, a figure slightly higher than that for their white classmates and five times higher than that for blacks with bachelor's degrees nationwide. (As a measure of change, it is worth noting that by 1995, 7.5 percent of all law students in the United States were black, up from barely 1 percent in 1960; and 8.1 percent of medical school students were black, compared with 2.2 percent in the mid-1960s. Black elected officials now number more than 8,600.)

By the time of our survey, black male graduates who had entered selective schools in 1976 were earning an average of $85,000 a year, 82 percent more than other black male college graduates nationwide. Their black female classmates earned 73 percent more than all black women with bachelor's degrees. Not only has the marketplace valued the work of these graduates highly, but the premium associated with attending one of these selective institutions was substantial. Overall, we found that among blacks with similar test scores, the more selective the college they attended, the more likely they were to graduate, earn advanced degrees and receive high salaries. This was generally true for whites as well.

Despite their high salaries, the blacks in our study were not just concerned with their own advancement. In virtually every type of civic activity, from social service organizations to parent associations, black men were more likely than their white classmates to hold leadership positions. Much the same pattern holds for women. These findings should reassure black intellectuals who have worried that blacks -- especially black men -- would ignore their social responsibilities once they achieved financial success.

Were black students demoralized by having to compete with whites with higher high school grades and test scores? Is it true, as Dinesh D'Souza asserts in his book "Illiberal Education," that "American universities are quite willing to sacrifice the future happiness of many young blacks and Hispanics to achieve diversity, proportional representation, and what they consider to be multicultural progress"? The facts are very clear on this point. Far from being demoralized, blacks from the most competitive schools are the most satisfied with their college experience. More than 90 percent of both blacks and whites in our survey said they were satisfied or very satisfied with their college experience, and blacks were even more inclined than whites to credit their undergraduate experience with helping them learn crucial skills. We found no evidence that significant numbers of blacks felt stigmatized by race-sensitive policies. Only seven percent of black graduates said they would not attend the same selective college if they had to choose again.

Former students of all races reported feeling that learning to live and work effectively with members of other races is important. Large majorities also believed that their college experience contributed a lot in this respect. Consequently, almost 80 percent of the white graduates favored either retaining the current emphasis on enrolling a diverse class or emphasizing it more. Their minority classmates supported these policies even more strongly.

Some critics allege that race-sensitive admissions policies aggravate racial tensions by creating resentment among white and Asian students rejected by colleges they hoped to attend. Although we could not test this possibility definitively, we did examine the feelings of white students in our sample who had been rejected by their first-choice school. They said they supported an emphasis on diversity just as strongly as students who got into their first-choice schools.

Our findings also clarify the much misunderstood concept of merit in college admission. Many people suppose that all students with especially high grades and test scores "deserve" to be admitted and that it is unfair to reject them in favor of minority applicants with lower grades and test scores. But selective colleges do not automatically offer admission as a reward for past performance to anyone. Nor should they. For any institution, choosing fairly, "on the merits," means selecting applicants by criteria that are reasonably related to the purposes of the organization. For colleges and universities, this means choosing academically qualified applicants who not only give promise of doing well academically, but who also can enlarge the understanding of other students and contribute after graduation to their professions and communities. Though clearly relevant, grades and test scores are by no means all that matter.

Accordingly, an admissions policy that relied primarily on test scores would lead to the rejection of qualified minority students. The fact that, nationally, blacks are very underrepresented at the higher levels and very overrepresented at the lower levels ensures that they will have substantially lower average SAT scores even if a college were to use precisely the same SAT cut-off in admitting white and black students. For example, if a school admitted every applicant with SAT scores over 1100 and none with lower scores, the white students would still have a higher average SAT score than the black students because relatively more of them score at the upper end of the SAT distribution. This result occurs even though no racial preference was given in this hypothetical situation.

As a group, however, the black applicants are highly qualified. Of the black applicants at five of the 28 schools for which detailed admission data were available in 1989, over 90 percent scored above the national average for black test-takers on both the verbal and math SATs, considered separately. The large majority of these black applicants handily outscored not only the average black test-taker, but also the average white test-taker. Moreover, the average SAT score for black matriculants in 1989 was slightly higher than the average SAT score for all matriculants in 1951.

Talk of basing admissions mainly on test scores and grades assumes a model of admissions radically different from the one that exists today. Such a policy would mandate a fundamental change of direction for institutions that recognize the many dimensions of "qualification": the importance of a good fit between the student and the educational program, the varied paths that individuals follow in developing their abilities, and the pitfalls of basing assessments of talent and potential solely on narrowly defined quantitative measures. Instead, as I described earlier, admissions officers have been "picking and choosing," as we believe they should always do -- admitting the candidate who seems to offer something special by way of drive and determination, the individual with a set of skills that matches well the academic requirements of the institution, someone who will bring another dimension of diversity to the student body, or a candidate who helps the institution fulfill a particular aspect of its mission.

Because other factors are important -- including hard-to-quantify attributes such as determination, motivation, creativity and character -- many talented students, white and black, are rejected even though they finished in the top 5 percent of their high school class. The applicants selected are students who were also above a high academic threshold but who seemed to have a greater chance of enhancing the education of their classmates and making a substantial contribution to their professions and society. Seen from the perspective of how well they served the missions of these educational institutions, the students admitted were surely "meritorious."

Race remains a significant factor in our society. Race almost always affects an individual's life experiences and perspectives, and thus a person's capacity to contribute to the kinds of learning through diversity that occur on campuses. Both the growing diversity of American society and the increasing interaction with other cultures worldwide make it evident that going to school with "the likes of oneself" will be increasingly anachronistic. The advantages of being able to understand how others think and function, to cope across racial divides, and to lead groups composed of diverse individuals are certain to increase. Moreover, our survey data throw new light on the extent of interaction occurring on campuses today and of how positively the great majority of students regard opportunities to learn from those with different points of view, backgrounds, and experiences.

In sum, the data indicate that there is a statistically significant association between attendance at the most selective institutions and a variety of accomplishments during college and in later life. If, at the end of the day, the question is whether the most selective colleges and universities have succeeded in both enhancing the learning experience for all students and ducating sizable numbers of minority students who have already achieved considerable success and seem likely in time to occupy positions of leadership throughout society, I have no problem in answering the question -- absolutely.

B. Consequences of Abandoning Race as a Factor In Law School Admissions.

Without the conscious consideration of race as a factor in admissions, America's most selective law schools would be unable to enroll more than a trivial number of students from underrepresented minority groups. Linda F. Wightman conducted an extensive empirical study of the consequences of abandoning race-sensitive admissions policies in law school admissions, the results of which are published at 72 N.Y.U. L. Rev. 1 (1997). I am familiar with this work, and relied, in part, on Wightman's conclusions in The Shape of the River. Wightman examined data obtained for 90,335 students who applied to law schools in 1990-1, each of whom completed the Law School Data Assembly Service; and from fall 1991 first-year law students. Of the total of 90,335 students applying in that year, 57 percent received at least one offer of admission. This total included 42,287 whites, 3,435 blacks (6.8 percent), and 2,326 Hispanics (4.6 percent). She found that:=20
  • A law school admissions policy that relied exclusively on undergraduate grades and LSAT scores would lead to a dramatic decrease in the number of minority applicants admitted to law school. For example, by employing a logistic regression model, Wightman found that of the 3,435 black applicants to law school in her study, only 711 (1.6 percent of the total students accepted) would have been admitted under a system that considered only grades and test scores. This is approximately the same number of black students who attended American law schools in 1965.
  • The model set out above described the results that would obtain assuming that the pattern of schools to which students would apply would not change under a regime that did not permit the consideration of race as a factor in admissions. Wightman also employed a more conservative methodology, calculating the number of minority students who would have been admitted to law school under the assumption that all minority applicants who could be admitted by any law school would enroll in the most selective institution to which they were admitted. She described this as the "law school grid model." Under this set of assumptions, 3.4 percent of the entering law students in 1991 would have been black. There is good reason to question whether minority students would, in fact, apply to and enroll in the less selective schools to which this model predicts they would have been admitted.
  • The "law school grid" model classified the ABA-approved law schools into six "clusters," ranked by selectivity. If the model were to hold, black enrollment in "Cluster 1," the most selective group of law schools (including the University of Michigan Law School), would fall to 0.4 percent.
  • Among the 711 black applicants whom Wightman's "law school grid" model predicts would have enrolled in ABA-approved schools, approximately 40 percent of those students would be admitted only to the least selective, "Cluster 6," law schools.
  • Wightman also examined whether it would be possible to obtain meaningful diversity if law schools were to rely on other factors, such as socioeconomic status, the selectivity of the degree-granting undergraduate institution, and undergraduate major. Her study indicated that none of these factors provide viable alternative means to achieve racial diversity without the conscious consideration of race.

C. The Special Importance of Diversity in the Context of Legal Education.

American law schools provide the only means of access to the American legal profession. Accordingly, the importance of obtaining diversity among law school student populations cannot responsibly be examined without considering what would happen to the legal profession if law schools were unable to enroll and graduate diverse classes of students, as well as what the legal profession itself is telling the academy about the importance and value of diversity to the profession.

Justice Powell noted in Bakke, 438 U.S. at 312, that "the nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples." This is certainly true of the nation's lawyers. This is not to say that minority lawyers are simply needed to serve minority populations. Rather, the future of the legal profession depends upon lawyers who are trained in racially diverse settings, who are comfortable working and interacting with clients with backgrounds, perspectives, and life experiences that are different from their own.

The law occupies a singular role in modern American society. Joseph Califano, in a recent speech, described the importance of the legal profession to American society:

[I]n a turbulent democracy, lawyers are key to nourishing freedom and protecting it when it is threatened. Lawyers bear responsibility to craft ways for individuals to perceive and receive justice in a society that threatens to swallow citizens in ever larger and more impersonal government, corporate and union bureaucracies. Lawyers are key to prosecuting criminals and protecting law abiding citizens.

Without lawyers, equal protection is a phrase carved on a federal building. Without lawyers, legal segregation would still be a way of life in the nation's capital.

* * *

Lawyers should be the most reliable life preservers for a people tossed in a sea of powerful government and private institutions, slammed by tidal waves of scientific discovery and technological revolution. That's why it's worth a herculean effort to rebuild the credibility, respect and integrity of the profession.

Quoted in Harry T. Edwards, A New Vision For The Legal Profession, 72 N.Y.U. L. Rev. 567, 576-77 (1997).

In addition the social importance of the law as an institution, those in legal education have long recognized that many law students will not spend their careers engaged in the active practice of law, but will otherwise go on to play important roles in public life, in the corporate world, and as opinion leaders. This has always been true in the United States. Of the 52 signers of the Declaration of Independence, 25 were lawyers. Geraldine R. Segal, Blacks in the Law: Philadelphia and the Nation xiv (Univ. Penn. 1983) ("Segal"). So too have been 26 of the nation's 42 presidents. Id. It is therefore not surprising that, in 1950, G.W. Johnston observed that "today's lawyers have a social responsibility to assume a position of leadership in the affairs of mankind," and argued that legal training must provide knowledge of "political, economic, social and human values." G.W. Johnston, Sociological and Non-Legal Courses, 23 Rocky Mt. L. Rev. 71-74 (1950).

At the time that Johnston wrote, of course, if law students were to learn "human values" in American law schools, they would by and large have been required to do so without the presence of minority students. It was not until the mid-1960s that American law schools classes contained more than a handful of minority students.

The first known black applicant to an American law school, John Mercer Langston (in 1850), was told that his application would be denied unless he agreed to "pass" as a Frenchman or a Spaniard. J. Clay Smith, Emanicpation: The Making of the Black Lawyer, 1844-1944 34 (Univ. Penn. 1993) ("Smith"). Langston was also told that if he were to enroll, he would need to sit apart from the class; ask no questions; and behave "quietly." Id. He declined the offer.

Harvard Law School admitted George Lewis Ruffin, the first black law student known to attend an American Law School, in 1868. Id. at 36; American Bar Association Report of the Task Force on Minorities in the Profession ("ABA Report") at 52. A number of years before Ruffin enrolled at Harvard, on the eve of the Civil War, Cornelius Conway Felton, the president of Harvard University, explained that bringing together a diverse group of students (though along a different axis of diversity) would well serve the national interest: enrolling students "from different and distant States must tend powerfully to remove prejudices, by bringing them into friendly relations . . . .[s]uch influences are especially needed in the present disastrous condition of public affairs." Harvard University, The President's Report, 1993-1995 at 3. So although Ruffin, "faced hostility from students who sought to exclude him from the student assembly," the "geographical diversity of the student body at Harvard prevailed over those who considered blacks inferior." Smith at 36.

"It was at the University of South Carolina and the University of Michigan that blacks were first admitted and graduated from publicly supported law schools." Id. at 35. The number of minorities in American law schools, aside from a few black law schools, remained quite low for almost a century -- through the early 1960s. In 1965, only about 700 of the nation's 65,000 law students, or about 1 percent, were black. Segal at 2.

As a natural result, the legal profession was largely closed to minorities until that time. Blacks were generally excluded from the ABA until 1943. Smith at 41. In 1951, the Association of American Law Schools adopted an "objective" of "equality of opportunity in legal education," AALS 1951 Proceedings (1952). But despite this "objective," in 1964 the AALS Committee on Racial Discrimination reported that "few Negroes make application, and of those who do apply only a handful are accepted." AALS 1964 Proceedings (1964). In 1959, G. Franklin Edwards commented that the "law has not been regarded as a desirable profession among members of the Negro group," and that it was seen as a "starvation profession." G. Franklin Edwards, The Negro Professional Class 135 (Free Press 1959). "Parents deliberately discouraged their children from entering the legal profession. They were skeptical of the black lawyers's ability to obtain justice in the courts; they realized that a large proportion of the black community chose white lawyers to represent them; and they knew that black lawyers frequently had to associate themselves with white lawyers and split fees if they wanted clients." Segal at 4.

The absence of meaningful minority participation in American law schools and in the legal profession was, by the mid-1960s, a matter of particular concern, as American law schools recognized from the advent of the "legal realist" school in the 1930s that "legal theory does not exist of and by itself in a vacuum," and that "rights and obligations are inseparable . . . from the people, properties and business which they affect." Arch M. Cantrall, Law Schools and the Layman: Is Legal Education Doing Its Job?, 38 A.B.A. J. 907 (1952). While American legal education has always encouraged what Justice Powell referred to as an "atmosphere of speculation, experiment and creation," Bakke, 438 U.S. at 312, until the mid 1960s the range of experience that could be drawn upon was far more limited than it is today.

The most persistent criticism of American legal education has been that it is too theoretical and abstract, divorced from the real problems of real people. Jerome Frank complained in 1950 that legal training paid insufficient attention to the "actual varied experiences" of practicing lawyers. Jerome Frank, Courts on Trial (1950). Despite the increased diversity in American law schools, a similar criticism is often heard today. Judge Harry Edwards of the D.C. Circuit, most notably, has recently attacked what he perceives as the disjunction between the doctrinal and theoretical focus of most American law schools, and the real world, nitty-gritty problems of clients seeking legal services. Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992); Symposium, Legal Education, 91 Mich. L. Rev. 1921.

There is some merit to these criticisms. At the same time, there is an important difference between the law schools of today and those of the 1950s -- the meaningful participation of a diverse group of students with varied life experiences. In today's law school, students' experiences with diversity -- in the classroom, in the study group, in the moot court competition and in various clinical programs -- clearly helps to provide the necessary training in the "real world" counseling and problem-solving skills that legal education might otherwise fail to provide. Indeed, some of these skills could not be learned in the absence of diverse educational settings.

The Supreme Court made this very point almost 50 years ago: "The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and exchange of views with which the law is concerned." Sweatt v. Painter, 339 U.S. 629, 634 (1950).

It is important to recognize that law schools have not arrogated to themselves the authority to determine that diversity is good for the legal profession. Those in legal education have come to recognize the classroom benefits of a diverse student body. That academic interest in diversity has coincided with the demand of the legal profession itself that law schools send out into the profession diverse classes of young lawyers. In February 1984, the American Bar Association (ABA) created a Task Force on Minorities in the Legal Profession. That task force, after noting that "the legal profession has remained a largely segregated institution," observed that "[n]o segment of society is so strategically positioned to attack minority problems as the legal profession," and that the profession therefore "has a duty to do so." That duty, the report declares, "arises out of the unique offices that lawyers hold as ministers of the law and guardians of its conscience, and as teachers and advocates of fairness and equality." ABA Report at 6. Both the ABA and the AALS now require, as part of the law school accreditation process, that schools pursue diversity among their student bodies. ABA Standard 211 requires law schools to demonstrate "a commitment to providing full opportunities for the study of law and entry into the profession by qualified members of groups, notably racial and ethnic minorities, which have been victims of discrimination in various forms." And AALS Bylaw Section 6-4 requires member schools to "seek to have a . . . student body [that is] diverse with respect to race, color, and sex."

The increased diversity in American law schools since the mid-1960s has had a profound effect on the profession. Census data indicates that there were 431 black lawyers in the United States in 1890. By 1940, the number stood at just over 1,200 -- 64 of whom practiced in the state of Michigan. Smith at 631-32. Since law schools began to implement race-conscious admissions policies in the mid-1960s, the number of minority lawyers has risen dramatically. Even so, by 1990 only 8 percent of the nation's lawyers, and 12 percent of the nation's law students, were members of minority groups (African Americans, Asian Americans, Hispanics and Native Americans), at a time when members of these minority groups made up nearly twenty-five percent of the nation's population. Deborah L. Rhode, Professional Responsibility 53-54 (1994).

Bar leaders and others in the legal profession report that the increased participation of minorities has brought with it greater public confidence in the fairness and integrity of the legal profession. When the Supreme Court wrote, in 1896, that "we think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment," Plessy v. Ferguson, 163 U.S. 537, 548 (1896), there were but a handful of minority lawyers in the nation. In that same period of time, the "nondiscriminatory policy of the University of Michigan Law School is apparently one of the reasons for the early entry of black lawyers into the profession in Michigan." Smith at 455. "As black lawyers began to graduate from the University of Michigan Law School, other lawyers appear to have migrated to the state," id. at 456, including David Augustus Straker, an 1872 graduate of Howard University Law School, who in 1890 won the first case ever argued by a black lawyer before the Michigan Supreme Court. Id. That case, Ferguson v. Gles, 46 N.W. 718 (Mich. 1890), decided six years before the Supreme Court decision in Plessy, secured public accommodations for blacks in Michigan. Segal at 149. Samuel E. McCargo, Emancipation in Michigan, 1985 Mich. Bar Journal 518 (1985).

The bar has made clear that it views the participation of minority attorneys as essential to public confidence in the machinery of justice. In 1989, for example, the Michigan Supreme Court Task Force on Racial/Ethnic Issues in the Courts concluded that the "presence of minorities in the [legal] profession increases public perception of fairness." If American law schools were precluded from considering race as a factor in admissions, this public perception, that the American legal system can be entrusted to provide equal justice under law, would be imperiled.

Note

(1) The 28 colleges and universities are: Barnard College, Bryn Mawr College, Columbia University, Denison College, Duke University, Emory University, Hamilton College, Kenyon College, Miami University (Ohio), Northwestern University, Oberlin College, Pennsylvania State University, Princeton University, Rich University, Smith College, Stanford University, Swarthmore College, Tufts University, Tulane University, Univeristy of Michigan at Ann Arbor, University of North Carolina at Chapel Hill, University of Pennsylvania, Vanderbilt University, Washington University, Wellesley College, Wesleyan University, Williams College, and Yale University.


"Compelling Need" Table of Contents


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