Most of us undoubtedly are applauding the United States Supreme Court’s
recent decision in Grutter v. Bollinger,
which held in part that diversity is a compelling interest that can justify the
use of race as a factor in student admissions.
I join the chorus; it is abundantly clear to me that substantial
educational benefits are derived, both inside and outside of the classroom, from
a group of students with diverse backgrounds and characteristics.
I have a confession to make,
however. I was surprised, and
disappointed to some degree, by the extraordinary deference the Court granted to
the University of Michigan Law School, despite supposedly applying a strict
scrutiny standard to the law school’s admissions practices.
I am disappointed because I had hoped that a penetrating, critical
analysis by the Court in Grutter would force all of us to undertake a serious reexamination
of our admissions practices. Instead,
I fear that the Court’s decision will encourage many of us to continue to
conduct “business as usual” without taking advantage of the grand
opportunity provided by the
cases to reevaluate the means by which we select our students.
My fundamental concern relates to the persistent use in law schools
nationwide of “the numbers” – LSAT score and undergraduate GPA – as a
proxy for merit. The Supreme Court
’s assertion that it engaged in “a highly individualized, holistic review of
each applicant’s file.”
Yet the law school’s admissions policies explicitly stressed the
importance of the numbers in the applicant review process.
The policy at issue in Grutter
stated that the law school’s “most general measure” for selecting students
for admission “is a composite of an applicant’s LSAT score and undergraduate
grade point average (UGPA) (which we shall call the ‘index’).”
The policy continued, “Bluntly, the higher one’s index score, the
greater should be one’s chances of being admitted.
The lower the score, the greater the risk the candidate poses. . . . So
we expect the vast majority of those students we admit to have high index
That policy was supplemented by written guidance from the law school’s
admissions director, who stated that “we must begin with the numbers and go
forward from there” and “we will ultimately be swayed in any case by the
strength of the numbers so it makes sense to know what they are before one
proceeds to judge the rest of the file.”
The results of these admissions
practices made clear the predominance of the numbers in selecting any given
class. The district court judge who
reviewed the evidence in Grutter
concluded, after looking at grids of law school applicants and admission offers,
that “even a cursory review” of the grids revealed that an applicant’s
chances of being admitted increased “dramatically” as that applicant’s
numerical index score increased.
One certainly has to wonder, in light of such evidence, how
“holistic” the review of most
applicants was (and is).
, of course, is not unique in its approach to admissions.
I’m sure most of our law schools overemphasize numerical
“predictors.” We do so by
arraying our applicants in order by index score and, in many cases, by employing
“presumptive admits” and “presumptive denies” for applicants who fall
within certain ranges at the top and bottom of the applicant pool.
In other words, most of us rely on the numbers as heavily as
does, just at a different (lower) level.
We all know, however, that members
of underrepresented groups historically have underperformed on the LSAT in
comparison with white and Asian students. Justice
Thomas was correct in observing that “no modern law school can claim
ignorance” of that fact.
The same is true for undergraduate GPA’s.
We also know that the performance gap is attributable not to differences
in intelligence, work ethic, or ability to succeed in the legal profession, but
primarily to substantial disparities in educational opportunities.
As Justice Ginsburg observed in the Grutter
well-documented that conscious and unconscious race bias, even rank
discrimination based on race, remain alive in our land, impeding realization of
our highest values and ideals. As to
public education, data for the years 2000-2001 show that 71.6% of
African-American children and 76.3% of Hispanic children attended a school in
which minorities made up a majority of the student body.
And schools in predominantly minority communities lag far behind others
measured by the educational resources available to them.
However strong the public’s desire for improved educational systems may
be, it remains the current reality that many minority students encounter
inadequate and unequal educational opportunities.
court judge in Grutter made similar
observations in addressing the undergraduate GPA gap:
one must be cautious in making generalizations, the evidence at trial clearly
indicates that much of the GPA gap is due to the fact that disproportionate
numbers of Native Americans, African Americans, and Hispanics live and go to
school in impoverished areas of the country.
It should not surprise anyone that students who attend schools where
books are lacking, where classrooms are overcrowded, and where Advanced
Placement or other higher level courses are not offered are at a competitive
disadvantage as compared with students whose schools do not suffer from such
shortcomings. An educational deficit
in the K-12 years will, for most students, have a negative ripple effect on
academic performance in college.
Surely, then, there is something
troubling about law schools’ heavy reliance on index scores formulated from
LSAT scores and undergraduate GPA’s.
argued in Grutter that it had
to consider race in the admissions process because a critical mass of
underrepresented minority students simply “could not be enrolled if
admissions decisions were based primarily on undergraduate GPAs and LSAT
The logical response, of course, is why,
then, persist in using the same numerical formulas for most admissions
’s answer, if not particularly compelling, at least was straightforward:
we don’t want to abandon our “academic selectivity” and “become a
very different institution.”
Frankly, I was disappointed that the Grutter
majority accepted this answer uncritically:
decreasing the emphasis on the numbers “would require a dramatic
sacrifice of . . . the academic quality of all admitted students, . . .would
require the Law School to become a much different institution[, . . .and would]
forc[e] the Law School to abandon the academic selectivity that is the
cornerstone of its educational mission.”
Thus, the Court concluded, the
need not adopt alternatives to its standard admissions practices – its
current process is “narrowly tailored” enough.
In other words, the Court appears to have concurred in the notion that
“academic quality” can be equated with high “numbers.”
But are we as educators really convinced that the numbers make the
difference? Aren’t we all familiar
with many students who have performed
very well academically in law school – and many
graduates who have become superb members of the legal profession – despite low
Ironically, the Law School Admission Council (LSAC), the very body that
implements and administers the LSAT, has become one of the most vocal critics of
law schools’ overemphasis on the numbers.
Of course, such criticism poses no serious threat to the LSAC’s
monopoly on the type of “valid and reliable admission test” mandated by the
for accreditation of law schools.
Nonetheless, the LSAC has repeatedly expressed its concern regarding law
schools’ misuse of its test. Not
only has it issued “Cautionary Policies Concerning LSAT Scores and Related
but also it issued in December 1999 a remarkable publication designed to assist
law schools that were willing to experiment with alternative admissions models.
That publication, entitled “New Models to Assure Diversity, Fairness,
and Appropriate Test Use in Law School Admissions,” should be regular required
reading for all deans and admissions officials, but I’m afraid it may be
relegated to a back shelf after the
’s stamp of approval on
’s admissions process.
I don’t want to be misunderstood. As
I stated at the outset, I believe very strongly that diversity is a compelling
interest that supports the use of race as a factor in law school admissions.
I find particularly unconvincing those arguments that contend that
affirmative action programs rely on offensive stereotypes.
In Grutter’s brief before the Supreme Court, for example, her attorneys
argued that Michigan’s consideration of race “rest[s] on crude stereotypes:
The Law School assumes that students are particularly likely to have
experiences or perspectives important to the Law School’s mission merely
because of their membership in a particular racial or ethnic group.”
As a criminal procedure professor, I do not believe such an assumption is
misplaced at all. Indeed, issues
such as racial profiling, in relation to the government’s recent
anti-terrorism initiatives and in law enforcement generally, make it even more
important for our students to be exposed to the experiences and perspectives of
members of particular racial or ethnic groups.
The LSAC provides a good example
in its “New Models” publication:
Perspectives and prior experiences are key elements in this exchange of
ideas. For example, a discussion of
search-and-seizure law taught by a learned academic to a class of very bright,
upper-middle class students who grew up in white suburbs could be a very
engaging intellectual exercise. Consider,
however, the impact on that discussion of introducing into the class the
perspective of a student who, prior to law school, had spent ten years as a
police officer in a big city police department.
Add to that discussion the voices of inner city black males whose
personal histories might include being stopped for no apparent reason, and it
becomes more relevant and takes on a new dimension for every student in the
classroom. Law schools have long
recognized the value of all kinds of dynamic diversity within the educational
I submit that the black student
need not be from the inner city or come from an impoverished background to have
unique perspectives that would enhance the classroom discussion significantly.
And there are many similar examples, of course, in which the value of
such enhanced discussion does not rest on “crude stereotypes.”
Again, I do applaud the
’s recognition of diversity, including racial and ethnic diversity, as a
compelling state interest. Moreover,
as an educator, I am pleased that the Supreme Court deferred to the
’s judgment that “diversity is essential to its educational mission.”
Nonetheless, I find myself drawn to Justice Kennedy’s observation that
“[t]he Court confuses deference to a university’s definition of its
educational objective with deference to the implementation of this goal.”
I still find remarkable the Court’s cursory analysis of the “narrow
tailoring” prong of its strict scrutiny standard.
At one point it asserts that “[n]arrow tailoring does . . . require
serious, good faith consideration of workable race-neutral alternatives that
will achieve the diversity the university seeks.”
But it then quickly concludes that the University of Michigan
“sufficiently considered workable race-neutral alternatives,” such as a
decreased emphasis on LSAT scores and undergraduate GPA’s, and legitimately
rejected those alternatives because they would “lower admissions standards”
and force the law school to become “a much different institution.”
Might not the
want to become a different
institution if that meant a more readily attainable critical mass of
underrepresented students? Would a
reduced emphasis on the numbers necessitate “lower standards,” or simply different
standards, employed not only to acknowledge significant disparities in
educational opportunities among different racial groups, but also to recognize
the limited predictive value of numerical measures?
The LSAT, for example, is designed
to measure “a limited set of acquired
skills deemed relevant to a person’s ability to perform well in the first
year of law school.”
Even with this very limited purpose, the LSAT is a reliable predictor in
only a small percentage of cases. Expert
testimony in the Grutter case suggested a correlation between LSAT scores and
first-year law school grades of “only 16-20%, which is to say that 80-84% of
first year law school grades are not predicted by the LSAT.”
The same expert testified that on average, taking an LSAT preparation
course improves an applicant’s score by approximately seven points.
This factor, of course, disproportionately impacts underrepresented
groups because more members of those groups cannot afford the high cost of such
The LSAC does not dispute these
points; instead, it simply – and correctly – points out that there is no
other measurement that “comes close to matching the predictive qualities of
(Undergraduate GPA, for example, accounts for less than 7% of the
variance in first-year grades, according to the LSAC.)
The fact that other measurements are weaker
predictors than the LSAT, of course, is no reason to overemphasize the LSAT.
To its substantial credit, the LSAC agrees:
numerical criteria such as LSAT scores, while statistically significant,
“have never come close to accounting
for all the factors that contribute to an individual student’s performance.”
The relatively weak predictive value of the LSAT is apparent even in the
case of wide disparities among scores. One
of the most instructive tools the LSAC uses to encourage law schools to
deemphasize the LSAT in admissions decisions is a chart showing the odds of
students ending up in each quartile of the first-year class.
, of course, seldom consider students with a 150 LSAT score, let alone a 140
LSAT score, but the LSAC’s correlation studies suggest that 10% of students
with a 140 LSAT score and about 25% of students with a 150 LSAT score will earn
higher first-year grades than half of
the students with a 160 LSAT score.
Do we make a serious effort to tease those “diamonds in the rough”
out of the admissions pool, particularly if they bring unique life experiences
and perspectives to the table?
I commend the LSAC on its efforts to educate law schools – and to back
up those efforts with money. For
several years it has offered to pay the expenses of consultants to travel to law
schools to advise admissions officials on appropriate uses of the LSAT.
The September 2003 conference on the
cases, sponsored and heavily subsidized by the LSAC, is another good example of
the organization’s willingness to provide financial support for education
initiatives. Similarly, in its
“New Models” publication, the LSAC explicitly offers financial support to
law schools that are willing to experiment with alternative admissions models.
The LSAC has offered eight different models that essentially advocate
true holistic approaches, taking into account many
factors to ensure that the numbers do not predominate.
It even includes a few specific examples, including one involving a
hypothetical African American applicant who was raised in the inner city in
severe poverty, helped to support his siblings since the age of 12, was the
first in his family to attend college, and worked two jobs as an undergraduate
to support his education and provide financial resources to his family.
This example stands in stark contrast to the Michigan admissions policy,
which suggested the following: “The
applicant may for example be a member of a minority group whose experiences are
likely to be different from those of most students, may be likely to make a
unique contribution to the bar, or may
have had a successful career as a concert pianist or may speak five languages.”
We all know that the bar is high for applicants to
. But when I see statements such as
this, or examine the numbers involved in the Grutter
case, I can’t help but wonder if Justice Thomas wasn’t correct to conclude
was grappling with “the self-inflicted wounds of [its] elitist admissions
Similarly, Justice Scalia’s assertion that
’s predominant interest was in “maintaining a ‘prestige’ law school
whose normal admissions standards disproportionately exclude blacks and other
resonates with me as well. In the
years examined in the Grutter case,
white and Asian applicants who met
’s median LSAT score would place
well within the top 5% of test-takers nationally.
So we know why
had to rely heavily on race, and daily minority-status reports, to achieve a
critical mass of students in underrepresented groups – few members of those
’s normal range for admission.
Don’t get me wrong. I do
’s status as an elite law school.
But I do wonder whether normal admissions standards that, because of such
a heavy focus on the numbers, knowingly exclude a disproportionate number of
minority applicants should be entitled to the kind of deference that the
Why do the rest of us rely so heavily on the numbers?
First, it’s easy – it does not require a lot of resources or a lot of
work making hard decisions based on a myriad of admissions factors.
But surely we should not persist in inherently unfair and unreliable
admissions practices simply because alternatives are more burdensome.
Second, higher LSAT scores and
GPA’s look good in the “rankings.” A
discussion of rankings will have to wait for another day.
I recommend to readers a very thoughtful essay by Patrick Hobbs in a
previous “Leadership in Legal Education” issue of this law review, in which
he urges the “Top Five” law schools to set an example by refusing to
participate in U.S. News & World
I would go further: I cannot
understand why any of us participate in a system we uniformly decry, but whose
rankings are based more on surveys of
law deans and faculty (25%) than on LSAT scores and undergraduate GPA’s
combined (22.5%). And then whenever
we get “good news” from U.S. News,
we sound the trumpets. Talk about
Finally, some of us argue that we
overemphasize LSAT scores in particular because the
requires us to use the LSAT in evaluating applicants.
For all practical purposes, that is true, since there is no other
“valid and reliable” test available that comes close to the standards of the
LSAT. The important point here,
however, is that the
accreditation standards do not mandate the extent
to which LSAT scores are used. And
with the LSAC telling us specifically that we rely too heavily on the LSAT –
and offering alternative admissions models to help us correct that error – it
is doubtful that the
will object if we experiment with such alternatives.
This is particularly true if our alternatives assist us in furthering our
affirmative action goals through true holistic evaluations.
My biggest fear, again, is that
the Grutter decision, in its extreme
deference to the
, will diminish any incentive for law schools to entertain alternatives.
, after all, probably uses race more explicitly, with consultation of daily
and critical-mass targets for underrepresented groups, than most of us.
If it has the Court’s imprimatur to continue its admissions practices,
most of us have that imprimatur as well.
Justice Kennedy suggested in his
opinion that a more exacting standard of judicial review would encourage
consideration of new models: “Were
the courts to apply a searching standard to race-based admissions schemes, that
would force educational institutions to seriously explore race-neutral
What I advocate is different: I
want us to explore race-conscious
alternatives. I agree wholeheartedly
with the Grutter majority that our
society is one “in which race unfortunately still matters.”
One of the many ways in which it matters is in disparities in educational
opportunity and measures of academic “merit,” such as LSAT scores and
A de-emphasis on the numbers in
our admissions practices will benefit many deserving applicants, not just
members of underrepresented groups. And,
I dare say, it may benefit the legal profession
as well. Barbara Grutter is
described in the Supreme Court opinion as “a white
resident who applied to the
in 1996 with a 3.8 grade point average and 161 LSAT score.”
But who is she?
Is she the type of person we
want in law school and in the legal profession?
Surely she cannot be defined by her “numbers.”
My fear is better expressed in
another passage from Justice Kennedy’s opinion:
“By deferring to the law schools’ choice of minority admissions
programs, the courts will lose the talents and resources of the faculties and
administrators in devising new and fairer ways to ensure individual
We as deans must assume a leadership role in this arena.
Few of us have the time to get involved in the day-to-day mechanics of
the admissions process, but we do have an obligation to establish admissions
policy and to ensure that our admissions practices are fair.
I finish with three relatively
modest suggestions. First, we should
consider taking the LSAC up on its offer to experiment with alternative
admissions models that reduce the emphasis on the numbers.
Such models just might aid us in building diverse classes without using
measures that have proven to have disproportionately negative effects on those
groups we seek to assist. Evidence
presented at the Grutter trial, for
example, indicated that after California outlawed the use of race in higher
education admissions by way of Proposition 209, the School of Education at the
University of California-Berkeley was able to enroll a high percentage of
underrepresented minority students (28% of the entering class in 2000) “by
decreasing reliance on the Graduate Record Examination (GRE), and by expending
greater effort in recruiting new students.”
Second, we should resist reflexive
pronouncements that tend to equate LSAT scores with student quality.
In one of the many law school publications I have received recently, for
example, one dean highlights another double-digit increase in applications by
stating that the increase “suggests our mean LSAT may rise another full point,
the fourth such increase in as many years.”
Such statements, of course, imply both that student quality is measured
by LSAT scores and that a greater pool of high-LSAT applicants automatically
means more of these students will be accepted for admission, regardless of any
other characteristics. I do not
mention this to single out any particular institution – this is in fact a very
mild statement in comparison to many others that use LSAT scores and
“rankings” to appeal to alumni and friends.
Nonetheless, the proliferation of such statements, in my view, does play
into the U.S. News agenda and fly in the face of what the LSAC is telling us
about appropriate use of the LSAT.
Finally, I would call attention to
sage advice from our colleague Gene Nichol, which also appeared in an earlier
version of this “Leadership in Legal Education” symposium series.
Dean Nichol offered “Ten Small Lessons from the Campaign Trail,”
from his time campaigning for political office in
. Included among those lessons were
observations that we might take to heart in determining the kinds of law school
classes that will serve us best:
statewide political campaign hammers you with the reality that we still draw
from but a tiny corner of the world around us.
Most of the people I met campaigning, from welfare moms to beat cops to
truck drivers to motorcycle helmet law activists to marijuana advocates, have no
counterpart in the halls of the major American law schools.
It is not because they are not smart enough, committed enough, or
deserving enough. As ever,
opportunity flows most generously to those who are already privileged.
“Merit” is a complex and artificial notion.
We should not be confused or flattered by it.
Dean and Professor of Law, University of
I was not surprised that the four dissenters accused the majority of “an
unprecedented display of deference under our strict scrutiny analysis.”
at 2370 (Rehnquist, C.J., dissenting). See also id. at 2349 (Scalia, J., concurring in part and dissenting
in part) (“’[D]eference does not imply abandonment or abdication of
judicial review.’”) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340
(2003)), 2350 (Thomas, J., concurring in part and dissenting in part)
(“Nor does the Constitution countenance the unprecedented deference the
Court gives to the Law School, an approach inconsistent with the very
concept of ‘strict scrutiny.’”), 2370 (Kennedy, J., dissenting)
(“The Court . . . does not apply strict scrutiny.”).
at 2343. Indeed, this
“individualized” review is what distinguished the law school’s policy
from the undergraduate policy that the Court held to be unconstitutional.
Gratz v. Bollinger, 123
2411, 2431 (2003) (O’Connor, J., concurring).
Grutter v. Bollinger, 137 F. Supp. 2d 821, 825 (E.D. Mich. 2001), rev’d en banc, 288 F.3d 732 (6th Cir. 2002), aff’d,
at 826 & Exhibit A.
The LSAC stated in 1999 that “perhaps more than 90 percent” of American
law schools employed such a presumptive admission model.
Law School Admission Council, New Models to Assure Diversity,
Fairness, and Appropriate Test Use in Law School Admissions 21 (Dec. 1999)
[hereinafter New Models].
at 2360 (Thomas, J., concurring in part and dissenting in part).
at 2347-48 (Ginsburg, J., concurring) (citations omitted).
137 F. Supp. 2d at 864.
at 2333 (emphasis added).
Brief for Respondent at 35-36, Grutter v. Bollinger, 123
2325 (2003) (No. 02-241).
recently approved a change to Standard 503, which requires law schools to
use “a valid and reliable test” in their admissions decisions.
Prior to August 2003, the LSAT was mentioned specifically in the body
of the standard. Now it has been
relegated to an “interpretation,” but that interpretation imposes an
obligation on any law school that uses an admissions test other than the
LSAT to “establish that such other test is a valid and reliable test to
assist the school in assessing an applicant’s capability to satisfactorily
complete the school’s educational program.”
Standards for Approval of Law Schools, Interpretation 503-1 (August 2003).
New Models, supra note 8, app. B.
Brief for Petitioner at 16, Grutter v. Bollinger, 123
2325 (2003) (No. 02-241).
New Models, supra note 8, at 3.
at 2370-71 (Kennedy, J., dissenting).
Philip D. Shelton, The LSAT:
Good—But Not That Good, Law School
Admission Council, Law Services Report (Sept./Oct. 1997) (emphasis added).
137 F. Supp. 2d at 860.
Philip D. Shelton, Admissions Tests:
Not Perfect, Just the Best Measures We Have, Chron. of Higher
July 6, 2001
, at B15.
Therefore, even the combination
of LSAT scores and undergraduate GPA’s accounts for less than one quarter
of the variance in first-year grades.
, supra note 23 (emphasis added).
New Models, supra note 8, at 9.
137 F. Supp. 2d at 826-27 (emphasis added).
at 2350 (Thomas, J., concurring in part and dissenting in part).
at 2349 (Scalia, J., concurring in part and dissenting in part).
Oh, heck, maybe I do. These
observations, after all, come from a dean at a small, “third tier”
(horrors!) law school.
Cf. Gratz v. Bollinger, 123
2411, 2430 (2003) (“[T]he fact that the implementation of a program
capable of providing individualized consideration might present
administrative challenges does not render constitutional an otherwise
Patrick E. Hobbs, Noblesse Oblige: Four
Ways the “Top Five” Law Schools Can Improve Legal Education, 33 U.
Tol. L. Rev. 85, 86-87 (2001).
One reasonably could question the credibility of the
admissions personnel who testified that they “never gave race any more or
less weight based on the information contained in these reports.”
at 2374 (Kennedy, J., dissenting).
at 2373 (Kennedy, J., dissenting).
137 F. Supp. 2d at 862. Similarly,
Justice Thomas noted in Grutter
that “[t]he sky has not fallen at Boalt Hall . . . . Total
underrepresented minority student enrollment at Boalt Hall now exceeds 1996
at 2359 (Thomas, J., concurring in part and dissenting in part).
33 U. Tol. L. Rev. 131 (2001).
at 132. See
also Lani Guinier, The
Constitution is Both Colorblind and Color-Conscious, Chron. of Higher
Educ., July 4, 2003, at B11-B12 (noting that LSAT scores are not “truly
objective measures of merit” because “racial and wealth preferences are
embedded” within them; “tests . . . correlate more with socioeconomic
privilege than future performance”).