Within hours of the Supreme Court’s decision on affirmative action this past June, every American Bar Association-accredited law school received a threat.
“There are those within and outside your institutions who will tell you that you can develop an admissions scheme through pretext or proxy to achieve the same discriminatory outcome,” Stephen Miller, president of America First Legal, warned in a letter. “Anyone telling you such a thing is coaching you to engage in illegal conduct in brazen violation of a Supreme Court ruling, lawbreaking in which you would be fully complicit and thus fully liable.”
Miller ended his letter by telling law school deans that America First Legal, a nonprofit advocacy group, was ready to sue their schools.
It was a stark warning and a reminder that the court’s decision in Students for Fair Admissions v. Harvard would have a profound effect on admissions at hundreds of law schools. The decision is expected to severely limit — if not end — affirmative action in higher education.
While law school deans have said they will uphold the law, few are giving up on diversity. But the decision will require law schools to experiment, innovate and view diversity in a new way.
Commentators have pointed out that law schools have other tools at their disposal. They include pipeline programs and the new JD-Next program, which is designed to be an alternative to the LSAT, as well as more creative approaches that invite students to write about their personal identities.
At the undergraduate level, the nonprofit College Board offers a free program that provides demographic information on applicants’ high schools and ZIP codes. Some schools are developing their own systems, such as University of California Davis School of Medicine’s socioeconomic disadvantage scale.
But the specter of litigation looms, with America First Legal and other conservative groups expecting universities to evade the strictures of the court’s decision by reverse-engineering their admission criteria to achieve diversity.
While Chief Justice John Roberts said in the written ruling that an applicant “must be treated based on his or her experiences as an individual, not on the basis of race,” he left an opening.
“Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life.”
Erwin Chemerinsky, one of the nation’s leading constitutional law scholars and dean of University of California, Berkeley, School of Law, said considering how race has affected one’s life without considering that person’s race will be a very difficult line to draw.
“It will lead to a lot of litigation,” he said.
Like many, Chemerinsky was not surprised by the decision. It seemed to be a foregone conclusion, given how the makeup of the Supreme Court changed during Donald Trump’s presidency.
“But I was surprised that it was disingenuous,” Chemerinsky said. “The court never says, ‘We are overruling Bakke or Grutter,’ but that is exactly what it does.”
The 1978 case, Regents of the University of California v. Bakke, found that racial quotas violated the Equal Protection Clause but that race was permissible as one of several admission criteria.
Grutter v. Bollinger was decided 25 years later, in 2003. It held that an admissions process that favors underrepresented minority groups does not violate the Equal Protection Clause so long as it considers other factors on an individual basis.
In the majority opinion, Justice Sandra Day O’Connor wrote that “race-conscious admissions policies must be limited in time,” adding that the court “expects that 25 years from now the use of racial preferences will no longer be necessary.”
In Students for Fair Admissions v. Harvard, the court stated that admissions must be based on students’ individual experiences rather than on race.
“Many universities have for too long done just the opposite,” the decision noted. “And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built or lessons learned, but the color of their skin. Our constitutional history does not tolerate that choice.”
A political fight
Reaction to the decision has split down political lines, with both sides taking a negative view. Liberals believe it will harm legal education by decreasing diversity. Conservatives believe it will have little effect, saying schools will evade the structures of the decision, hence America First Legal’s warning letter that it will sue schools that don’t comply.
Concern bubbled up in August when articles published by conservative media organizations claimed that law school administrators had huddled to circumvent an affirmative action ban.
In July, Chemerinsky had put together an event to discuss how institutions could use race-neutral means to achieve diversity. As a past president of the Association of American Law Schools, he wanted to provide guidance to other deans, especially since his school, Berkeley Law, had removed race from admissions in 1996. He brought in leaders from other schools that also don’t use race as a factor in admissions.
The Daily Caller and The Washington Free Beacon both wrote articles about the event.
“Top law school administrators are brainstorming ways to circumvent the Supreme Court’s ban on race-based admissions, advising schools not to create a ‘record’ of ‘discriminatory intent’ and warning that socioeconomic preferences will result in too many white and Asian students being admitted,” The Beacon reported in August.
The article went on to say that Chemerinsky “had been caught on tape, in June, describing how his school gets around California’s ban on affirmative action in faculty hiring, joking with students that ‘If ever I’m deposed, I’m going to deny I said this to you.’”
Chemerinsky was quick to respond that The Beacon and other publications were taking comments out of context.
“Affirmative action is enormously political,” he said. “The paper took some comments out of context. They focused on the University of Michigan’s general counsel, who said it is important how we talk about things. That was taken in a negative light.”
But the vitriol has the potential to make things worse.
“Conservative media organizations… are attempting to depict academic institutions as lawless, duplicitous and hostile to poor whites (and Asians),” blogged Michael Simkovic, a professor at University of Southern California, Gould School of Law.
He went on to say that conservative media “talking points often spread to mainstream media organizations with a broader reach” and that law schools are vulnerable to a “repeat of the devastating criticisms of the 2010s.” Criticism, he pointed out, that led to a drop in law school applications.
How bad will it get?
Simkovic was referring to the period from 2011 to 2015 when law school applications dropped from 91,000 to 57,000. Most legal educators, however, are more worried about a repeat of the mid-1990s.
In 1996, when Californians passed a referendum to ban race in admissions, minority enrollment at law schools plummeted there.
At Berkeley Law, the number of Black first-year law students dropped from 20 to one. That was in a class of 270 students.
It was an ominous sign, which led this magazine to run the headline “A Return to Segregation” on its cover in September 1997.
Without time to make significant changes to admission policies, the four University of California law schools all saw similar declines. Berkeley Law only admitted 14 Black students in 1997, down from 75 the year before. UCLA School of Law dropped from 104 to 21. UC College of the Law, San Francisco (then known as UC Hastings), saw its numbers drop from 88 to 36, and UC Davis School of Law went from 27 to 20.
Hispanic and Native American students were affected as well, but their numbers were not as dramatic.
A similar story played out at University of Texas School of Law in Austin, where only four Black first-year students were expected to attend after that school’s admissions policy was struck down as unconstitutional.
“The effect is so dramatic that it is hard to argue that it is not segregation,” said Juan Zabala, who was dean of business affairs at the time.
Minority enrollment in California and Texas eventually improved, but it took years.
When Chemerinsky became dean of Berkeley Law in 2017, there were only 12 Black students in the 1L class.
“Was it not getting applications, not admitting [Black students], or not getting them to come when admitted? For us it was the latter,” he said. “We developed a very aggressive recruitment plan that was not race based. It included using alumni, faculty and students to outreach to admittees.”
Berkeley Law has enrolled between 30 and 50 Black students a year during the past four years, a significant improvement from 2017. Black students made up 6.2% of the student body last year, higher than the 5% state average but lower than the national average of 13.6%.
But Berkeley Law could be an outlier.
Aaron Taylor, a former law professor at Saint Louis University School of Law in Missouri, is now executive director of AccessLex Institute Center for Legal Education Excellence, where he has written extensively about admission of underrepresented groups.
“I don’t think Black enrollment ever recovered,” he said about the turmoil of the 1990s.
Taylor said the recent Supreme Court decision could further stratify legal education.
“We will see the most significant [enrollment] decline among the flagship public law schools and the elite schools,” he said. “Other schools may be able to push through with slight declines, if not stay flat.”
Taylor said he worries that the decision could bifurcate legal education, with most students of color attending 20% of law schools and the remaining schools being disproportionately white.
“My guess is that everyone is figuring out what all this means in a practical way,” he said. “The ABA has said it will still hold schools accountable but will do so in context of this decision. That may temper what schools do, but law schools are still committed to the value of diversity.”
The ABA requires law schools to show that they are taking steps to enroll a diverse student body and employ a diverse faculty. The accrediting body also requires law schools to admit students who are likely to pass the bar exam, requiring that 75% of a class pass the bar exam within a few years.
The two requirements are somewhat at odds with each other because minority students pass the bar exam at lower rates than white students do. The ultimate passage rate for white students is 90%, compared with 86% for Asians, 81% for Hispanics and 72% for Black students.
This has forced law schools to seek out better ways to prepare minorities for the bar exam.
More racial diversity, but not overall diversity
Without question, affirmative action helped legal education achieve diversity levels that could not have been imagined 30 years ago.
In 1978, the year Bakke was decided, students of color made up just 9% of incoming law students. By 2011, one quarter of all law students were people of color. That number has since improved to 32%.
A 1990 study found that of 3,435 Black applicants accepted to at least one law school, only 20% would have been admitted had grade point averages and LSAT scores been the only criteria for admission. The same study found that Black and Hispanic students who did make it into law school were generally successful, even though bar passage rates were lower.
But classes at elite law schools were still not diverse from a socioeconomic standpoint. A 2011 study by Richard Sander titled “Class in American Legal Education” showed that only 5% of students at elite law schools came from the lower half of the socioeconomic spectrum.
Sander, a professor at UCLA School of Law, found that students from the top 10% of the socioeconomic spectrum were 10 times as likely to attend law school as were students from the bottom half, and more than 18 times as likely as students from the bottom quarter.
“The students who attend top-tier law schools are overwhelmingly representative of the elite socioeconomic class, oftentimes as a result of merely being born to parents who were also a member of that class,” wrote Michael Higdon, a professor at University of Tennessee College of Law, in a 2013 article titled “Law Faculty Hiring and Socioeconomic Bias.”
Students for Fair Admissions could change that.
AccessLex’s Taylor said elite schools such as Harvard Law School will see a dramatic decline in students of color unless the schools reduce their emphasis on LSAT scores.
“If they still emphasize the LSAT as the primary admission factor, their pool of underrepresented students will be dramatically lower,” he said.
That’s because students from lower socioeconomic classes score 170 or greater on the LSAT.
John McGinnis, a professor at Northwestern University Pritzker School of Law in Chicago, wrote an article that says the Students for Fair Admissions decision will improve legal education.
“While the court’s decision is no panacea, it offers the opportunity for law schools to again become more meritocratic and ideologically open institutions,” he wrote. “Happily, law school administrators will now encounter more obstacles to the use of race and ethnicity in admission and hiring, and legal education will be the better for it.”
While Berkeley Law’s Chemerinsky may not agree, he supports diversity in all its shapes and forms.
“We need to reach out to people like me who did not know any lawyers when they grew up and let them know what law is as a profession,” he said. “We can create programs that are not race based but help us achieve diversity, such as admitting first-generation law students.”
DEI: The devil in disguise?
After the Students for Fair Admissions decision was handed down, Michael Dorf, a professor at Cornell Law School in Ithaca, New York, asked an important question about Diversity, Equity and Inclusion offices.
“Should Stanford and other institutions disband their DEI offices and abandon the goal of diversity?” he wrote. “After all, the anti-woke provocateurs and demagogues demonizing DEI already blithely conflate it with critical race theory and other ostensible bogeymen that have no necessary connection to any DEI initiatives.”
Dorf answered his own question: No.
“Intellectual diversity and background diversity — including diverse experiences of race — remain important contributors to the success of educational institutions,” he continued.
Most law schools have only recently added DEI administrators. A survey by American University Washington College of Law in 2021 found that 73% of DEI administrators had been in their positions for less than three years and that 69% were the first person hired for that position.
Cooley Law School in Lansing is one school that is amping up its DEI efforts.
“We are digging in and doubling down on our mission, which is one of access,” said Dean James McGrath. “We have broadened our definition of access and diversity to include everyone so the legal profession can look more like society.”
Cooley Law School was founded in 1972 with the mission of serving everyone who wanted a legal education, including people from lower socioeconomic classes.
“We are still committed to diversity in many ways that other schools don’t think about,” McGrath said. “That brings in racial diversity as well.”
The school’s DEI committee, made up of faculty and staff, brings in speakers, hosts events and sends students to events at other schools.
“Our students of color respect the fact that we are working for them,” McGrath said. “I greet students at the start of the year and out myself immediately as an openly gay man. We make sure that students feel welcome here.”
Law schools have also ramped up bar prep programs and class prep courses for underrepresented students.
City University of New York School of Law in Long Island City offers a law school skills program to all students.
“For students with lower LSAT [scores], we can provide an environment where we truly support them and they find community and mentorship,” said Gayla Jacobson, director of admissions, enrollment and dual degree programs at CUNY Law.
The skills program has weekly sessions that track with required first-year courses. Topics include preparing for class, case reading and briefing, note taking, outlining and studying for exams.
“This allows the instructors to ask students if this is what their notes look like or if they understood the material a professor covered,” Jacobson said.
CUNY Law also gives midterms to provide assessment and feedback.
Jacobson said the midterm is only 15% of the student’s grade, “but it gives them a good understanding of where they are and avoids blindsiding them at the end of the term.”
Better than the LSAT
The LSAT, a tool designed to predict a student’s success in the first year of law school, has been a constant in legal education for more than 70 years. But it has also been criticized for limiting diversity.
“The LSAT has been over-emphasized in admissions,” AccessLex’s Taylor said. “It is a tool that has predictive value, but that value is limited. When you give it more weight than it deserves, you are misusing it.”
The Law School Admission Council, which administers the LSAT, said it has a predictive value of .60, which improves to .66 when combined with undergraduate GPA.
Cooley’s McGrath acknowledged the LSAT is the best predictor for law school success.
“But it is still a blunt instrument,” he said. “We have a lot of students that came in with low LSAT numbers but who did very well.”
Taylor is hopeful that alternatives will prove successful and become more widely used. His organization, AccessLex, helped fund JD-Next, a program developed at The University of Arizona James R. Rogers College of Law.
JD-Next is designed to offer a reliable measure of a student’s ability to learn and succeed in law school. In other words, it focuses not on what a student knows but on what a student can learn.
The online program includes an eight-week course covering doctrinal concepts and legal skills workshops. It culminates in a final exam that tests a student’s grasp of the material. Studies show that the test avoids the racial disparities that affect the LSAT and GRE.
“It offers great promise in reducing historic barriers and identifying students who will thrive in law school and in their careers,” said David Yellen, dean of University of Miami School of Law, which is one of 32 law schools recently approved by the ABA to use the program in lieu of the LSAT.
CUNY Law, UC Davis and Georgetown University Law Center in Washington, D.C., are some of the other schools using JD-Next. Taylor said the potential for JD-Next is almost endless.
“The proof will be in what the data looks like after this [initial] admission group uses the tool and enrolls,” he said. “How will those students do in law school and on the bar exam compared to people admitted the traditional way?”
Aspen Publishing recently secured an exclusive license to market JD-Next. The company is hopeful it will be a “game changer” in legal education.”
It is not the only program that hopes to reinvent admissions. Legal educators are bullish on pipeline programs, which are programs where underrepresented students interested in law receive counseling, support and tutoring before law school.
Pipeline to success
Leonard Baynes has been a champion of pipeline programs for almost 20 years.
“I have been doing this since 2005, and the beauty of that is that I see the results,” said Baynes, who is dean of University of Houston Law Center. He started his first pipeline program at St. John’s University School of Law in New York.
More than 340 lawyers can trace their start in law back to a pipeline program that Baynes started. Most of those lawyers came from families with incomes of less than $50,000 a year, and 50% are first-generation college graduates.
“Everybody starts at a different place,” Baynes said. “But you, as a student, have the keys to change your trajectory. After we give you the tools, you can do something.”
Baynes said a good pipeline program gives students tools and support that more advantaged students take for granted.
Students from underrepresented groups “may not realize how excellent they are because they are competing with a weight vest on that is slowing them down and not allowing them to go as quickly,” he said, using the analogy of a swim race.
Baynes said he tells his students about an LSAT instructor he met who charges $300 an hour for private tutoring and that one family flew the instructor to a private compound in Florida to tutor their son.
“Whatever score someone gets on the LSAT, they worked hard for that,” Baynes said. “But I tell my students this story because that is what they are competing against.”
University of Houston’s pipeline program has helped some students improve their LSAT scores by as much as 26 points; the median improvement is 14 points. Students in the program have also seen their college GPAs improve.
Baynes said a robust pipeline program also has a positive effect on the institution that sponsors it.
“You are contributing to the legal profession as a whole,” he said. “Even if the students don’t go to your law school, you don’t know how you will intersect in the future. You never give to get back. But when you do good things, good things sometimes happen for your institution.”
Legal education’s leading think tanks are now investing into similar programs.
In 2020, AccessLex introduced LexScholars, a pathway program to help prospective law students from underrepresented backgrounds. It is only open to students with undergraduate GPAs no higher than 3.3 and LSAT scores below 145.
The program includes LSAT preparation, law school admission counseling, financial education, wellness training and writing skills development. Taylor said the program will need to change some criteria in light of the Students for Fair Admission decision.
The Law School Admission Council recently introduced its own pathway program called LawReady. It is designed to help undergraduates develop the skills necessary for success in law school, navigate the admission process and build a supportive network. More than 75 law schools are participating in the program, with the first group of students expected to enroll in law school in fall 2025.
LexScholars and similar programs often provide scholarships to participating students, a practice that many educators believe is the next battleground for diversity.
The future of diversity
CUNY Law has bucked the trend when it comes to financial aid. Instead of using money to entice students with high LSAT scores, it has moved exclusively to need-based scholarships.
“We know that Black students are more likely to graduate with debt,” CUNY Law’s Jacobson said. “Setting up financial support for students is really important.”
Taylor agrees. He said the trend in the past 15 years has been to move away from need-based scholarships and toward merit-based aid, benefiting white students at the expense of minorities.
“It is Robin Hood in reverse,” he said.
By moving back to need-based aid, law schools can better support the students who need money the most and improve diversity.
Schools can also define merit differently.
“If you are awarding an increased amount of scholarships because they are people of color, that is probably illegal,” Taylor said. “But if a school defines what merit means to them and awards that way, then it is allowed.”
Chemerinsky is worried that some law schools won’t make the tough decisions, such as changing their financial aid criteria.
“For the law schools that are committed to achieving diversity, they will find a way, though it may take time,” he said. “I worry that some law schools will say they can’t do it and just give up on it.”
He said schools should be innovative and aggressive, even in the face of lawsuits.
Taylor agrees.
“You can’t just lay down because someone has threatened to sue you,” he said. “Follow the law. Why would you allow a threat to prevent you from doing something that the decision does not prevent?”
Taylor said law schools can still take steps to achieve diversity, even if the Students for Fair Admissions decision makes admission selections more challenging and time-consuming.
CUNY Law, which just admitted its most diverse class ever, already takes a different approach than most schools.
“Every school says they have a holistic review process, and I am sure that is true,” Jacobsen said. “But at CUNY, the admissions team understands the nuance that goes into people’s life stories, especially those from underrepresented backgrounds.”
She said the school looks beyond LSAT scores and GPAs for students who have overcome challenges in their personal lives, including criminal records. The school also places a priority on admitting students who connect with the school’s mission to produce lawyers who serve underrepresented communities. It is a method that other schools can learn from.
“Schools got a little lazy with affirmative action,” Jacobsen said. “Now we need to be more creative.”
