Assessing the Viability of Race-Neutral Alternatives in Law School Admissions

Assessing the Viability of Race-Neutral Alternatives in Law School Admissions Eboni S. Nelson, * Ronald Pitner, ** & Carla D. Pratt *** ABSTRACT: Over the past several years, law schools have experienced many challenges stemming from declines in student enrollment due to a shrinking applicant pool. The declining number of applicants is particularly problematic for law schools seeking to educate students in racially diverse * Professor of Law, University of South Carolina School of Law. J.D., Harvard Law School; B.A., Wake Forest University. My thanks to Danielle Holley-Walker, Meera Deo, Verna Williams, and Jeannine Bell for comments, suggestions, and discussion on this Article. Also, my thanks to workshop participants at the Lutie A. Lytle Black Female Faculty Writing Workshop for helpful discussion of some of the issues in this Article. I would also like to thank Chris Mathis, Carol Young and Vanessa Byars for their invaluable research and administrative assistance. This Article benefited greatly from the authors’ attendance at the George Mason Law & Economics Center LEC Workshop for Law Professors on Empirical Methods; therefore, we would like to thank workshop participants and instructors, specifically Jonathan Klick, Eric Hellend and Bruce Kobayashi. We also express our gratitude to the Access Group Center for Research & Policy Analysis for providing grant funding to support this project. Finally, I thank Scott and Ella Nelson for their love, patience, and support. This Article is dedicated to my grandmother, Martha Ann Fowler, who always shared and rejoiced in my educational, professional, and personal achievements. May you find eternal rest in the loving arms of the Lord. ** I. DeQuincey Newman Endowed Chair and Director of the I. DeQuincey Newman Institute for Peace and Social Justice, Distinguished Associate Professor in Social Work Research; College of Social Work; University of South Carolina. I would like to thank Access Group for funding and supporting this research. I would also like to thank Elizabeth Thomas, Kyunghee Ma, and Trang Nguyen who were graduate assistants in charge of data entry. Finally, I want to thank the University of South Carolina’s College of Social Work for being supportive of faculty who conduct transdisciplinary research designed to address social injustices. As an alumnus of the University of Michigan, I dedicate this article to all universities who actively work to increase the diversity of their student body population. *** Associate Dean for Academic Affairs and Educational Equity, Nancy J. LaMont Faculty Scholar and Professor of Law; Pennsylvania State University, Dickinson Law. I too would like to thank Access Group for the funding that supported the research that is the foundation for this article and George Mason Law School for including us in their empirical methods workshop for law professors with special thanks to Jonathan Klick, Eric Helland and Bruce Kobayashi. Many thanks to my research assistants Olivia Phillips and Joslin Schultz for their able assistance in conducting some of the research to support this article. I would also like to thank the supportive community of Lutie A. Lytle scholars for their invitation to present this work when it was still in the preliminary phase, with special thanks to Angela Onwuachi-Willig. Last, but not least, I thank my now adult children Payton and Christopher Pratt for their enduring love and for their understanding when Mom’s work intrudes on their time. Everything I do is for both of you. 2188 IOWA LAW REVIEW [Vol. 102:2187 learning environments. In light of recent challenges to the constitutionality of race-conscious affirmative action and the likelihood that President Donald Trump will make several appointments to the Supreme Court—thereby shifting its balance toward the ideology of colorblindness—it is imperative to engage in a project that examines the relationship between racial categories and race-neutral identity factors in law-school admissions. Understanding the relationship between racial groups and certain race-neutral identity factors will help law schools comply with Fisher I ’s mandate that universities consider race-neutral means for achieving diversity before using race as a factor in their admissions processes. Understanding this relationship will also be useful for higher-education institutions seeking to enroll racially diverse student bodies in jurisdictions that do not permit the consideration of race in admissions, and may become necessary for all institutions if the Court overrules the Fisher and Grutter decisions. Moreover, the data from this study illuminates persisting structural inequalities for certain racial minority groups and rebuts the assumption that those privileged enough to make it to law school are insulated from the structural inequalities that race-conscious affirmative action historically sought to address. This empirical study surveyed first-year law students at public American Bar Association approved law schools and asked them about race-neutral aspects of their identity, such as family background and educational-institution characteristics, to determine whether there is a relationship between their race and certain socioeconomic identity factors. The findings will enhance law schools’ understanding of race-neutral admissions factors that may contribute to their abilities to assemble racially diverse student bodies, and will give them tools to experiment with trying to yield racially diverse classes without asking applicants about their race. Possessing such knowledge will greatly aid law schools as they develop and implement admissions policies in their efforts to provide greater access to students from backgrounds underrepresented in the legal profession while also fulfilling their commitment to educate all law students in a diverse learning environment. I. INTRODUCTION ........................................................................... 2189 II. THE DIVERSITY DILEMMA IN LAW SCHOOLS AND THE LEGAL PROFESSION ................................................................................ 2198 III. ACHIEVING DIVERSITY THEN AND NOW ...................................... 2202 A. T HE BAKKE G UIDEPOST ......................................................... 2202 B. T HE D EMAND FOR M ORE E XACTING S CRUTINY ....................... 2206 IV. EXPERIMENTING WITH RACE NEUTRALITY .................................. 2209 A. T HE T EXAS T EN P ERCENT P LAN AS A R ACE -C ONSCIOUS M ODEL OF R ACE N EUTRALITY ................................................ 2209 2017] RACE-NEUTRAL ALTERNATIVES 2189 B. U SING R ACE -N EUTRAL C RITERIA IN L AW -S CHOOL A DMISSIONS TO A CHIEVE R ACIAL D IVERSITY ........................... 2213 1. Law Schools Have a Unique Opportunity to Experiment with Race Neutrality ............................... 2214 2. Study Design ................................................................ 2218 3. Data Collection ............................................................ 2222 4. Data Analysis ................................................................ 2223 V. FINDINGS ..................................................................................... 2225 VI. OBSERVATIONS ............................................................................ 2232 VII. CONCLUSION .............................................................................. 2233 I. INTRODUCTION The past several years have been challenging for law schools because many have experienced declines in student enrollment due to a shrinking applicant pool. 1 The declining number of applicants is particularly problematic for law schools in their attempts to enroll sufficient numbers of students to comprise incoming classes without sacrificing the numerical academic credentials of matriculating students. One such challenge concerns their efforts to educate students in racially diverse learning environments. 2 For several decades, law schools have recognized and actively pursued the educational and social benefits commonly associated with assembling racially diverse student bodies. 3 In their efforts to enroll diverse classes, they have implemented strategies ranging from minority-targeted recruitment 1 . See Ethan Bronner, Law Schools’ Applications Fall as Costs Rise and Jobs Are Cut , N.Y. TIMES (Jan. 30, 2013), http://www.nytimes.com/2013/01/31/education/law-schools-applications-fall-as-costs-rise-and-jobs-are-cut.html; Benjamin Wermund, Shrinking Applicant Pool Has Law Schools Competing to Cut Costs , HOUS. CHRON. (June 1, 2014, 11:06 AM), http://www.houstonchronicle. com/news/education/article/Shrinking-applicant-pool-has-law-schools-5519781.php. 2 . See generally Aaron N. Taylor, Diversity as a Law School Survival Strategy , 59 ST. LOUIS U. L.J. 321 (2015). 3 . See David Kow, The (Un)compelling Interest for Underrepresented Minority Students: Enhancing the Education of White Students Underexposed to Racial Diversity , 20 BERKELEY LA RAZA L.J. 157, 159–61 (2010) (discussing the University of Michigan Law School’s theory in Grutter v. Bollinger , 539 U.S. 306 (2003), that educational benefits from a diverse student body constituted a compelling interest that met strict scrutiny); Eli Wald, A Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who is Responsible for Pursuing Diversity and Why , 24 GEO. J. LEGAL ETHICS 1079, 1118 (2011) (discussing law schools that have made a commitment to “formal diversity”); cf. Robert A. Sedler, Racial Preference in Law School Admissions: The Public Interest in a Diverse Legal Profession , 1 J.L. SOC’Y 17, 18 (1999) (“When racially preferential law school admissions policies were first adopted in the middle 1960s, the primary purpose for doing so was not to attain a racially diverse student body in law schools, although the programs had this clearly desirable educational effect.”). 2190 IOWA LAW REVIEW [Vol. 102:2187...