April/May 1999 

 Diversity in
Law School Admissions

By Sam Magavern

Let's say that you and I are in charge of admissions at a new law school in Minneapolis. We are developing our admissions criteria. We agree that we should use the Law School Admissions Test (LSAT), college grade point average (GPA), and admissions essays. I then propose that we also consider diversity. I define diversity, for our purposes, as "the degree to which the applicant belongs to groups which are discriminated against and which are underrepresented in our law school, in the bar, and in positions of wealth and power." For example, I would give extra points to students who are non-white, poor, disabled, older, immigrant, gay, or lesbian.

You disagree. You say that it is unfair, and possibly illegal, to use group classifications in evaluating students. Each student, you say, must be judged by her abilities and accomplishments alone.

I have two responses to your argument. First, I believe that group classifications may be used to remedy institutional and social discrimination and to provide diversity -- and that they only become unjust when used to subordinate certain groups. Second, even if I agreed with you -- that each student must be judged only on individual terms -- we would still need to use affirmative action to counteract the distorting effects of prejudice and inequality.

Diversity. You would not want every member of your orchestra to be a violinist. You would not want every member of Congress to be a lawyer, or a dentist. I do not want every member of our law school, or our bar, or our professional elite in general, to be a prosperous, white, non-disabled, native-born heterosexual. A diversity of backgrounds, viewpoints, and experiences makes for a better school and a better bar. Every institution has its own needs, and often the institution needs a certain variety of members, not simply members with the highest possible level of ability and accomplishment.

A broad range of students helps each student by exposing her to different views and experiences and teaching her to work effectively with diverse people. For example, when I was in law school, I had some interesting arguments with a Malaysian friend about the right to bear arms. His family had suffered through anti-Chinese rioting in Malaysia, and he viewed the right to defend oneself with arms as a vital component of democracy. Similarly, when we debated flag-burning in Constitutional Law, a Mexican-American classmate from East Los Angeles spoke eloquently about the sacredness of the American flag to his immigrant grandfather -- helping me to understand how rational people could disagree about the right to burn the flag.

Justice. Rational people do not disagree that certain groups have suffered from massive, unjust, and illegal discrimination in our society. Slavery, wars of extermination, internment, lynching, segregation, gay-bashing -- these are not matters of opinion. More subtle contemporary forms of discrimination -- by landlords, lenders, employers, and teachers -- have been proven and measured by countless empirical tests. The question, then, is whether an institution, like a law school, can respond to this injustice by giving a preference to members of disfavored groups.

The trend among courts is to allow such preferences only where the institution itself has proven its own history of illegal discrimination. This makes no sense to me. Why should we be forbidden from doing a good thing unless we can show that we did a bad thing in the past? We are starting a new law school. But we see that, because of discrimination and inequality, certain groups are woefully underrepresented in the bar. Why can't we advance justice by helping to remedy that history of illegality? Should it be illegal for me to send money to flood victims because I did not cause the flood? Illegal for me to help a mugging victim to his feet, because I'm not the one who mugged him?

Some people feel that group classifications should always be irrelevant, that we should be "blind" to them. This is a dangerously shallow vision of equality. How could it, and why should it, be irrelevant that I am gay or straight, European-American or African-American, sighted or blind? Equality does not mean that group characteristics are irrelevant, only that they cannot be used to oppress, to create subordinate castes. A preference to a disfavored group does not oppress members of more favored groups; the non-disabled, the straight, the U.S.-born, the European-Americans are in no danger of becoming subordinate castes. In other words, as groups, they do not suffer from unequal political power, wealth, or prestige.

Sam Magavern is a lawyer with the Community Legal Education unit of the Legal Aid Society of Minneapolis. A graduate of Harvard College (1985) and UCLA Law School (1990), he is a 1998-99 Policy Fellow at the Humphrey Institute of the University of Minnesota.

The views expressed in this essay are not necessarily those of the Legal Aid Society of Minneapolis.

"A diversity of backgrounds, viewpoints, and experiences makes for a better school"

Let's say that you find the previous arguments utterly unconvincing, and that you still believe we should judge each applicant solely by his or her achievements, talents, qualifications, and potential. We will need to use affirmative action to achieve your aims. Why? Because innumerable layers of prejudice and inequality prevent us from judging members of disfavored groups on their merits.

The Evaluators' Prejudice. The first layer of prejudice is our own. "Wait," you say. "I have no hostility toward any group. I don't stereotype people. What bias do I have?" The answer is that prejudice can be much more subtle and diffuse than conscious hostility and obvious stereotypes. First, there is the universal human tendency to like people who resemble us. Second, and more important, is the way that every society links innumerable positive associations to its dominant groups and innumerable negative associations to its disfavored groups. These linkings are an inevitable method -- both conscious and unconscious, individual and systematic -- for gaining and maintaining power and prestige. It is impossible not to internalize many of these associations, even if you belong to disfavored groups yourself. They are woven inextricably into our books, our TV and movies, our social habits and mores, and the hazy background of our cultural assumptions. These associations distort our evaluations of resumes and application essays.

The Bias of Standardized Tests. Standardized tests, like the LSAT, reflect the knowledge, style, thought-patterns, values, and assumptions of the dominant social groups. Like human interviewers, standardized tests favor people who resemble the tests' creators. Furthermore, as a recent New York Times article reported, wealthier students have the time and money to take LSAT prep courses, which raise their scores substantially. Members of disfavored groups are far less likely to have that time and money.

Past Evaluators and Past Tests. As we look at an applicant's resume, we must remember that the biases of tests and evaluators have shaped the applicant's educational career since kindergarten, in a series of self-perpetuating patterns and self-fulfilling prophecies. At each phase, in each grade, members of dominant groups are more likely to be advanced, to be judged successful, to gain access to further educational opportunities and advantages.

Inequality and Educational Opportunity. At this point, we have only scratched the surface of the ways in which discrimination and inequality shape educational opportunities. Let's take two students who are genetically identical, except for the fact that one is African-American and one is European-American. Let's say that each one has a life that is statistically average for his racial group.

The white student will be much wealthier. His family may be able to afford private school; or they may be able to afford (and be welcomed in) a suburban area with better schools. His parents will have had more education to pass along to him. His teachers will call on him more often and discipline him less often. His guidance counselor will have higher expectations for him. The movies and TV he watches will portray people like him more positively, reinforcing his self-image as a potential success. He will not have to work as much outside of school to support himself and his family. His schooling will be disrupted by fewer moves. Police and other authority figures will treat him with more respect. His neighborhood will be safer and filled with people who have more education and better jobs. He and his family will be healthier; he will miss less school due to illness. He is more likely to be given a "preference" for admission to schools where his relatives went or contributed money. In a stupefying variety of ways, his race will give him advantages over the African-American student.

By the time they are law school applicants, the "average" white student will have gone to better schools, received better grades, and scored higher on standardized tests -- despite having been born with identical capabilities. Now, some of these unfair advantages may have continuing effects; they may make the advantaged applicant a more successful law student and lawyer than the disadvantaged applicant. But most of them are irrelevant or reversible. Educational advantage can help make you a better lawyer; but hard work, commitment, common sense, born intelligence, and interpersonal skills matter much more, and over time tend to erase the effects of prior disadvantage. What the history of inequality will do, however, is to distort our picture of the two applicants and make the white applicant seem "naturally" more qualified and talented than the black applicant, until we use affirmative action to adjust the picture.

Overcoming Disadvantage. Diversity criteria help remove the distorting, negative effects of prejudice and inequality. They also give value to an important qualification that applicants from disfavored groups share: they have experienced discrimination and injustice firsthand, and to get to be law school applicants, they have all, to some degree, overcome that disadvantage. Could there be a better qualification for a lawyer than to have experienced and overcome the countless illegalities, oppressions, annoyances, stigmas, harassments, misunderstandings, systematic exclusions, subtle put-downs, terrifying hatreds, and indignities to which our society subjects its disfavored citizens? That is an achievement with which everyone must reckon.

Opponents of affirmative action often describe it as giving a "preference" to "less qualified" applicants from disadvantaged groups. In fact, however, affirmative action mitigates -- only partially -- a massive array of preferences given to members of advantaged groups on grounds such as race, gender, sexual preference, and economic status -- the very factors which opponents of affirmative action say should be irrelevant.

I would argue that "adding to diversity" and "countering underrepresentation" are appropriate, legal "qualifications" that we can consider in judging an applicant. Even if you disagree, though -- even if you want to judge only past achievements, innate talent, and individual potential -- we still need affirmative action in order to judge those qualifications more accurately and objectively. In other words, the only way to judge individuals as individuals, and not by group classifications such as race -- the only way not to give racial and other "preferences" -- is to use diversity criteria.

Affirmative action is not just a legal remedy or a form of retribution for past wrongs. It is a vital and enduring part of fair consideration. The need for it may change, as different groups advance or decline and different prejudices wax or wane, but it will never go away. Dominant groups are not necessarily more evil, prejudiced, or blameworthy than less powerful groups. But they hold power in myriad ways that distort evaluative processes and undermine justice. Affirmative action is an indispensable way to make processes like law school admissions fair and just.