Law schools still count by race with American Bar Association support, despite a U.S. Supreme Court ruling, reports the Manhattan Institute.
By Eileen Griffin
Law school student applications still go through a “diversity” gantlet regardless of the discriminatory nature of the process.
Despite the U.S. Supreme Court ruling striking down the use of race-based admissions, in Students for Fair Admissions v. President and Fellows of Harvard College, some law schools still use affirmative action, a new Manhattan Institute study reports.
Affirmative action gives preference to those applicants who can provide diversity to the pool of law school students and eventually practicing lawyers. For this purpose, the American Bar Association defines diversity as “race/ethnicity, gender, LGBTQ+ status and disability status.”
After 45 years of “legalized discrimination” against Asian Americans and white Americans, the Supreme Court ruled that using racial preferences for underrepresented minorities (URMs) in college and university admissions violated the Constitution’s Equal Protection Clause.
In this case, the American Bar Association (ABA) sided with the schools, filing an amicus brief on behalf of Harvard and the University of North Carolina.
The ABA has expressed an interest in more diversity for many years, claiming that the legal interests of Black and Hispanic individuals cannot be properly represented without Black and Hispanic attorneys.
An American Bar Association profile of the legal profession reported that the proportion of attorneys who are Black, Hispanic, Asian, and Native American attorneys grew from 11.4 percent in 2010 to 14.1 percent in 2020, but white men and women are still “overrepresented” compared to the population.
In addition to the increase in the number of lawyers from racially and ethnically diverse backgrounds, some law schools are enrolling a majority of their students from those groups, according to U.S. News and World Report.
Enrollment at several historically black colleges is largely black. At Howard University, for example, 79 percent of their law school students are black.
Twenty-three law schools were identified as “racially and ethnically diverse,” with an average of 70 percent of students coming from diverse backgrounds.
In June 2023, the Supreme Court held that using race and ethnicity in admissions is unconstitutional, the Manhattan Institute reports. In their amicus brief, the ABA claimed that a diverse student population would “break down” racial biases and stereotypes and would train lawyers to avoid being influenced by biases.
“Notably, the Court struck down Harvard and UNC’s race-conscious admissions policies largely because it found these policies to encourage, rather than “break down,” racial biases and stereotypes,” writes Renu Mukherjee, Paulson Policy Analyst for the Manhattan Institute.
After the ruling was issued, the ABA responded with clear disagreement with the court’s position. The organization, along with some state and local bar associations, continued to find ways of including race and ethnicity in admissions.
The ABA, along with the New York State Bar Association and the New York City Bar Association, advised law schools to keep utilizing racial preferences in admissions, hiring, and promotions, the report concludes.
Training was offered, online videos were made available to the public, and events were hosted both virtually and in-person. These presentations and materials addressed building “an equitable society” and creating a diverse legal profession while working around the court ruling.
“If law schools and law firms are to act prudently—and constitutionally—they should ignore the calls by ABA, NYSBA, and NYCBA to double down on racial preferences in admissions, hiring, and promotion,” Mukherjee writes.
“Instead, if law schools and law firms are interested in providing low- and middle-income students with greater access to the legal profession, while also teaching them a valuable lesson on how to be in control of their own futures, these institutions ought to implement race-neutral pipeline programs.”
Congress should take responsibility for correcting race-based admissions policies, writes Dan Morenoff, adjunct Fellow at the Manhattan Institute and executive director at the American Civil Rights Project in the New York Post.
Congress should act to remedy the conflict between the unconstitutionality of affirmative action and federal funding that encourages affirmative action.
Federal programs provide grant money to schools who demonstrate diversity. The federal government allocates $1 billion of taxpayer money to colleges and universities who certify as “racially balanced.”
Schools with a population conforming to the prescribed allocation of 40 percent black, 25 percent Hispanic, 20 percent Alaskan native, or 10 percent native Hawaiian are eligible for significant financial rewards.
“Eventually, a lawsuit may force Congress to remedy this situation,” Morenoff writes. “But Congress should never wait for the courts to protect the Constitution from its own legislation. Instead, it should act now to conform our laws to the Constitution’s requirements.”
“Whatever route it chooses, though, our legislators should end federal discrimination between schools based on the race of their students. Not only is this ineffective—it’s unconstitutional.”
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