"Operating on the reasonable assumption that 'diversity' means 'racial diversity...'"

Why is that a reasonable assumption? Especially at international law firms, "diversity" means much more than diversity along racial category lines.

"though I don't have links handy, in major law firms in some cities announcing that they plan to meet a hiring quota for minorities."

I would be interested in seeing evidence to support this statement.

[QUOTING original post]

That's not what the firm said. They said that the criteria is just as essential, not that it's just as important. Having a pulse is surely essential too, but that doesn't mean that having a pulse and having people actually like you will be weighed equally at those Hiring Committee meetings.

And does anyone truly believe that Morgan Lewis assigns that much importance to diversity in hiring? If so, get a grip.

EDITOR: Okay, I'll let the firm's words speak for themselves.

i dont see anything about quotas in that law.com article. it doesnt say that wal-mart, or the law firms, have a particular number in mind. as for major legal institutions, who are they worried about suing them? what's the risk of a disgruntled would-be associate suing cravath?

EDITOR: I misread something in the article, and so deleted the link. Thanks for pointing this out.

The firm is interested in hiring minorities because they are an international firm. I don't know if Bernstein is aware but there are countries where U.S. "minorities" are in the "majority" so chances are they might like to deal with someone who comes from and understands their culture. This is why, for instance, you might hire at least one Chinese lawyer to be on the team that goes to deal with your Chinese clients, for instance. I know, I know, that's crazy.

Anti-affirmative action zealots take note: employee diversity is good for business. This should have been glaringly obvious when all those amicus briefs for major corporations were filed in the Grutter Michigan cases decided in 2003. I think they were a key reason for O'Connor deciding the way she did.

Of course one can counter-argue that employee homogeneity (no minorities) was good for business in 1940, because a black workforce was bad for business due to race prejudice. And so what is "good for business" isn't necessarily right.

But clearly the days when affirmative action and diversity had to be forced on employers is over and gone with. Employee diversity is an economic good. Which must frost most anti-affirmative action zealots (as I suspect our Professor Bernstein could be classified as) because they tend to be very pro-free markets as well.

Well, suppose Wal-Mart stated that since virtually all of our managers are white men, we require that virtually all of our lawyers be white men. And then the various law firms hire mostly all white men. Any one have any difficulty imagining a court finding that unlawful?

RE: Why is that a reasonable assumption? Especially at international law firms, "diversity" means much more than diversity along racial category lines.

It's a reasonable assumption because that's precisely how law firms measure diversity. They say stuff like, "24% of our first-year associates are minorities and 52% are women." They say, "our goal is to increase our recruitment of African Americans."

They're advertising that they're ignoring Title VII. That's a dumb thing for a law firm to do (IMHO). I don't doubt that — one day — a Barbara Grutter is going to be refused a job at a law firm because she's not a member of some endangered minority.

She can go back to court, and she can win. SCOTUS says that the state has a compelling interest in promoting diversity in higher education. That does not mean that they're going to accept violations of Title VII, no matter how fashionable that may be these days.

Operating on the reasonable assumption that "diversity" means "racial diversity"

?? What about nationality, economic status, age, sex, political views? Talk about racial paranoia!

Ship erect,

You obviously haven't had any contact with American culture for the last 2 decades or you would know that "diversity" is almost always used as a codename for racial and ethnic diversity, although sometimes also including women and gays. In the case of large companies like this, however, an appropriate number of women is generally less of a problem than finding the appropriate numbers of specific racial and ethnic groups.

I think it was one of the Volokh commentators who had a post awhile back recounting how someone had asked them about diversity at their school, and they answered they thought the faculty was very diverse because it had a wide range of age groups, people from different geographic locations and other things I don't remember. The questioner responder, "No, I said DIVERSITY."

The fact that this word is almost always misused is of course something worth pointing out, but doesn't alter its misuse.

If someone wrote "She said she was pro-choice, which probably means she supports legal abortion..." would you have responded:

What about pro-choice in education! What about pro-choice in freedom of speech! Talk about paranoia!"

Again, the discrepancy in meanings is worth pointing out, but that's a different conversation.

RBG - point taken. You are a "diverse" person because of your background, not your race. Although, given that the Chinese culture is obssessed with ancestry, you might lose out in that situation anyways!

Luke, Houston Lawyer,

Stuart Taylor's latest column is on this topic, and Richard Sanders' latest article. It is here.

Diversity means something very specific to international firms. Don't kid yourselves.

I worked for an international firm right out of law school. At our orientation, topic number one for discussion was the firm's diversity efforts, defined to bolster numbers of racial minorities, women, gays and lesbians, and the handicapped. Regarding the first category, I asked if our offices in Thailand, for example, followed initiatives to hire white attorneys, who certainly are a racial minority in that country.

I never heard the answer, because I was kicked out of the meeting. But I think I can guess.

Gordo, I'm an anti-affirmative action zealot, and a free market zealot, too. My zealotries are rather easy to reconcile since Title VII is enforced to protect certain groups of people but not others. In this regard, like so many others, the market's not free.

My solution--get rid of Title VII and everybody, racists included, hires whoever they want--is likely to find not much political support. The more practical fix would be apply it to white guys, too.

Race-based hiring to promote "diversity" (as opposed to remedying a truly manifest racial imbalance) is forbidden by some federal appeals courts. E.g., Taxman v. Board of Education, 91 F.3d 1547 (3d Cir. 1996); Messer v. Meno, 130 F.3d 130 (3d Cir. 1997). Yet it continues.

Businesses trumpet "diversity" for the same reason they used to give large amounts of money to groups controlled by Jesse Jackson: public relations and appeasement.

Jesse Jackson never polled much above 30% in presidential opinion polls, and is at the left end of the Democratic Party. Businessmen, who are hardly leftwing, gave him money, despite his support for anti-business policies, such as greater regulation, unionism, protectionism, welfare, and increased wage mandates. Obviously, business's donations to Jesse Jackson are not based on agreement with him or his left-wing political agenda.

Why then did businesses give him money? Appeasement, and the desire to cater to someone who could damage their image by branding them racists.

That's the same reason they publicly support affirmative action, while privately lamenting its costs and wasteful inefficiency. Racial discrimination is bad business practice, even when whites are the victims.

Retired business executives gave money to ban affirmative action through Proposition 209 and I-200, while the companies they once worked for issued the obligatory denunciations of those very propositions. The retired business executives could afford to be candid; the businesses they used to run could not, and had to lobby liberal and minority lawmakers on a daily basis, sometimes for corporate welfare.

The belief of Gordo and some liberal judges like Justice John Paul Stevens that businesses must consider racial preferences beneficial to business success because they so claimed in amicus briefs in the Grutter v. Bollinger case is deeply naive.

Stevens has said how influenced he and the justices were in Grutter by the "dark green" amicus briefs supporting affirmative action from respectable institutions and businesses.

But that support was a sham. Businessmen usually don't defend affirmative action in private. But they do so in public in amicus briefs, because they want to cater to the legal community (lawyers strongly favor Democrats in elections that are close among the general public, and support affirmative action much more than the general public) and to judges (the Supreme Court is split on affirmative action, but most state courts are more liberal than the federal courts; and the justices who are pro-affirmative action are more willing to interpret the law "creatively" in ways that could harm businesses in the future than the typically anti-affirmative action conservative justices who rigidly cling to less flexible and manipulable modes of statutory construction, like textualism or originalism).

Justice Stevens once recognized in the League of Women Voters case that private institutions seeking government largess tell the government what they think it wants to hear, not what they truly believe, just as a child doesn't tell its mother the unpleasant truth that she is fat before asking for a cookie.

But years later, he forgot his basic insight in Grutter.

The businesses filing amicus briefs in Grutter in support of racial preferences almost all relied heavily on government contracts, corporate welfare, or trade protection, for their profits, and thus could ill-afford to piss off liberal policymakers who are not too pro-business to begin with.

They may have felt they had little choice to be candid about the costs of affirmative action.

And they were doubtless well aware that lawyers and judges, even nominally Republican judges, are more liberal on social issues than the average voter. (Bill Clinton beat the elder Bush by only about 5 percentage points in 1992, but crushed him among lawyers, according to the Harvard Journal of Law and Public Policy).

Businesses practice affirmative action to appease government officials, ward off "disparate impact" lawsuits, and avoid bad press from left-wing pressure groups.

But deep down they know it is inefficient and wasteful.

Bruce, what you describe necessarily entails conscious decisions to favor one person over another, for hiring or admission, based on the color of their skin. Diversity efforts aren't amorphous blobs that spring and survive on their own. They must be fed by active and individual race-based decisions, made by and affecting individual people.

I'm not sure if I agree that most ordinary people see the vagueness you describe as okay, but I'm quite certain they'd view the mechanical realities of diversity programs as racial discrimination. Because they are.

Also, I am curious whether you would find it ever appropriate for such efforts to be employed to the detriment of a black or female or gay student or lawyer. As someone alluded to (sort of) above, what if a white supremecist client demanded it?

lawyers and judges, even nominally Republican judges, are more liberal on social issues than the average voter

That's because more educated people are more liberal on social issues. The more educated you are, the less likely you are to believe that blacks are inferior, homos are evil, and the state should have partial title to 51 percent of the population's most private body parts.

Bill Clinton beat the elder Bush by only about 5 percentage points in 1992, but crushed him among lawyers, according to the Harvard Journal of Law and Public Policy

So. Bush beat Clinton with white males, despite losing the election by five points.

That's because more educated people are more liberal on social issues

He said lawyers and judges, not educated people.

I am white, and I was never NOT given an offer with the many law firms I interviewed with

Must have been discrimination.

If a number of institutions adopted ABA 211 which was subsequently found to be in violation of various state laws, would a student denied admission have a RICO case against the ABA and the schools?

In fact, diversity is just as essential a consideration in the selection of our attorneys as industry expertise, relevant experience, cost-effective staffing, and personal chemistry.

This could mean nothing more than that they try really hard to attract minority applicants by attending specialized job fairs, historically black law schools etc., or that they're trying pre-emptively to assure potential minority applicants that they're not a firm full of white guys where they'll feel like an outsider, or any number of other things, all of which are light years away from being a Title VII claim. I agree with the earlier poster - this is standard big firm boilerplate, nothing to see here.

Hans Bader: Your arguments have some plausibility - however, I would think that a corporation hiding its distaste for affirmative action would merely remain silent on a major Supreme Court decision on the topic, not actively file an amicus brief.

It is also interesting that the military promotes "diversity." As we have been made painfully aware with the don't ask don't tell fiasco, the military would have to be dragged kicking and screaming if they believed diversity was bad for military effectiveness instead of a benefit.

Mark Buehner - I have no problem with the market providing a solution to affirmative action issues, even if those to the left of me do. However, those to the right of me want to outlaw the market preference for diversity - as is evidenced by Professor Bernstein's start to this thread. Perhaps they don't see the ideological incompatibility of being pro free market and wanting to ban free market hiring practices they don't like. Or perhaps they just don't care.

There is no BFOQ defense for race under Title VII, though such a defense does exist in the case of gender. However, the 1979 Weber decision held that affirmative action is permissible under Title VII in a case where there has been a record of past discrimination. I am not sure that federal courts have ever held that Title VII permits the use of racial preferences purely to promote "diversity."

Ilya: Weber and Johnson do not require that an employer have a "record of past discrimination" -- or any evidence of such employer discrimination, for that matter. Indeed, that is why O'Connor (concurring) and Scalia and White (dissenting) did not approve of the majority rationale in Johnson.

David: The cases you're thinking of involved the Equal Protection Clause -- pre-Grutter. The standards for private-party affirmative action under title VII were entirely different: That's the whole point of Weber and Johnson, which have never been called into question by any Supreme Court case (or even by dicta), and which have in effect been ratified by Congress in its reenactments of title VII.

In any event, to the extent that affirmative action permissible under the EPC should automatically be acceptable in the private sector under title VII, as well, then Grutter-like diversity is certainly a permissible basis for such affirmative action.

You suggest that if a company lawyer drafted a "diversity" policy like Morgan Lewis's, "it would be recklessly inviting a lawsuit on unsettled matters at the very least." But thousands of employment lawyers would beg to differ. Post-Johnson/Weber, they have drafted such policies for virtually every major employer in America, and as far as I know there have been no such lawsuits in almost 20 years.

Marty, are you suggesting that a 5-4 (effectively on the issues you raise) ruling like Johnson, with Brennan, Marshall, and Blackmun in the majority, called into question by the E.P. cases, and by cases like Taxman, is clearly the law? And that it can even be extended beyond its narrow confines? And that Grutter, which O'Connor explicitly based on the academic freedomn and judgment of educational institutions, is readily transferable to the employment context (didn't the Court in the Price Waterhouse case reject the idea that firms are entitled to something akin to associational freedom)? I think these are all dubious assertions. (BTW, I think E.P. standards and Title VII standards SHOULD be different, but has any court so held?)

I know that employers routinely say that they value diversity in hiring, but that's pretty vague. Is it really that employers routinely say that they give "diversity" the same weight in making employment decisions as, e.g., past experience, ability to staff projects efficiently, etc., making it clear that they don't simply value diversity, but give strong preferences for those who would add diversity? I'm willing to be educated on this, but it seems unlikely to me.

If blacks aren't inferior, why do they need extra help getting into the best schools and getting the best jobs?

Answer: because of discriminatory attitudes that still persist among non-blacks, as your question demonstrates. Because blacks were only, on paper, provided with full legal equality with the passage of the Civil Rights Act of 1964, and, in practice, still suffer from the lingering effects of these Jim Crow laws and the attitudes behind them.

Christopher--

Affirmative action to get into college, affirmative action to get into law school, affirmative action to get on law review, affirmative action in law firm hiring, affirmative action in law firm promotion.

If you're claiming that a guy who has graduated from, say, Harvard and Harvard Law still needs AA to land a job, aren't you guys the ones at least implicitly saying there's something inherently wrong with him?

The Florida Bar News recently had an article saying that clients want to see diverse lawyers working on their cases (being diverse in race, gender and sexual orientation) and I just wondred how they knew a lawyer had diverse sexual orientation. Do they need to sashay into the room, drop their hand at the wrist and say something with a lisp, so the client knows for sure?

Constantin:

I am not saying that all types of affirmative action in all areas are necessary; I just think some types are. Personally, I would allow affirmative action on a case by case circumstance, based upon a particular applicant's background and life experience, and the institution's history, and would not restrict it solely to an applicant's racial or ethnic characteristics.

My point in responding to the poster's question about "racial inferiority" was merely to point out what, to me, seems obvious: blacks in the USA have been and still are subject to unequal treatment, and affirmative action is designed to address that inequality. It seems ridiculous to expect that Congress' passing of a series of laws 40 years ago changed all of the racist attitudes that kept blacks downtrodden.

I certainly agree that one can point out areas where affirmative action may not work, may be applied in an unduly unfair manner, and may produce unintended and bad results (e.g., the study by Professor Sander described in Stuart Taylor's article). Those, to me, are reasons to change it, not to abolish it and pretend there is or hasn't been any recent racism towards black people.

My own grossly oversimplified observations about the opponents of affirmative action suggest to me that they are largely:

1. US born white guys who, at some point in their life, didn't get into a school they wanted to attend, or didn't get job or promotion they wanted, and who blame it on affirmative action;

2. a few very conservative ethnic minorities who think it is demeaning to them and to their accomplishments, because they think affirmative action stigmatizes all in their ethnic or racial group, because everyone assumes that a minority only got a top job because of affirmative action (Clarence Thomas is a good example)

3. recent white immigrants who are successfully economically, politically, or academically, and who reason, "I didn't need it so why does anyone else?" (Scalia is my example for this category) and

4. racist whites, who oppose it for the same reasons they opposed integrated schools and the Civil Rights Act of 1964 (Jesse Helms, Strom Thurmond, and their core supporters)

5. white politicians, who may not be rascist but who pander to those in groups 1, 3, and 4 (GW Bush).


As for my own experiences with affirmative action, I doubt whether I ever directly benefitted from it, as I am a white heterosexual male, of non-immigrant background. I did have occasion to see it implemented in hiring, as I used to work at a very large corporate law firm (bigger than ML) that prided itself on its diversity programs. In practice, the diversity program meant that we did a lot of "outreach"--i.e., we recruited at a few law schools that were not in the top 10 or top 20 (such as a historically black school like Howard); and we had big shot or minority partners meet with minority student associations at the Top Tier schools and talk up our firm to them, and actively pursue the candidates we liked alot. But, at the non-Top Tier schools, we typically only hired the top students. My experience was that, so long as we hired students who excelled in law school, they excelled at our firm, regardless of where they went to school. I think the problems occured more when we hired the bottom-ranked students, since often their writing skills were substandard (and that is mainly what we had young associates do in the litigation department---write legal briefs and memos). They would get discouraged, and leave after two years (I think the Taylor article is true in describing this problem). Who knows, maybe the program did do them a disservice.

If a disgruntled rejected white applicant ever sued Morgan Lewis for discrimination, what would the defense be?

The defense would be that the firm didn't discriminate against the applicant for any impermissible reason, he just wasn't qualified.

I for one don't see any legal problem, as the law now stands, with Morgan Lewis' descriptions of its diversity program nor with the ABA's Standard 211. ML's program described on its website is not limited to promoting diversity by considering only racial or ethnic characteristics, and explicitly mentions economic and other background characteristics, which makes it NOT reasonable to assume that diversity equals only race.

I note thatt Professor Bernstein's responses to Marty Lederman's legal arguments as to why voluntary affirmative action programs by private employers are legal under Title VII is essentially, "Yeah, but your Supreme Court cases (Johnson, and Weber), which have never been overruled, probably will be." Until they are, they remain good law, regardless of one's views about the wisdom of those decisions, or the anti-affirmative action proclivities of the most recently appointed members of the Supreme Court. As for the ABA, I think the organization's statement about not letting a law school off the hook because the law school thinks that promoting diversity violates state or federal law is simply the ABA's way of preventing schools from doing something like hiring Professor Bernstein to tell them how they can't legally enact affirmative action programs, as an excuse for not having affirmative action programs. I do agree that the ABA shouldn't use its hammer of non-accreditation against such schools, but don't find that its behavior promotes "illegal" conduct, because I think it plain, after Grutter, that some type of affirmative action can be legally implemented at public schools and Grutter doesn't apply to private schools.

Christopher Cooke wrote: Answer: because of discriminatory attitudes that still persist among non-blacks, as your question demonstrates. Because blacks were only, on paper, provided with full legal equality with the passage of the Civil Rights Act of 1964, and, in practice, still suffer from the lingering effects of these Jim Crow laws and the attitudes behind them.
That's certainly a legitimate policy argument, but is it a defense to a charge of discrimination under Title VII? Is it an interest sufficiently compelling to overcome strict scrutiny? I'm no expert, but I'm pretty sure the answer to the second question is "no." Mr. Bernstein was asking for an answer to the first question, and after briefly looking at the cases cited by M. Lederman, it looks like there is a good chance that a private employer could prevail, if the plan were temporary.

David & Ilya:

Very short version:

1. Yes, Johnson is "clearly the law." Would the current Court come out the same way? Perhaps not. But that's true of much established precedent, e.g., Roe, McConnell v. FEC, Grutter itself, etc. That doesn't mean private actors shouldn't rely on those precedents. And employers have been relying on Johnson for close to 20 years, with absolutely no sign that it is soon to be a dead letter. In addition, there's a strong argument that Congress has ratified Weber and Johnson in its reenactments of title VII. Therefore, I would not expect Johnson to be overruled anytime soon.

2. My point is not that "diversity-based" affirmative action plans are (necessarily) directly endorsed by Weber and Johnson. But what those cases do demonstrate is that preferences are not per se impermissible, i.e., that not all preferences are "discrimination" under title VII. Moreover, those decisions do not suggest that they announce the exclusive justifications for preferences. As Justice Stevens notes in Johnson, "the [majority] opinion does not establish the permissible outer limits of voluntary programs undertaken by employers to benefit disadvantaged groups. . . . Indeed, in some instances the employer may find it more helpful to focus on the future. Instead of retroactively scrutinizing his own or society's possible exclusions of minorities in the past to determine the outer limits of a valid affirmative-action program - or indeed, any particular affirmative-action decision - in many cases the employer will find it more appropriate to consider other legitimate reasons to give preferences to members of underrepresented groups. Statutes enacted for the benefit of minority groups should not block these forward-looking considerations."

2. Even in Johnson itself, no finding of discrimination was necessary. It was sufficient that the employer was trying to address "the existence of a 'manifest imbalance' that reflect[s] underrepresentation of [the group] in 'traditionally segregated job categories.'" It is very possible that Morgan, Lewis, and many other large firms and employers, could easily satisfy this Johnson standard itself with respect to minority and female attorneys.

3. But what if Morgan, Lewis did not defend the plan on a "manifest imbalance" theory, but instead invoked only a diversity-like rationale, akin to that in Grutter? In that case, Johnson wouldn't resolve the question, but it wouldn't foreclose the affirmative action, either. And for the reasons we explained in that DOJ brief, diversity-based plans have been upheld in various settings.

4. Johnson and Weber also suggest, correctly in my view, that if an affirmative action plan satisfies equal protection standards, it almost certainly would also satisfy title VII standards, since (as Johnson and Weber themselves demonstrate) the latter is less restrictive when it comes to affirmative action programs. And if a Morgan, Lewis plan would satisfy Grutter in the case of a public employer, a fortiori it would satisfy title VII for a private employer.

Cindy Estlund's article explains all this in further, helpful detail.

Marty,

I'm still stuck on the fact that in Johnson you had two candidates (male and female) who were for all practical purposes equal, both were deemed well-qualified under the relevant hiring criteria, and that the court emphasized the "moderate" nature of the preferences. Let's say a law firm only hires white males from the top 10% of their class at select schools, but will hire members of a particular minority group who are in the bottom half of their class. By the firm's own standard hiring criteria, the latter candidates are not similarly (or well) qualified, no? And the preference is no longer at all similar to the facts of Johnson? Would Johnson have come out the same way if women in that case had been given a preference equivalent to the preference given for those with years of relevant job experience? Johnson does suggest that preferences aren't always illegal under Title VII, but even assuming it's still good law, I think its holding would have to be signfiicantly expanded to do all the work you want it to do.

And while I very much respect Cindy's work, given Price Waterhouse, I don't see how an employer can rely on Grutter and its academic freedom/autonomy rationale.

PPS In contrast to Marty's view that Weber and Johnson provide a clear safe harbor for preference policies at private employers, even in the absence of past discrimination by that employer, Estlund writes, "In the private sector as in the public sector, there has been no reliable defense of affirmative action for employers who are unwilling or unable to suggest their own complicity in past segregation and current inequities."

It's true that the Supreme Court allows more affirmative action for private employers under Title VII than public employers enjoy under the Equal Protection Clause.

But that still does not mean that "diversity" policies in employment are legal. Actually, they're illegal in certain parts of the country.

The Fifth Circuit's ruling in Messer v. Meno (1997) and the Third Circuit's ruling in Taxman v. Bd. of Educ. (1996) hold to the contrary, rejecting diversity as a justification for using race outside the context of student admissions under Title VII.

The idea that there have been no court challenges in 20 years to "diversity" policies, as M. Lederman suggests, is unfounded. There have been such challenges.

In the Lutheran Church v. FCC case, the D.C. Circuit, echoing the Third and Fifth Circuits, also strongly suggested that diversity is not a justification for using race in the employment setting, even against an equal-protection challenge.

Under Supreme Court precedent, a private employer (unlike a public employer) can use race to remedy a "manifest imbalance" in the racial or sexual composition of its workforce, but the imbalance must be substantial, as the Eighth Circuit ruled in the Maitland case in stripping public officials of qualified immunity for using affirmative action to remedy small disparities.

More importantly, any racial "imbalance" needed to support affirmative action is based on a comparison to the qualified labor pool (the pool of people who are deemed qualified for the position), not the general population -- and the qualified labor pool is typically overwhelmingly white, obviating any justification for affirmative action.

There is one area where the Equal Protection Clause seems to permit more, rather than less, affirmative action than Title VII: college admissions.

Ironically enough, if Title VII's "manifest imbalance" standard had been applied to the University of Michigan Law School's admissions program, it would have been struck down, since the qualified applicant pool was much more heavily white than the applicants actually admitted, and quite similar to the applicants who would have been admitted under a race-neutral admissions system.

While using a race-neutral admissions system focusing heavily on grades and test scores would have resulted in a lower percentage of admitted black and Hispanic applicants than their percentage in the general U.S. population, some of those applicants had such low grades and test scores that they would not be deemed part of the qualified pool, and whether there is a "manifest imbalance" is based on a comparison to the qualified pool, not the general population.

(As even some advocates of affirmative action, like certain staffers at the Law School Admissions Council concede, standardized tests like the LSAT do not discriminate against minority applicants; indeed, studies show that a black student with the same LSAT score and undergraduate grades as a white student typically performs slightly worse in law school than the white student, suggesting that test scores and grades actually overpredict minority performance in law school. Thus, standardized test scores and grades should not be ignored in assessing whether a given minority applicant is part of the qualified applicant pool, since they do not operate to weed out minority applicants who are similarly qualified to non-minority applicants).

DB opened comments?!?

So, any follow up on this?
http://www.philly.com/mld/inquirer/news/nation/14872538.htm