Prof. Mike Dorf has a post at Dorf on Law describing the brief he coauthored on behalf of the Association of American Law School in Fisher v. University of Texas. The gist of the brief is that if the Supreme Court reasons that Texas may not engage in affirmative action preferences because its race-neutral ten-percent plan already created a “diverse” class, this could mean that all institutions of higher education, including law schools, that seek racial and ethnic diversity would need to replace their current admissions policies with a rote, percentage-based admissions system to comply with the Constitution and federal law.
The oddity is that law schools already mostly use a rote admissions system. The brief argues in its introduction as follows:
To build excellent, diverse classes, law schools do not reduce any particular candidate to a number or a percentage. Instead, following this Court’s guidance in Grutter v. Bollinger, 539 U.S. 306 (2003), law schools evaluate each applicant’s record holistically, counting such academic factors as success in analytically demanding majors, intellectual curiosity and improvement over time, as well as such other factors as veteran status, work experience and hardships overcome. A mechanical admissions process would render such criteria irrelevant.
The brief later elaborates on this point in great detail. I really don’t know how Dorf and his co-authors can claim this. It’s common knowledge that law school admissions at the vast majority of law schools comes down almost entirely to GPA and LSATs, with allowances for affirmative action preferences, relatives of generous alumni, and, at state universities, for politically connected applicants. This was largely true even when I went to law school over twenty years ago, but concern over U.S. News rankings, which heavily weight GPA and LSAT, have made it even more so.
Let’s say you’re a Caucasian or Asian applicant to Podunk Law School, which is targeting a 162 LSAT and 3.5 GPA [update: Median, U.S. News only considers medians] this year. You majored in Physics in Harvard, show great intellectual curiosity, worked at Los Alamos for five years doing top-secret research, grew up impoverished in Appalachia, and had a much better GPA toward the and of your college career than at the beginning. Unfortunately, your LSAT score is only 160 and your GPA, though great for a Harvard Physics major, was only 3.27.
Meanwhile, your cousin is also applying to Podunk. Her parents are rich, she attended a fancy private high school, she majored in Cultural Studies at a fourth-rate college,has never has worked a day in her life, and never reads anything more intellectually serious than Cosmo. But she managed to achieve a 3.52 GPA, and (with the help of Princeton Review and private tutoring) a 162 on her LSATs.
Your cousin is very likely getting in to Podunk, and you almost certainly are not. I’m in no way defending this situation, which in fact is indefensible; but it’s the way it is. (A few years back, Podunk would likely have offered you admission to its evening program, because U.S. News only counted full-time students, but that loophole has been closed.)
In fact, I thought the Supreme Court, if anything, got it backwards in Grutter and Gratz in approving Michigan Law School’s affirmative action policies, and invalidating the undergraduate preferences. Law schools, even elite law schools like Michigan, generally don’t care about applicants’ athletic prowess, or musical talent, or anything beyond raw LSAT and GPA scores, making the claim that their affirmative action programs are about “diversity” in the broad sense that Justice Powell intended in Bakke quite dubious. By contrast, undergraduate schools really do strive to fill their sports teams and bands, nurture interesting but idiosyncratic individuals, get students from all over the country and the world, and so on, making their desire to also have racial diversity via affirmative action preferences seem much less likely to be based solely or primarily on non-diversity rationales the Supreme Court has found to be illicit.
In any event, the AALS brief describes an idealized law school admissions process that exists at few if any law schools (Yale, I think, has so many hyper-qualified applicants to choose from for its small class, and such an idiosyncratic process with significant faculty input, that it may come close). Not surprisingly, the brief fails to cite any studies or data showing that law schools do, in fact, consider “each applicant’s record holistically,” and I’m surprised that the AALS would put forth this idealized process as it were standard practice. At best, the brief could honestly argue that an unfavorable decision in Fisher would prevent any law school that chose to deviate from the “rote” norm from doing so.