If Affirmative Action is Struck Down, These Law Schools May Point to the Future

The experience of two highly selective public U.S. law schools offers a guide for other schools to admitting diverse students should the U.S. Supreme Court ban colleges and universities from considering race as a factor in their admissions decisions, aka affirmative action,  as it is expected to do before the term ends this month.

Enrollment at the University of Michigan Law School and the University of California, Berkeley School of Law among Black, Hispanic and Native American first-year students plummeted after both states banned affirmative action in public university admissions.

But over time each school found new ways to boost their percentages of those diverse groups beyond pre-ban levels by adopting strategies that other institutions likely will mirror if the Supreme Court prohibits public and private colleges and universities from considering race when admitting students, as plaintiffs in a pair of cases before the court have asked it to do. Those range from participating in pipeline programs that introduce college students to legal careers to looking at applicants’ family income and whether they are the first in their families to attend college.

The total percentage of Black, Hispanic and Native American first-year students at Berkeley Law fell from 19% in 1996 to less than 6% in 1997—the year after the state banned affirmative action—American Bar Association data show. Enrollment of those groups among Michigan Law’s first-year classes declined from 17% in 2005 to 9% by 2008, when the school felt the full impact of the state’s 2006 prohibition on considering race in admissions, according to the ABA. Those percentages have since rebounded.

“It really dealt us a powerful blow,” Sarah Zearfoss, Michigan Law’s senior assistant dean said of the state’s affirmative action ban. “The story of these intervening 16 years has been slowly, slowly trying to come back to where we were before we had to go race blind.”

First-year Asian American enrollment held steady before and immediately after the affirmative action bans—14% for Berkeley Law and 13% for Michigan Law, according to ABA data. Those figures are now 20% at Berkeley Law and 15% at Michigan Law.

Nine states now prohibit affirmative action, and law school administrators there said they are fielding requests from out-of-state colleagues on how to enroll diverse classes when race cannot be taken into account. The Association of American Law Schools on July 10 is convening a virtual conference focused on admissions in a post-affirmative action landscape, chaired by Berkeley Law dean Erwin Chemerinsky.

Anti-affirmative action group Students for Fair Admissions sued both Harvard University and the University of North Carolina over admissions policies it alleges discriminate against Asian Americans by giving preference to Black, Hispanic and Native American applicants.

Students for Fair Admissions president Edward Blum did not respond to requests for comment on the potential impact of the suits on law student and lawyer diversity.

With a 6-3 conservative majority on the Supreme Court, it’s expected that affirmative action, which enables college and universities to consider race in admission but not impose racial quotas, will be deemed unconstitutional.

The stakes are high for the legal profession, which remains significantly less diverse than the U.S. population. ABA data shows that 19% of the country’s lawyers are people of color, compared with 40% of the overall population. By contrast, 36% of physicians are minorities, according to the Association of American Medical Colleges, and 30% of dentists are minorities, according to the American Dental Association.

Banning affirmative action would likely reduce the number of minority undergraduate students and subsequently narrow the pipeline of diverse students considering legal careers, law school admissions officials said. And if minority law student enrollment falls off, the slow but steady progress in the number of racially diverse attorneys is expected to reverse.

“If the undergraduate population becomes very white, that’s the only thing we have to work with,” said Michigan’s Zearfoss.

Alongside strategies to recruit and admit diverse students, Zearfoss said the changing demographics of the law school applicant pool have helped Michigan Law bolster student diversity—good news for law schools now facing a possible affirmative action ban. The percentage of minority applicants this year now stands at more than 46%, up from 44% the previous year, according to the latest figures from the Law School Admission Council.

Without the ability to consider an applicant’s race, Michigan Law, which last year accepted fewer than 14% of its applicants, looks to other factors including whether applicants are the first in their families to attend college; where they attended high school; and family income in an effort of admit diverse classes. Application essays can also provide a window, Zearfoss said.

The law school also prioritizes recruiting at events geared toward minority applicants and at college and universities with significant minority enrollment, Zearfoss added.

Michigan Law and Berkeley Law both voluntarily withhold information about each applicant’s race to ensure they comply with their state laws, admissions officials said.

Recovering from California’s affirmative action ban took Berkeley Law years as the school slowly learned to draw a diverse pool of applicants, admit diverse students without considering their race, and convince them to enroll at Berkeley Law, Chemerinsky said. The school, which has an acceptance rate of under 13%, collects detailed financial data from accepted students through need-based scholarship applications in order to direct financial aid to them in hopes they will enroll. But bolstering economic diversity does not yield the same level of racial diversity as considering race directly, Chemerinsky said.

Like Michigan, Berkeley Law prioritizes pipeline programs that encourage minority students to consider legal careers early on. And it has students, alumni and faculty with similar backgrounds reach out to accepted students during the admissions process, Chemerinsky said.

Both Zearfoss and Chemerinsky said achieving diversity without affirmative action requires extra institutional effort.

“My great fear is that after the Supreme Court decision, college and universities will give up on diversity,” Chemerinsky said.