Indiana Law Review


The challenge to Diversity in Legal Education

Herma Hill Kay*

Introduction: From Segregation to Affirmative Action

I would like to address the challenge of maintaining diversity in legal

education. For a few law schools, including my own, recent decisions and
legislation in this area have resulted in a struggle to maintain diversity without

using race or ethnicity as criteria for admission. I do not offer here a paper on the

constitutionality ofaffirmative action. Instead, I will speak in somewhat personal

terms, because I believe that all ofus must examine our own beliefs, feelings, and
experiences about these matters before we can understand and communicate our
views to each other.

I was born in South Carolina in 1934 and, except for a brief stint in Texas,
spent my childhood there. In South Carolina I lived in a segregated society and
attended first grade in an all-white school. The churches where my father served
as minister had no black members. My mother, a third-grade school teacher, had
no black students in her class. My earliest impression of the black people who
lived in my rural community was that they worked as servants, tenant farmers,
or in other low-income jobs. Except for the black ministers who sometimes met
with my father, I do not remember ever having seen a black man wearing a suit
and tie.

Although I did not realize it at the time, the South Carolina ofmy childhood
also offered few options to white women. My mother had been a grammar
school teacher when she and my father married. After taking a few years off
following my birth, she resumed teaching when I was about three—a rare
occurrence for white women with young children in those days. When my sixth
grade Civics teacher suggested that I go to law school (after a class debate in

which I successfully argued the negative of the question, "Resolved, The South
Should Have Won the Civil War"), my mother did not encourage the idea. She
told me in no uncertain terms that women could not support themselves in the
practice of law and that I would be better off with a teacher's credential.

I graduated from high school in 1952 and left South Carolina, never to return.

I entered college at SMU where, out of deference to my mother, I enrolled in
elementary education courses, but soon changed my major to the more
challenging subject of English Literature, with a minor in Philosophy. At SMU,
for the first time, I had black and a few Asian and Mexican-American classmates.
Brown v. Board of Education* was decided in 1954 as I was finishing my
sophomore year. Reflecting on discussions of that landmark case and its
consequences, I came to see the segregated South of my childhood as a society
that was unfair and unjust. I was even more determined to realize my goal of

* Barbara Nachtrieb Armstrong Professor of Law, University of California-Berkeley

School of Law (Boalt Hall). B.A., 1956, Southern Methodist University; J.D., 1959, University
of Chicago Law School. The author joined the faculty in I960 and served as dean from 1992 to
2000.

I. 347 U.S. 483(1954).



56 INDIANA LAW REVIEW [Vol. 34:55

attending law school so that I could help change things for the better. In my
innocence, I did not yet realize that I might encounter obstacles to my plans
because I was a woman.

When I started law school in 1956 at the University of Chicago, I was
particularly interested in the civil rights cases we studied in Constitutional Law
and in the legal interpretation of the most fundamental concept of our nation's
vision of itself: the concept boldly proclaimed in 1776 in the Declaration of

Independence that "all men are created equal." I learned that less than 1 00 years
after those words were included in the Declaration ofIndependence, the Supreme
Court held that they did not apply to black men because, as Chief Justice Taney
observed in DredScottv. Sandford,

2
public opinion in 1 776 would have been that

members of the black race "had no rights which the white man was bound to
respect."

3

Dred Scott interpreted the words of the Declaration of Independence too
narrowly to encompass the fundamental principle of equality they had appeared
to enshrine. Less than ten years after the decision was announced, the true
meaning of those words was tested on the battlefield. As President Abraham
Lincoln said in the opening sentences of his Gettysburg Address on November
19, 1863:

Fourscore and seven years ago our fathers brought forth on this

continent a new nation, conceived in liberty, and dedicated to the
proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation,
or any nation, so conceived and so dedicated, can long endure.

4

After the Civil War had been fought, the South defeated, and slavery
abolished by the Thirteenth Amendment,5 a new guarantee of equal protection
was enshrined in the Fourteenth Amendment,6 and the Supreme Court was again
called upon to consider the legal concept of racial equality. Once more, the

2. 60 U.S. 393 ( 1 856) (rejecting the claim of a Negro slave that he had been freed when

his master took him from a slave state into a free state and holding that petitioner was not a citizen

of the United States who was competent to sue in the federal courts).

3. Id. at 407. See Pauline Maier, The Strange History of "All Men Are Created Equal,
"

56 Wash. & Lee L. Rev. 873 (1999) (discussing the contemporary understanding of the text).
4. J.W. Fesler, Lincoln's Gettysburg Address (Nov. 19, 1943) (a paper read before

the Indianapolis Literary Club on the eightieth anniversary of the delivery of the Gettysburg

Address), in Indiana Magazine ofHistory, XL, No. 3, Sept. 1944.

5. U.S. Const, amend. XIII, § 1 ("Neither slavery nor involuntary servitude, except as a

punishment for crime whereof the party shall have been duly convicted, shall exist within the

United States, or any place subject to their jurisdiction.").

6. U.S. Const, amend. XIV, § 1 ("No State shall make or enforce any law which shall

abridge the privileges or imunities of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.").



2000] THE CHALLENGE TO DIVERSITY 57

Court failed to rise to the occasion. In Plessy v. Ferguson,
1
a majority held that

the equal protection clause did not invalidate a Louisiana statute which required

black and white citizens to travel in separate railroad carriages.
8
Justice Brown

wrote:

We consider the underlying fallacy of the plaintiffs argument to
consist in the assumption that the enforced separation of the two races

stamps the colored race with a badge of inferiority. . . . If one race be

inferior to the other socially, the constitution ofthe United States cannot

put them upon the same plane.
9

Based on my own experience growing up in rural South Carolina, I did not
agree that plaintiffs argument was fallacious. I had seen first hand the countless

indignities imposed on black people: the separate bathrooms, the "black balcony"

in movie theaters, the separate lunch counters, even the separate drinking

fountains. All these so-called "separate but equal" facilities added up to an
unmistakable message: white and black must be kept separate because black is

inferior. Even before I encountered the phrase "badge of servitude"
10

in Justice

Harlan's dissenting opinion, 1 recognized the weight of its daily oppression. The
majority opinion in Plessy seemed to me to be a repudiation ofthe great principle
for which the Civil War had been fought.

The Plessy Court' s flawed interpretation ofthe Fourteenth Amendment was
finally corrected by the case that was decided while I was in college, Brown v.
Board ofEducation," which repudiated Plessy' s "separate but equal" doctrine.

12

In this opinion, Chief Justice Warren examined the effect of segregation on

public education. He drew on the finding of a Kansas court that:

Segregation of white and colored children in public schools has a

detrimental effect upon the colored children. The impact is greater when
it has the sanction of the law; for the policy of separating the races is

usually interpreted as denoting the inferiority of the negro group. A
sense of inferiority affects the motivation of a child to learn.

Segregation with the sanction of law, therefore, has a tendency to

(retard) the educational and mental development ofNegro children and
to deprive them ofsome ofthe benefits they would receive in a racial(ly)

7. 163 U.S. 537(1896).

8. See id at 552.

9. Id. at 551-52.

10. See id. at 555 (Harlan, J., dissenting). I agree entirely with Professor Jed Rubenfeld's

reading ofthe paradigm racial separation equal protection cases from Plessey to Brown and beyond.

The system they scrutinized, and ultimately invalidated, was a caste system purposefully designed

to make African-Americans a class of untouchables. See Jed Rubenfeld, Affirmative Action, 107

Yale L.J. 427, 455-61(1997).

11. 347 U.S. 483(1954).

12. Id at 494-95.



58 INDIANA LAW REVIEW [Vol. 34:55

integrated school system.
13

I am able to confirm this analysis based on my own experience ofsegregated
schools. Living in a society where children my own age were sent to different
schools felt very strange to me. It seemed that their world was closed to me just
as mine was closed to them. Looking back, I believe I was deprived of the
benefits ofassociation in an educational setting with the black children who were
my contemporaries. Had I not been denied that opportunity, I might have come
to understand much earlier the injustice of the society in which I lived and
studied.

In its subsequent opinion in Brown II, the Court ordered that its ruling be
implemented "with all deliberate speed."

14
This order was resisted, however,

both in the courtroom and at the ballot box, for ten long years. Professor Walter

E. Dellinger, III, recalls being in a seventh grade classroom in North Carolina on

the day Brown was decided and hearing his teacher declare in solemn tones,
"Children ... the Supreme Court has ruled. Next year you will go to school with
colored children."

15
Dellinger, who was thirteen at the time, went on to recount

his personal experience of the meaning of "all deliberate speed":

Our teacher's assumption about the effect of Brown v. Board of
Education on the racial composition of our public school turned out to

be erroneous. We did not "go to school with colored children" the next
year as he had naturally assumed. Or the year thereafter. In fact, I
finished junior high and graduated from a still all-white high school in

1959 without ever having attended school with a black child. By the
time I finished four years at the state university, the public schools of

North Carolina remained almost entirely segregated; more than 99
percent of the state's black children attended all-black schools. It was
not until the 1 972-73 school year (I had by then been through law school,

clerked, and become a law professor) that there was finally a meaningful
end to the de jure segregation of the public schools of the rural and

small-town South.
16

While the rural South persisted in opposing desegregation in the public

schools, law school faculties were leading the way toward proactive measures
designed to increase diversity in legal education and, as a consequence, in the

legal profession. Terrance Sandalow recalls that "[d]uring the academic year

1965-66, at the height of the civil rights movement, the University of Michigan

Law School faculty looked around and saw not a single African-American

13. Id. at 494 (citations omitted).

14. Brown v. Bd. of Educ, 349 U.S. 294, 301 (1955).

1 5

.

Walter Dellinger, A Southern White Recalls a Moral Revolution, WASH. POST, May 1 5,
1994, at CI.

16. Id. See also Richard E. Jones, Brown v. Board of Education: Concluding Unfinished

Business, 39 Washburn L.J. 184, 195 (2000) (pointing out that Brown was not finally implemented

in the Topeka, Kansas, school district until the fall of 1996).



2000] THE CHALLENGE TO DIVERSITY 59

student."
17
At Berkeley, where Dean Henry Ramsey remembers having been the

only African-American in the entering class of I960,
18

the assassination of

Reverend Martin Luther King, Jr. on April 4, 1968 shocked the faculty into

action. Shortly thereafter, both schools initiated programs designed to increase

their minority enrollment. At Michigan, "the faculty directed its admission

officer to recruit black applicants and, if necessary to achieve a reasonable

number of blacks in the student body, to admit black applicants who seemed
likely to complete the School's program whether or not they satisfied the

admission standards required of other applicants."
19

At Berkeley, the faculty

decided to give "special consideration" to minority applicants, with the result that

the percentage of minority students (chiefly African-Americans, Chicanos and

other Hispanics) grew from seven percent of the entering class in 1968 to thirty-

three percent in 1972.
20

It bears emphasizing that these practices were adopted before the

Congressional mandate of non-discrimination in employment, Title VII of the

Civil Rights Act of 1964,
21 was extended to higher education in 1972,

22
or even

before either the American Bar Association (ABA)23 or the Association of
American Law Schools (AALS)24 required law schools to undertake efforts to

1 7. Terrance Sandalow, Identity and Equality: Minority Preferences Reconsidered, 99

Mich.L. Rev. 1874, 1 874 (1999) (reviewing William J. Bowen& Derek Bok, The Shape of the
River (1998)).

1 8. See Henry Ramsey, Jr., Closing the Door on Tomorrow s Leaders, WASH. POST, Aug.

13, 1997, atA21.

1 9. Sandalow, supra note 1 7, at 1 874.

20. See Feature, The History of Affirmative Action at Boalt, BOALT HALL TRANSCRIPT,

Spring 1995, at 21, 22.

21. 42 U.S.C. §§ 2000e-15 (1999).

22. See Higher Education Amendments Act of 1972, Pub. L. No. 92-261, § 3, 86 Stat. 103

(1972).

23

.

See ABA Standards FOR Approval OF Law SCHOOLS, Standard 211(1 999) (adopted
in 1980 as Standard 212).

Equal Opportunity Effort. Consistent with sound legal education policy and the

Standards, a law school shall demonstrate, or have carried out and maintained, by

concrete action, a commitment to providing full opportunities for the study of law and

entry into the profession by qualified members of groups, notably racial and ethnic

minorities, which have been victims of discrimination in various forms. This

commitment typically includes a special concern for determining the potential ofthese

applicants through the admission process, special recruitment efforts, and a program that

assists in meeting the unusual financial needs of many of these students, but a law

school is not obligated to apply standards for the award of financial assistance different

from those applied to other students.

Id.

24. See ASSOCIATION OF American Law SCHOOLS, 1 999 HANDBOOK, Bylaw 6-4(c) ( 1 999)
[hereinafter AALS 1999 HANDBOOK]. "Diversity: Non-Discrimination and Affirmative Action.

A member school shall seek to have a faculty, staff, and student body which are diverse with



60 INDIANA LAW REVIEW [Vol. 34:55

provide equal opportunity for students of all races. As Berkeley Professor Jan
Vetter, who served on the school's first affirmative action committee, put the
matter in 1995, "[w]e thought it was a good idea. We still do."25

Ofcourse, not everyone agreed. Professor Lino A. Graglia ofthe University
of Texas Law School was an early and prominent opponent of race-conscious
admission programs.

26 By the early 1970s, when Del linger felt the mandate of
Brown II had finally ended segregation in public grade and high schools even in
the rural South,

27
legal education, along with other professional schools and

many undergraduate programs had adopted affirmative action admission
programs to ensure integration in higher education.

28

The law schools did not attempt to disguise or misrepresent the nature of
these programs. Thus it is surprising that Professor Stephan Thernstrom has tried
to suggest otherwise by quoting out of context a statement I made about
affirmative action in hiring on the McNeil-Lehrer Newshour. He quotes me as
saying that affirmative action is a matter of having "to choose between two

equally qualified persons."
29

This part ofthe quote is accurate, but its context is

distorted. Thernstrom applies it to admissions decisions, and characterizes it as

a misrepresentation of the relative qualifications of white and minority law

school applicants.
30

This characterization, however, conflates my answers to two

respect to race, color, and sex. A member school may pursue additional affirmative action
objectives." Id.

25. Feature, supra note 20, at 21. Thus, contrary to Professor Richard Epstein's assertion

that the AALS imposed a requirement of diversity on its member schools, see Richard A. Epstein,
Affirmative Action For The Next Millennium, 43 LOY. L. REV. 503, 520 (1 998), the policy favoring

diversity in legal education began in the law schools and was adopted as AALS policy by a vote of
the representatives of all member law schools. See AALS 1 999 HANDBOOK, supra note 24. To be
sure, as Epstein charges, once AALS Bylaw 6-4 (c) was adopted, "[diversity ceases to be an option
and has become a command." Epstein, supra. But Epstein, as a self-proclaimed libertarian, surely

realizes that a law school's membership in the AALS is voluntary.
26. See Lino A. Graglia, Special Admission ofthe "Culturally Deprived" to Law School,

119 U. PA. L. REV. 351 (1970); cf Derrick A. Bell, Jr., In Defense of Minority Admissions

Programs: A Response to Professor Graglia, 1 19 U. Pa. L. Rev. 364 (1970).

27. See Dellinger, supra note 1 5, at C I

.

28. See Sandalow, supra note 17, at 1874.

29. Stephan Thernstrom, Diversity and Meritocracy in Legal Education: A Critical

Evaluation of Linda F. Wightman's "The Threat to Diversity in Legal Education,
" 15 CONST.

Comment. 11,20(1998).

30. See id. Professor Thernstrom recounts my appearance with the following:

Dean Herma Hill Kay ofBoalt Hall was asked on the McNeil-Lehrer Newshour in April

1 995 why there was a "widespread perception that the minorities who are admitted with

those special considerations are the result of standards being lowered?" Dean Kay

answered, "Well, I don't think that it applies to the universe that I know best, which is

the law school." There was no lowering of standards, she maintained. "When you have

to choose between two equally qualified persons," it was appropriate to pick the "person

of color" in order to "do something about the really fundamental problem of racial



2000] THE CHALLENGE TO DIVERSITY 6

1

separate questions, quoted below,
31

the first dealing with admissions, and the

second—in which the quoted phrase appears—dealing with the very different
matter of hiring. In hiring decisions, individuals are often compared to each

other, for only one will get the job, and the differences between them may be
quite small. In the admissions context, however, each applicant is measured

prejudice in this society."

Such references to "equally qualified" candidates conveyed the impression that the

minority students who were being admitted to the most prestigious and selective law

schools as a result of affirmative action had exceptional academic records, but could

only boast of 3.75 rather than 3.78 grade averages, perhaps, and LSAT scores in the

94th rather than the 96th percentile.

Id. See also Stephan Thernstrom, The Scandal ofthe Law Schools, COMMENT., Dec. I, 1997, at

27 (beginning the article with a reference to this same quoted phrase, and connecting it to

admissions policies).

3 1 . See Transcript of McNeil-Lehrer Newshour, Series -Affirmative Action 9, 10-11 (Apr.

24, 1995) (on file with author).

Ms. Hunter-Gault: Well, why is it that there seems to be a widespread perception that

the minorities who are admitted with those special considerations are the result of

standards being lowered?

Dean Herma Hill Kay: Well, I don't think it applies to the universe that I know best,

which is to law schools. We have a very low academic disqualification rate here, and
it stands to reason if you're so selective, applying [enrolling] only 270 out of over

5,000, you really have a choice, a wide choice, and we don't admit anyone that we think

will not be academically successful. Now there has, ofcourse, been grade inflation over
the past several years, and white students who were admitted here 1 years ago probably

wouldn't be admitted in the competition of this class today.

Ms. Hunter-Gault: Well, do you understand at all the argument of the so-called angry

white male? I mean, do you have any sympathy for that?

Dean Herma Hill Kay: I do have sympathy for it. I think that people feel that they are

not themselves prejudiced, that they are being asked to pay for a social obligation that

the burden of this falls on them. When the voluntary affirmative action programs were

begun, the economy was expanding, and it seemed possible to make way for all persons.

The Supreme Court in its opinion in the Weber [sic] case [United Steelworkers of

America v. Weber, 443 U.S. 193 (1979)] pointed out that minority hires were not

displacing majority hires, and as we're getting into the shrinking economy, that's no

longer possible. And when you have to choose between two equally qualified persons

and it's always the white person who gets de-selected, obviously, people to whom that
happens feel that it's unfair. And yet, if you are going to continue to try and do

something about the really fundamental problem of racial prejudice in this society,

there's no turning back, at least until we've made further advances.

Id.



62 INDIANA LAW REVIEW [Vol. 34:55

against the entire pool, and the range of qualifications is much broader.
Following Thernstrom's inaccurate portrayal of my statement, another
commentator cited it as an example of a "disingenuous" description by an
academic administrator regarding "the extent of the preference accorded

minorities under race-sensitive admission policies, suggesting that race serves

only as a tie-breaker or, at most, to overcome small differences among
candidates."

32
This description, too, is inaccurate. As shown below, I stated

quite clearly in my testimony to the University of California (UC) Board of
Regents in May 1995 that one result of ending affirmative action in law school
admissions would be a dramatic decline in the number ofminority students in the
entering class of my school.33

I. The Attack on Affirmative Action in the Mid- 1 990s

Little did I know when, as a law student at Chicago, I read the words ofChief
Justice Warren in the Brown case, that one day I would be given the opportunity
to serve as Dean ofhis law school, UC-Berkeley (Boalt Hall), and to do so at the
very moment when its program of educational diversity was dismantled. For
nearly twenty years, Justice Powell's opinion in Regents of the University of
California v. Bakke,

34
had been the constitutional basis for achieving educational

diversity in higher education. Responding to a reverse discrimination challenge

by an unsuccessful white male applicant to the UC-Davis Medical School, Justice
Powell used a strict scrutiny standard to test the school's special admissions

program, which set aside sixteen out of 1 00 seats for minority students.
35

Powell

found the program defective under that standard and suggested that a race-

conscious program designed to produce educational diversity such as the one in

use at Harvard College, would meet the strict scrutiny standard.
36

Thus, the Boalt

Hall faculty restructured its special admissions program in light of Justice

Powell's opinion to conform to its guidelines for achieving educational diversity

consistent with constitutional standards and set a target range of twenty-three

percent to twenty-seven percent ofthe entering class for whom race and ethn icity
would count as factors in the admission process.

37
After I became Dean, the

faculty once again examined the basis for its affirmative action policies with the

help of a Task Force on Admissions Policy chaired by Professor Rachel Moran
and comprised of faculty, students, and alumni.

38 The Task Force recommended,

32. Sandalow, supra note 1 7, at 1902 & n.67.
33. See Herma Hill Kay, Presentation to the Board of Regents on Law School Admission

(May 18, 1995) (on file with author).

34. 438 U.S. 265(1978).

35. See id at 290-91.

36. See id. at 3 16-18.

37. See Feature, supra note 20, at 22.

38. The Task Force was appointed as part of a conciliation agreement entered into between

Boalt Hall and the Office for Civil Rights of the U.S. Department of Education on September 25,

1992, resulting from a compliance review that began in 1989.



2000] THE CHALLENGE TO DIVERSITY 63

and the faculty adopted on May 6, 1993, a pedagogical theory ofcritical mass as
the core element of a diverse educational experience.

39

A. The UC Regents ' Resolutions: SP-1 and SP-2

Boalt's 1993 admissions policy was in effect when the Board of Regents of
UC began its re-examination of the University's affirmative action policies in
1994. The Board acted in response to the complaints ofa family whose son had
been denied admission to the UC-San Diego Medical School.40 During 1 994-95,
the Board heard testimony concerning the admissions practices of the colleges

as well as graduate and professional programs ofthe University. I was asked to
present testimony before the Board at its May 1995 meeting concerning the
admissions policies ofthe three UC campus-based Law Schools: Boalt, UCLA,
and Davis. Accordingly, I described Boalt's revised policies and procedures, and

pointed out that these practices had first been applied to the entering class of

39. See Faculty Policy Governing Admission to Boalt Hall, REPORT OF THE ADMISSIONS

PolicyTask FORCE 1 993 (Boalt Hall, Berkeley, Cal.), Aug. 3 1 , 1 993, at 3, 6-7 [hereinafter Faculty

Policy].

The Law School is proud of its past success in training academically excellent, diverse

student bodies and seeks to build on this experience in achieving its present pedagogical

objectives. Therefore, it is the policy of the School to admit a class with diverse

characteristics, in a manner that takes into account past admissions experience,

pedagogical considerations pertaining to the dynamics of critical mass, and annual

fluctuations in qualified applicant pools. Given the dynamics of critical mass, the Law

School sets as a goal the admission of an entering class that includes roughly 8-10%

African Americans, 8- 1 0% Chicanos/Latinos, 8- 1 0%Asian-Americans/Pacific Islander
Americans, has a significant presence ofNative Americans, and continues, as in recent

years, to have meaningful numbers of disabled and older students and a rough parity

ofmen and women, as annual fluctuations in qualified applicant pools allow. The class

as a whole should be diverse with respect to regional background, life experience, and

academic training; and internally within racial and cultural background. To achieve

these goals, diversity factors are to be given weight in admissions decisions if it appears

that without such weight the desired diversity would not be achieved. Yet, no student

can be isolated from competition for any place in the class and this policy does not

prescribe fixed maximum or minimum numbers of applicants to be admitted from any

particular group. Rather, the Admissions Director and the Admissions Committee

should weigh numerical and non-numerical evidence ofqualifications for each applicant

against the combined qualifications of competing applicants. No applicant will be
admitted unless he or she appears capable of completing the Law School's course of

instruction without falling into serious academic difficulty.

Id.

40. See WardConnerly, Creating Equal: My FightAgainst Race Preferences 1 17-
26 (2000) (describing his meeting with Mr. and Mrs. Cook and the November 1994 meeting ofthe

Board of Regents where their charges were first discussed); John E. Morris, Boalt Hall's

Affirmative Action Dilemma, Am. Law., Nov. 1997, at 4, 5.



64 INDIANA LAW REVIEW [Vol. 34:55

1994.
41

In that year, Boalt had an applicant pool of 5249 candidates, of whom
fewer than one in six were admitted, and a class of 269 students was enrolled.
Women constituted forty-eight percent ofthe class, while fifty-two percent were
men. The class included twelve percent African-Americans, thirteen percent
Hispanic/Latinos, fourteen percent Asians, one percent Native Americans, and
sixty percent Caucasians and others (including those who declined to state such
information). I pointed out that if we were to admit students only by reference
to their index numbers (a combination of UGPA and LSAT scores)—which we
at Boalt had never done for any of our students—the number of non-Asian
minority students would have dropped in the 1994 entering class from sixty-six
to nine, and the total percent ofminority students (including Asians) would have

been reduced from forty percent to fourteen percent. It is obvious that these

numbers would be insufficient to create a critical mass ofminority students who
could help sustain the robust exchange of ideas necessary for a diverse education

in law. I urged the Regents to allow the Law School's admission policy to be
continued.

On July 20, 1995, the Regents adopted two Resolutions: SP-1, dealing with
admissions, and SP-2, dealing with employment and contracting. The critical
language of SP-1 is found in Section 2, which provides that: "Effective January

1, 1997, the University of California shall not use race, religion, sex, color,

ethnicity, or national origin as criteria for admission to the University or to any

program of study."
42

In response to this Resolution, the Boalt faculty removed the target goals

established in its 1993 Statement on Admissions Policy,
43
and adopted a new

Statement of Policy on April 22, 1996 which, as amended in December 1997,
currently reads in part as follows:

In making admission decisions, the School gives substantial weight

[changed from "greatest weight"] to numerical indicators (i.e.,

undergraduate grade point averages and Law School Admission Test
scores). Yet numbers alone are not dispositive. The Law School
considers other factors as well for all applicants. For example,

substantial consideration is given to letters ofrecommendation, graduate

training, special academic distinctions or honors, difficulty of the

academic program successfully completed, work experience, and

significant achievement in non-academic activities or public service. If

it appears that an applicant has experienced disadvantages, this will be

considered in . . . assessing the applicant's potential to distinguish

himself or herself in the study and practice of law and to contribute to

the educational process and the profession.
44

4 1

.

See Kay, supra note 33.

42. University of California Regents Resolutions SP-1 and SP-2 (July 20, 1995). See

CONNERLY, supra note 40, at 147-58 (describing the Regents meeting of July 20, 1995).

43. See Faculty Policy, supra note 39.

44. Faculty Statement on Admissions Policy, BOALT HALL CATALOGUE & APPLICATION



2000] THE CHALLENGE TO DIVERSITY 65

We also expanded the personal statement our applicants are asked to submit
from two pages to four pages and invited them to "separately discuss how [their]
interests, backgrounds, life experiences and perspectives would contribute to the

diversity ofthe entering class."
45

This admissions policy and its accompanying

revised procedures were used to admit the entering class of 1997, the first that

was admitted to Boalt Hall under the Regents' resolution of 1995.

Anyone who read a newspaper or watched TV during the late summer and
early fall of 1 997 was aware that the impact ofSP-1 on the entering class of 1997

was even more drastic than I had predicted in my 1 995 testimony to the Regents.
We enrolled an entering class of 268 students that contained only one African-
American (a student who was admitted in 1 996, but deferred enrol lment unti I this
year), no Native Americans, fourteen Chicano/Latino students, and thirty-eight

Asians, for a total of twenty percent people of color—down from thirty-three
percent in 1 996. Even these numbers, however, mask the full impact of SP- 1 on
the entering class of 1 997. Ifwe exclude all ofthe twenty-five students who had
been admitted in prior years but who deferred their enrollment until 1997, and
look only at applicants admitted for the first time in 1997 who chose to accept
our offer, our class had exactly seven non-Asian minority students: three

Chicanos and four Latinos. (I had predicted nine.) Our admit/offer numbers
were much higher—we admitted fifteen African-Americans, twenty-four
Chicanos, fourteen Latinos, two Native Americans, and 1 13 Asians—but our
yield was extremely disappointing. Nor was that outcome very surprising. The
competition for these students is fierce. We know, for example, that of the
fifteen African-Americans, four went to Harvard, two each went to Yale and

Stanford, and one each went to Columbia, Duke, and UCLA, while one chose
Business School over Law School.46 The three UC campus-based law schools'
responses to SP-1 are discussed in Part II.

47

B. The Centerfor Individual Rights Leads the Attack on Affirmative

Action in the Courts

L The Hopwood Litigation in Texas.—On September 29, 1992, four days
after Boalt Hall signed its conciliation agreement with the Department of

Education, a white woman named Cheryl Hopwood and three white men filed a
reverse discrimination suit challenging their denial ofadmission to the University

of Texas Law School on the ground that the Law School's policy of favoring
Black and Mexican-American applicants violated the Equal Protection Clause

1 999-2000 (Boalt Hall, Berkeley, Cal.), 1 999, at 74 (This statement was revised in December 1 997

to delete the phrase "that adversely affected his or her past performance" following the word

"disadvantages" and to add the concluding phrase "and to contribute to the educational process and

the profession.").

45. Personal Statement, 1997-98 ADMISSIONS CATALOGUE (Boalt Hall, Berkeley, Cal.),

1997, at 56.

46. See Morris, supra note 40, at 7-8.

47. See infra Part II.



66 INDIANA LAW REVIEW [Vol. 34:55

and Title VI of the Civil Rights Act.
48 The plaintiffs were represented by the

Center for Individual Rights (CIR), a public interest advocacy organization

headquartered in Washington, D.C.
49 Hopwood was the first of three lawsuits

filed by CIR against public universities in Texas, Washington, and Michigan.50

The legal and public relations strategy in all three cases was strikingly similar.
The named plaintiff was a white woman; her co-plaintiffs were white men. All
had been denied admission to the law school named as defendant. Typically,
plaintiffs seek declaratory and injunctive relief, admission to the law school,

damages and attorneys' fees. They are prepared for lengthy litigation.51

In Hopwood, Federal District Court Judge Sam Sparks rejected plaintiffs'
constitutional argument, on the ground that it was too simplistic:

The plaintiffs have contended that any preferential treatment to a group
based on race violates the Fourteenth Amendment and, therefore, is
unconstitutional. However, such a simplistic application of the

Fourteenth Amendment would ignore the long history ofpervasive racial
discrimination in our society that the Fourteenth Amendment was
adopted to remedy and the complexities ofachieving the societal goal of
overcoming the past effects of that discrimination.

52

As it turned out, however, plaintiffs' argument was not too "simplistic" to be
accepted by a three-judge panel ofthe Fifth Circuit, which reversed thejudgment

and filed an opinion, authored by Judge Jerry Smith and joined by Judge Harold

DeMoss, questioning the continued viability of the Supreme Court's decision in
BakkeP Judge Jacques Weiner, Jr., in his dissent, argued that the majority had
exceeded its authority.

54 The United States Supreme Court denied certiorari,
with Justices Ruth Bader Ginsburg and David Souter pointing out the central

importance of the issue, but noting that since Texas did not defend the

48. Hopwood v. Texas, 861 F. Supp. 551 (W.D. Tex. 1994), rev'd, 78 F.3d 932 (5th Cir.),

cert, denied, 518 U.S. 1033 (1996), on remand, 999 F. Supp. 872 (1998).

49. See Ethan Bronner, Conservatives Open Drive Against Affirmative Action, N.Y. TIMES,

Jan. 26, 1999, at A 10 (discussing CIR's campaign to encourage college students to challenge the
race-conscious admission practices of their schools); see also Jennifer L. Hochschild, The Strange

Career ofAffirmative Action, 59 OHIO. St. L.J. 997, 1028-29 (1998) (describing the litigators of

CIR and a similar organization, the Institute for Justice, as "a small group of ideologically driven,

energetic young men (mostly) in nonprofit law Firms funded by foundations, out to change the

United States for the better by requiring its institutions to live up to the Constitution as they

understand it"); Beachheadfor Conservatism, Nat'l L.J., Dec. 27, 1999, at Al 1 (profiling the co-

founders of CIR, Michael Greve and Michael McDonald).

50. See Hochschild, supra note 49, at 1028.

5 1

.

See Beachheadfor Conservatism, supra note 49, at A 1 1

.

52. Hopwood, 861 F. Supp. at 553.

53. See Hopwood v. Texas, 78 F.3d 932, 944-45 (5th Cir.), cert, denied, 518 U.S. 1033

(1996), on remand, 999 F. Supp. 872 (1998).

54. See id. at 963 (Weiner, J., concurring) ("[I]f Bakke is to be declared dead, the Supreme

Court, not a three-judge panel of a circuit court, should make that pronouncement.").



2000] THE CHALLENGE TO DIVERSITY 67

admissions policy used to deny admission to the plaintiffs, the case was not ripe
for review.

55

Texas Attorney General Dan Morales ruled that the Hopwood injunction
applied to financial aid as well as admissions.

56
Thus the law school at the

University of Texas, like those at UC, was forced to admit its entering class in
1 997 without the use ofaffirmative action. The impact ofHopwoodon the racial
and ethnic composition of that class was very similar to the impact of SP-1 at
Berkeley: of 468 enrolled students, only four were African-American and
twenty-six were Mexican-Americans.

57

Dean Barbara Aldave of St. Mary's Law School courageously spoke out to
declare that Hopwood had not overruled Bakke, and to promise that

[ujnless and until my superiors order me to stop, we at St. Mary's
University School ofLaw are going to ignore the Hopwooddecision and
adhere to the guidelines ofBakke At least as long as I am the dean,
St. Mary's University School of Law will continue to turn out highly
qualified lawyers, judges, legislators and public servants, and they will

continue to come from all of the diverse racial and ethnic groups that
make up our society.58

Not all private schools in Texas were willing to follow Dean Aldave's lead. As
she noted, despite the fact that the Fourteenth Amendment applies only to public
institutions, both Rice and Baylor suspended their admissions programs in the

wake of Hopwood., 59

Hopwood, on remand, went to trial again in March and early April 1997.

55. SeeTtxosv. Hopwood, 518 U.S. 1033, 1034(1 996) ("[W]e must await a finaljudgment

on a program genuinely in controversy before addressing the important question raised in this

petition.").

56. See Op. Tex. Att'y Gen. No. 97-001 at 18 (Feb. 5, 1997). "Although, as always,

individual conclusions regarding specific programs are dependent upon their particular facts,

HopwoocTs restrictions would generally apply to all internal institutional policies, including

admissions, financial aid, scholarships, fellowships, recruitment and retention, among others." Id.

Attorney General John Cornyn withdrew Letter Opinion No. 97-001 insofar as it affected "matters

other than admissions" on September 3, 1999. Op. Tex. Att'y Gen. No. JC-0107 at 1 (Sept. 3,

1999). In doing so, however, he cautioned "state universities in Texas to await a resolution of

Hopwood in the United States Court of Appeals for the Fifth Circuit or the United States Supreme

Court before restructuring or adopting new procedures for their financial aid programs." Id.

57. See Memorandum from Shelli Soto, Assistant Dean for Admissions to Dean M. Michael

Sharlot re 1995-1999 Statistics (Feb. 2, 2000) (on file with author). The last admissions cycle that

was completely free of Hopwood was the entering class of 1995. In that year, of 512 enrolled

students, thirty-eight were African-American and sixty-four were Mexican-American.

58. Barbara Bader Aldave, Hopwood v. Texas. Much Ado About Nothing? The 5th

Circuit 's Famous Opinions ShouldNot Be the Death Knellfor Race-Based Admissions Programs

\

Tex. Law., Nov. 1 1, 1996, at 43. In 1998, the President ofSt. Mary's University declined to renew

Professor Aldave's appointment as Dean. See San Antonio Express-News, Oct. 25, 1 997, at 1 B.

59. See Aldave, supra note 58, at 43.



68 INDIANA LAW REVIEW [Vol. 34:55

Judge Sparks found that the four plaintiffs would not have been admitted at
Texas even "under a constitutional admissions system."

60
The school's petition

for hearing en banc was denied by the Fifth Circuit on January 31, 2000.
6 '

2. The Smith Litigation in Washington.—On March 5, 1997, the University
of Washington Law School was named defendant in the second ofthree reverse
discrimination suits filed by CIR.

62 As in Hopwood, the named plaintiff, Katuria
Smith, was a white woman who had been denied admission to the law school.63

Fifteen months after the suit was filed, Tyson Marsh and twelve other current and
prospective students at Washington moved to intervene to defend the law
school's affirmative action program.

64
Their motion was denied as untimely by

District Court Judge Thomas S. Zilly, and hisjudgment was affirmed on appeal.65

On November 3, 1998, however, litigation on the merits in Smith v. University
of Washington Law School was cut short by the passage of Initiative 200.

66 An
appeal is pending on the matter ofdamages and the admission to Washington of

the certified class representative, Michael Pyle.
67

3. The Grutter Legislation in Michigan.—In Fall 1997, the CIR set its sights
on the University of Michigan. It filed a reverse discrimination lawsuit on

December 3, 1997 against the Michigan School of Law.
68 As in Hopwood and

Smith, the named plaintiff was a white woman, Barbara Grutter, who had been
denied admission to the law school.

69
Her complaint alleged, among other things,

that the law school "did not merely use race as a 'plus' factor or as one of many
factors to attain a diverse student body. Rather, race was one ofthe predominant

factors (along with scores on the Law School Admissions Test and undergraduate
grade point averages) used for determining admission."

70
In response, the law

60. Hopwood v. Texas, 999 F. Supp. 872, 879 (W.D. Tex. 1998).

61. See E-mail from M. Michael Sharlot, Dean, to Herma Hill Kay, Dean, University of

California-Berkeley, Boalt Hall School of Law (Feb. 1, 2000) (on file with author). Dean Sharlot

added that the case will be heard by a Fifth Circuit panel on the issues ofdamages and attorney fees

for the plaintiffs and that the school intends "to seek rehearing en banc of the panel decision, and,

if unsuccessful on the basic issue ofthe constitutionality of affirmative action, a la Bakke, for legal

education." Id. See Janet Elliott, Hopwood Won 7 Be Heard En Banc, TEX. LAW., Feb. 7, 2000,

at I.

62. See Smith v. Univ. of Wash. Law School, 2 F. Supp. 2d 1324 (W.D. Wash. 1998).

63. See id. at 1328.

64. See Smith v. Marsh, 194 F.3d 1045, 1047 (9th Cir. 1999).

65. See id. at 1053.

66. See infra text accompanying notes 89-91

.

67. See Smith, 194 F.3d at 1049 n.3.

68. See Grutter v. Bollinger, 1 6 F. Supp. 2d 797 (E.D. Mich. 1 998). Earlier, CIR had filed

a similar suit against the Michigan undergraduate admissions program. See Gratz v. Bollinger, 1 83

F.R.D. 209 (E.D. Mich. 1998).

69. See Grutter, 16 F. Supp. 2d at 799.

70. Plaintiff's Complaint, Grutter v. Bollinger, 16 F. Supp. 2d (E.D. Mich. 1998) (No. 97-

75928), available at University of Michigan Law School Web Site, http://www.umich.edu/~urel/

admissions/legal/grutter/grutter.html (Dec. 3, 1997).



2000] THE CHALLENGE TO DIVERSITY 69

school denied that its admissions policies led to the plaintiff being treated

unequally, and stated its "current intention to continue using race as a factor in

admissions, as part ofa broad array ofqualifications and characteristics ofwhich

racial or ethnic origin is but a single though important element."
71

As in Hopwoodand Smith, affirmative action proponents moved to intervene
in Grutter as parties to the litigation.

72
District Court Judge Bernard A. Friedman

denied the motion on July 6, 1998 on the ground that the proponents had failed

to show that the defendant would not adequately defend their interests.
73

Similar

motions had been denied in HopwoocF* and Smith™ On appeal, however, the
Sixth Circuit in Grutter reversed, with Judge Martha Craig Daughtrey basing her

reasoning in part on the lessons learned elsewhere:

There is little room for doubt that access to the University for African-
American and Latino/a students will be impaired to some extent and that
a substantial decline in the enrollment ofthese students may well result
if the University is precluded from considering race as a factor in

admissions. Recent experiences in California and Texas suggest such an

outcome. The probability of similar effects in Michigan is more than
sufficient to meet the minimal requirements ofthe impairment element.

76

Following this ruling, the trial date in Grutter was postponed and recently set for
January 15, 200 1.

77
Meanwhile, Dean Jeffrey S. Lehman has made clear his

belief that the law school's admission policy satisfies the Bakke standard.
78

71. Defendant's Answer, Grutter v. Bollinger, 16 F. Supp. 2d (E.D. Mich. 1998) (No. 97-

75928), available at University of Michigan Law School Web Site, http://www.umich.edu/~urel/
admissions/legal/grutter/answer2.html (Dec. 3, 1997).

72. The group seeking intervention in Hopwood was the Thurgood Marshall Legal Society,

a student organization at Texas. In Smith, they were current and prospective Washington students.

See Smith, 194 F.3d at 1047. In Grutter, the intervenors were seventeen African-American and

Latino/a individuals who had applied or stated their intention to apply for admission at Michigan,

and a group calling itself Citizens for Affirmative Action's Preservation (CAAP). See Grutter v.

Bollinger, 188 F.3d 394, 397 (6th Cir. 1999).

73. See Grutter, 1 88 F.3d at 397.

74. Hopwood v. Texas, No. A-92-CA-563-SS, 1 994 WL 242362, at * 1 ( W.D. Tex. Jan. 20,
1994), qjf'd, 21 F.3d 603 (5th Cir. 1994), cert, denied sub nom., Thurgood Marshall Legal Soc'y

v. Hopwood, 518 U.S. 1033 (1996).

75. Smith v. Marsh, 194 F.3d 1045, 1053 (9th Cir. 1999).

76. Grutter, 1 88 F.3d at 400.

77. See Briefs, Trial ofAdmissions Suit Delayed Until January 2001, L. QUADRANGLE

NOTES, Summer 2000, at 5; Law School Admissions Suit Trial Delayed, UNIV. RECORD, at

University of Michigan Web Site, http://www.umich.edu/~urecord/9900/AprlO_00/12.htm (Apr.
20, 2000).

78. See Jeffrey S. Lehman, A Statementfrom the Dean, L. QUADRANGLE NOTES, Summer

1999, at 51, 52.



70 INDIANA LAW REVIEW [Vol. 34:55

C. The Voters Speak: Proposition 209 in California and Initiative 200 in
Washington

J. Proposition 209.—In 1994, Glynn Custred, then a California State
University-Hayward professor, and Tom Wood, a white man claiming to have
been denied a teaching job in favor of a less-qualified minority woman,
undertook the task of putting an anti-affirmative action measure on the ballot in
California.

79
The measure they co-authored, entitled "The California Civil Rights

Initiative" (CCRI), qualified for the ballot during the Fall 1996 election.
80 The

campaign to pass CCRI, which had been languishing, took on an increased vigor
when UC Regent Ward Connerly, who along with Governor Pete Wilson had
been the driving force behind SP-1 and SP-2, decided to lead the effort.

81 On
November 5, 1996, California voters approved the measure as an amendment to
the state constitution by a margin of4,736,180 (fifty-four percent) to 3,986,196

(forty-six percent).
82

The operative language of CCRI reads as follows: "The state shall not
discriminate against, or grant preferential treatment to, any individual or group

on the basis of race, sex, color, ethnicity, or national origin in the operation of

public employment, public education, or public contracting."
83 As applied to the

three campus-based UC law schools, Proposition 209 went beyond the Regents'
Resolution SP-1 in only two respects: (1) financial aid and (2) outreach and

recruitment programs. By its terms, CCRI was effective immediately. On

79. See Edward W. Lempinen & Pamela Burdman, Measure to Cut Back Affirmative Action
Wins, S.F. CHRON., Nov. 6, 1996, at Al; see also CONNERLY, supra note 40, at 161 (noting that

Wood "had never landed a full-time university appointment despite receiving a Ph.D. in Philosophy

from U.C. Berkeley in the mid-seventies").

80. See Lempinen & Burdman, supra note 79, at Al

.

81. See Connerly, supra note 40, at 1 65-67 (explaining that he agreed to chair the effort

to put CCRI on the ballot in order to preserve the victory against preferences represented by SP-1

and SP-2).

If CCRI didn't even have enough support to get on the ballot, it might legitimately be

concluded that the people of California had spoken—if only by their silence—on the
issue of preferences and, in effect, repudiated what we had done. If they revisited and

overturned the vote, the principles we had fought for would be defeated, and the old

system ofpreferences would be reestablished as official university policy, more strongly

entrenched than ever.

Id. at 165-66.

82. See Coalition for Econ. Equity v. Wilson, 946 F. Supp. 1480, 1495 (N.D. Cal. 1996),

vacated, 1 22 F.3d 692 (9th Cir.), cert, denied, 522 U.S. 963 ( 1 997); see also Benjamin A. Doherty,

Comment, Creative Advocacy in Defense of Affirmative Action: A Comparative Institutional

Analysis of Proposition 209, 1999 Wis. L. Rev. 91, 102-07 (describing the campaign for

Proposition 209 and citing exit polls showing that sixty-one percent of males and sixty-three

percent of whites favored Proposition 209).

83. Cal. Const, of 1879, art. I, § 31(a) (1996).



2000] THE CHALLENGE TO DIVERSITY 7

1

November 27, 1996, however, U.S. District Court Chief Judge Thelton
Henderson granted the motion of plaintiff Coalition for Economic Equity for a

temporary restraining order barring Governor Wilson and Attorney General

Lungren from enforcing Proposition 209.
84

Further, on December 23, 1996,
Chief Judge Henderson granted a preliminary injunction enjoining defendants

from enforcing and implementing Proposition 209 pending trial or final

judgment.
85 On appeal, thisjudgment was reversed by a three-judge panel ofthe

Ninth Circuit, which vacated the preliminary injunction.
86

The United States

Supreme Court denied review,
87
and Proposition 209 became fully effective on

August 28, 1997, ten days after the fall semester had begun at Boalt Hall.

2. Initiative 200 in Washington.—Washington's Initiative 200 contained the
identical language as Proposition 209, but, unlike Proposition 209, it was a
statutory enactment rather than a constitutional amendment. It qualified for the

ballot during the 1 998 election, and was approved by the voters on November 3,
1998 by a margin of 58.22 % to 41.78%.88 Once again, UC Regent Ward
Connerly was active in the campaign to win voter approval of Initiative 200.

89

In February 1999, after Initiative 200 was approved, Judge Zilly granted the
Washington Law School's motion in the pending Smith case to dismiss the
injunctive and declaratory claims as moot, decertified the class, denied the cross-

motions for summaryjudgment, and stayed trial pending further order.
90

Because

Washington is within the jurisdiction of the Ninth Circuit, that court's decision

upholding the constitutionality of Proposition 209 meant that a similar challenge

to Initiative 200 would be to no avail.
91

3. Is Florida Next?—Florida became the site of a third attempt to enact a
state-wide ballot measure patterned after Proposition 209 and Initiative 200 and
spearheaded by Regent Connerly.

92
The initiative, slated for the November 2000

84. See Wilson, 946 F. Supp. at 1495.

85. See id at 1520-21.

86. See Coalition for Econ. Equity v. Wilson, 1 22 F.3d 692, 7 1 1 (9th Cir.), cert, denied, 522

U.S. 963(1997).

87. See Coalition for Econ. Equity v. Wilson, 522 U.S. 963 (1997).

88. See State ofWashington Office ofthe Secretary ofState, 1 998 Washington State General

Election Results, at http://www.secstate.wa.gov/elections/gen98.htm (last modified Dec. 3, 1998)

[hereinafter 1998 Washington State General Election Results]. For an analysis of Initiative 200,

see also Robert H. Kelley, The Washington Civil Rights Initiative: The Needfor a Meaningful

Dialogue, 34 GONZ. L. Rev. 81 (1998-99).

89. See CONNERLY, supra note 40, at 205, 219-31, 242-45 (describing his decision to remain

active in the battle to end preferences as necessary to protect the victories achieved in California,

"[o]nce you embark on a cause like the one we'd undertaken, you have to keep advancing, if only

to protect the ground you've already won," and describing the campaign for Initiative 200).

90. See Smith v. Marsh, 194 F.3d 1045, 1047-48 (9th Cir. 1999) (describing proceedings

in the district court).

91

.

The Ninth Circuit panel that heard Smith, included Judge Diarmuid O'Scannlain, who

also sat on the panel that heard the challenge to Proposition 209.

92. See CONNERLY, supra note 40, at 247-49; Rick Bragg, Fighting an Uphill Battle, NY.



72 INDIANA LAW REVIEW [Vol. 34:55

ballot, was held up by the Florida Supreme Court's review ofwhether it violated
the "single subject" requirement.

93
In November 1999, Florida Governor Jeb

Bush sought to preempt support for the initiative by issuing an Executive Order
that created a program, called One Florida, which abolished affirmative action
in public contracting and college admissions.

94
The admissions provisions ofthe

One Florida program are modeled after the Texas 10 percent plan95 and would
guarantee admission to one ofthe ten state universities to all high school students

who graduate in the top twenty percent of their class.96

II. A Post-Affirmative Action Environment

A. The California Law Schools ' Efforts to Maintain Diversity

To date, the University of Texas continues to defend its affirmative action
admissions program, in the hope that the United States Supreme Court will
reverse Hopwood and reaffirm or strengthen Bakke.91 Moreover, Michigan is
preparing to defend its admissions policies at trial in mid-January 2001.

98
In

California, however, Bakke remains off limits to the public law schools because
ofthe 1995 action taken by the UC Board of Regents in adopting SP-1 ." In both

Times, June 7, 1999, at A 1 6.
93. See Peter T. Kilborn, Jeb Bush Roils Florida on Affirmative Action, N. Y. TIMES, Feb.

4, 2000, at A 1 , A23; see also Hochschild, supra note 49, at 1 005-27 (presenting data to support her
conclusion that California and Washington are "anamolies" and that there is "no reason to expect

a wave of successful efforts to abolish affirmative action through the electoral system"). The

Florida Supreme Court is reviewing the measure to determine whether it complies with the "single

subject" requirement. See Connerly, supra note 40, at 260-61 (indicating that if the Florida CRI

does not qualify for the ballot in 2000, he and his supporters will try again in 2002).

94. See Kilborn, supra note 93, at A23.

95. For an analysis ofthe Texas plan, see Danielle Hoi ley & Delia Spencer, The Texas Ten
Percent Plan, 34 HARV. C.R.-C.L. L. Rev. 245 (1999); David Orentlicher, Affirmative Action and

Texas ' Ten Percent Solution: Improving Diversity and Quality, 74 NOTRE DAME L. Rev. 1 8

1

(1998) (arguing that regardless of the effectiveness of these plans on maintaining a measure of

diversity in the state colleges and universities of Texas, they will have no impact on law school

enrollment).

96. See Rick Bragg, Affirmative Action Ban Meets a Wall in Florida, N.Y. TIMES, June 7,

1 999. This part ofthe program is expected to take effect in March 2000, following approval by the

University of Florida systemwide Board of Regents. See Rick Bragg, Minority Enrollment Rises

in Florida College System, N.Y. TIMES, Aug. 30, 2000, at A 1 8 (reporting that minority enrollment
increased by twelve percent in the freshman class of 2000, the first class selected under the One

Florida plan).

97. See E-mail from Dean M. Michael Sharlot, supra note 61.

98. See Briefs, Law School Admissions Suit Trial Delayed, supra note 77.

99. See University of California Regents Resolutions SP-1 and SP-2, supra note 42;

Connerly, supra note 40. UC Regent William Bagley, a supporter of affirmative action in
admissions, indicated in late January 2000 that he was preparing a proposal which would allow the



2000] THE CHALLENGE TO DIVERSITY 73

California and Washington, the electorate has prohibited all state agencies from

using "preferential treatment ... in public education" by enacting Proposition

209 and Initiative 200.
10° The crucial question for public law schools in these

two states is what can be done to maintain some measure of diversity within the
constraints imposed by state law.

The three UC campus-based law schools have responded differently to SP-1
in their 1997 admissions programs.

101 As indicated earlier, Berkeley eliminated
its numerical goals for minority admissions, but otherwise adhered to its

commitment to diversity by strengthening its discretionary admissions
practices.

102 UCLA, on the other hand, created a new admissions program based
on socioeconomic factors designed to produce diversity.

103
The policy at UC-

Board of Regents to reverse SP-I . Acknowledging that such a reversal would have no impact on

admission policies as long as Proposition 209 remains the law, Bagley nonetheless pointed to its

symbolic value in assuring students and faculty that minorities are welcome at the University. See

also Tanya Schevitz, Preferences Ban Faces Battle From UC Regent, S.F. CHRON., Jan. 29, 2000,
at A3. Regent Ward Connerly dismissed the effort, saying "I doubt he'll get a second." Anne

Benjaminson, Regent Proposes Prop. 209 Reversal of 209 to Repair Reputation, Daily

Californian, Feb. 1, 2000, at 1, 4. The San Francisco Chronicle supported Bagley 's idea, noting

that "[s]tudents and faculty who have a choice between a UC campus and another university that
has made clear its commitment to diversity are often eliminating UC because ofthe regents' policy"
and calling upon California Governor Gray Davis and other regents to "support Bagley in his effort

to restore an atmosphere of welcome to ethnic minorities." Editorial, S.F. Chron., Feb. 2, 2000,

at A26.

1 00. See CAL. Const, of 1 879, art. I, § 3 1 (a) ( 1 996); 1 998 Washington State General Election

Results, supra note 88; Kelley, supra note 88; see also supra text accompanying notes 83 and 88.

101. The fourth public law school in California, UC's Hastings College of the Law, is

governed by its own Board of Trustees, not by the Regents of UC, and was unaffected by SP-1 . It

was, however, subject to Proposition 209. Hastings has an admission program that is based on class

rather than race and ethnicity, called the Legal Education Opportunity Program (LEOP), which does

not rely on Bakke. Boalt Hall's 1997 Task Force on Admissions Policy examined the Hastings

LEOP, which is used to admit twenty percent of the entering class, but decided that because of

differences in the applicant pools and student bodies ofthe two schools, it would not be successful

at Berkeley. See Rachel Moran et al., Report of an Ad Hoc Task Force on Diversity in Admissions,

5 1 -54 (Oct. 1 4, 1 997) (unpublished report, on file with author). Nonetheless, the Boalt Hall faculty

voted in 1997 to experiment with a pilot program that charged one faculty member to admit up to

thirty applicants from a group of 150, selected from regular applicants who submitted a

supplemental questionnaire that provided information about their socioeconomic status. Some

4000 questionnaires were mailed, of which 1300 were returned and entered into a computer

program. The results ofthis experiment produced eighteen offers of admission, and yielded eleven

enrolled students, who exhibited socioeconomic, but not racial or ethnic, diversity. See

Introduction, 1998 Annual Admissions REPORT (Boalt Hall, Berkeley, Cal.), 1998, at 2 (on file

with author).

1 02. See supra text accompanying notes 42-44.

1 03

.

See Richard H. Sander, Experimentingwith Class-BasedAffirmative Action, 47 J . LEGAL

EDUC. 472,472-73(1997).



74 INDIANA LAW REVIEW [Vol. 34:55

Davis closely resembled that used by Berkeley.
104

The entering law classes of 1997 showed dramatic declines in non-Asian
minority enrollment in both California and Texas, but there were individual
variations among the three UC campus-based law schools. Both UCLA and
Davis successfully enrolled more African-American students in the class of 1 997
than Berkeley, while the enrollment picture at Texas was closer to that of
Berkeley than UCLA. 105

In the wake of the 1997 admissions cycle, law schools in California re-
examined their practices. At Berkeley, the faculty made the following changes,
which were implemented in the 1998 admissions cycle:

106

1

.

We discontinued the use of a formula used to weigh UGPAs from
undergraduate institutions.

107
The Director of Admissions and the Admissions

Committee reading teams now evaluate UGPAs based on data provided by the
Law School Data Assembly Service (LSDAS) regarding grade inflation and the
relative competitiveness ofthe student body at undergraduate institutions as well
as the applicant's program of study.

2. We enlarged the pool of applicants considered by the Admissions
Committee.

108
Each year we have around 4000-5000 applicants for the 270

places in our entering class. The Director ofAdmissions and his staffreview all
of these files, and the Director admits roughly 500 applicants, while the
Admissions Committee admits the balance needed to offer admission to
approximately 850 applicants. In 1998, the Committee read nearly 1400 files, up
from 1200 in 1997. This increase gave the Committee a broader pool to
consider.

3. In order to minimize over-reliance on the LSAT, we began reporting
LSAT scores in bands to the Committee, a practice adopted by the Law School
Admissions Service in reporting applicants' scores to us.

109

4. In order to focus readers more closely on individual achievements, we
stopped grouping applicants' files in ranges labeled "A," "B," "C," or "D"

1 04. See Bruce Wolk, Presentation to the Regents' Committee on Educational Policy (June

18, 1998) (noting that Davis uses both numerical factors, including UGPA and LSAT scores
combined into an index, as well as more subjective factors, such as "extra-curricular activities,

community activities and employment experience, advanced degrees or studies, the applicant's

personal statement, achievements for oneself or others, despite social, economic, or physical

handicap, and unusual accomplishments, abilities, or skills that would be relevant to the study of

law").

1 05. See infra Table 2.

106. See Feature, Admissions Update: The Class of2001, BOALT HALL TRANSCRIPT, Fall

1998, at 30.

107. See id.

108. See id.

1 09. See id. Thus, a score of 1 59 would be reported as falling within a band of three points

lower and three points higher than the mid-point, or 156-162. This way of reporting the score is

intended to alert the reader that a one, two, or three point difference between students is not

significant.



2000] THE CHALLENGE TO DIVERSITY 75

according to Index Scores.
110

5. We paid special attention to applicants whose standardized test scores,
such as the SAT, did not accurately predict their academic potential in college

as measured by their UGPA. 1 " If such an applicant also had a weak LSAT, but
a strong UGPA, we treated the LSAT as a weaker predictor.

We did not expect any single one of these changes to produce a big
difference in the make-up of the 1 998 entering class. Taken together, however,

we think they accomplished several positive results. First, they helped to dispel
the negative and false public impression that Boalt Hall is hostile to minority

candidates. The publicity surrounding the faculty discussion and adoption of
each of these measures showed that we were trying in good faith to find race-
neutral ways to maintain diversity.

Second, these measures gave the Director of Admissions wider discretion in

admitting applicants than he had in prior years. As he put it in describing our
practices to his fellow admissions professionals, these changes facilitated the

school's search for the best applicants. In particular, he sought applicants who
had both strong academic potential, as measured by their numerical predictors,

and who had a potential "voice" to contribute to the classroom dialogue, as
indicated by their background and experiences."

2

Finally, these changes allowed the Admissions Committee to focus more
closely than it had done in prior years on non-numerical factors as well as

numerical indicators. All of the nearly 1400 files they read had been pre-

screened by the Director of Admissions, and all were from applicants fully

qualified to study law at Boalt Hall. These files were distributed among six
reading teams so that each team read approximately 215 files. The individual
choices made by the faculty members of these teams were based on the material
in the files and their experience as Boalt Hall professors in judging the suitability

ofapplicants. The faculty members ofthe Admissions Committee are appointed
by the Dean and change over time. The procedure we use affords the faculty a
significant measure of discretion, and their use of that discretion is the first step

in selecting the superbly qualified, intellectually stimulating, creative, and

1 10. See id. An index score at Berkeley is a number resulting from a formula that weights

the LSAT and the UGPA equally. Not all schools use an index score in their admissions processes,
and those that do use index scores vary the amount of weight given to the two variables that

constitute the measure. Thus, the Law School Admission Council (LSAC) which administers the

LSAT, reported that for the application year 1 997-98, the 1 79 ABA-approved law schools used the

following types of index formulas: 106 (fifty-nine percent) used a formula based on LSAC
correlation study results; forty-six (twenty-six percent) used a different formula representing

alternative weightings of LSAT and UGPA; and twenty-seven (fifteen percent) used no index
formula produced by LSAC. See Herma Hill Kay, Report ofthe Committee on Diversity in Legal

Education, SYLLABUS, Fall 1998, at 1, 15.

111. See Feature, supra note 1 06.

112. See id; see also Herma Hill Kay, Testimony Before the Regents' Committee on

Educational Policy (June 18, 1998) (quoting Boalt Hall Director of Admissions, Edward Tom) (on

file with author).



76 INDIANA LAW REVIEW [Vol. 34:55

resourceful students who typically attend our school.
Once the Admissions Committee and the Director of Admissions have

admitted the applicants, the second step, that of recruitment, takes priority.

Faculty, staff, and administrators made telephone calls and exchanged email
correspondence with admitted applicants, urging them to accept our offers of
admission. In addition, we received significant help from our alumni, who
hosted receptions for our admitted students around the country as well as in the

Berkeley-San Francisco Bay Area. Further, although Proposition 209 has limited
our ability to use race-targeted scholarships and financial aid to recruit

applicants, its terms do not apply to private organizations. Both the Bar
Association of San Francisco and the Wiley Manuel Law Foundation were
instrumental in raising funds for scholarships and in selecting students admitted

to Bay Area law schools to receive the scholarships."
3

Finally, we made and
distributed an eight-minute video entitled, "Welcome to Boalt Hall." The video
featured Boalt students, faculty, alumni, and the dean. It described Boalt as an

attractive and stimulating place to study law and was well received by our
admits."

4

As a result of the changes in faculty admission policy and the increased
recruitment effort, Boalt's 1998 entering class showed a modest increase in
diversity over the preceding year,"

5
but the numbers were roughly half that

attained in 1996 with the help of affirmative action."
6

In her testimony before

the California Senate Select committee on Higher Education in Fall 1997, then

Dean Susan Prager ofUCLA identified the situation that produces such extreme
competition among law schools for the minority students with the highest
credentials. She said:

Once affirmative action is no longer a tool, the problem is the small
number of applicants who have the highest numerical credentials. The
law school applicant pools are very large and the sheer number of white
applicants dominates at every level of that pool. For the most
competitive of schools, the upper reaches of the pool based on grades

113. See Feature, supra note 1 06, at 3 1 ; see also Newsfrom the Bar: United We Stand, 24

San Fran. Att'Y 7 (BASF describes how it raised $350,000 to fund minority scholarships "as a

concrete way to increase diversity at northern California law schools.").

1 14. The video was funded by a private gift of $10,000 from Sun Microsystems and a one-

time recruitment allowance of $20,000 from the Office of the President of UC.

1 15. There were 269 students enrolled in the entering class of 1998, of whom eight (three
percent) were African-American; twenty-three (nine percent) were Hispanic; two (one percent) were

Native American; and forty-eight (eighteen percent) were Asian. See Table IV: Diversity in the

ID. Program, 1999 Annual ADMISSIONS REPORT (Boalt Hall, Berkeley, Cal.), l999(on file with

author) [hereinafter 1999 ANNUAL ADMISSIONS REPORT].

1 16. There were 263 students enrolled in the entering class of 1996, of whom twenty (eight

percent) were African-American; twenty-eight (eleven percent) were Hispanic; four (two percent)

were Native American; and thirty-eight (fourteen percent) were Asian. See 1996 Annual

Admissions Report (Boalt Hall, Berkeley, Cal.), 1996, at 2 (on file with author).



2000] THE CHALLENGE TO DIVERSITY 77

and LSATs have minuscule numbers ofAfrican Americans and Latinos.
For example, in the entire nation this year, there were only 103 African

American and 224 Latino applicants who had LSATs of 160 or better
and had grades of 3.25 or better. Of these, only 16 African Americans
and 45 Latinos had LSATs [sic] above 1 64 and grades of 3.5 or better.
In contrast, there were 2,646 white applicants with these credentials, and

7,715 in the 160 LSAT and 3.25 and above category ....
When we consider that 1 8 African Americans enrolled at Yale Law

School alone this year, we can predict the demand for the remaining
students in the higher qualification cohort. Looking at the above data

also makes clear that most, if not all, of the highest quality private law
schools are engaging in affirmative action. The recent policy changes in
California make it impossible for us to remain competitive when it
comes to the national pool of minority students."

7

Given this data, Boalt Hall's situation is not difficult to grasp for three

reasons. First, Boalt's applicant pool is national in scope, and the majority ofour

students come from the best research universities. In 1997 our applicant pool
came from 458 undergraduate schools, our admits came from 148 of these
schools, and the top five schools attended by those who enrolled were Berkeley,
UCLA, Stanford, Harvard, and Yale. Second, Boalt is, and has been for many
years, recognized as the most selective public law school in the country. Third,

our entering class has very high academic indicators. In 1997 the mean UGPA
was 3.7, and the mean LSAT was 167 (96th percentile). If we had admitted
minority students whose academic indicators were well below those ofthe class
as a whole, our good faith compliance with SP-1 would be open to challenge.

Even with the changes we instituted for the admission of the entering class
of 1998, these factors changed very little. In 1998, our pool of 4587 applicants

came from 500 undergraduate schools, our admits came from 196 of these
schools, and, while their respective order had changed, the top five schools

attended by the 269 students who enrolled still included Berkeley, UCLA,
Stanford, Harvard, Yale (these latter two schools tied), and Cornell. The mean
UGPA ofthe entering class of 1998 was 3.72 and the mean LSAT was 165 (93rd
percentile)."

8

Boalt Hall did not make any further changes in its admissions policies during
the 1999 admissions cycle. With the help of additional funding from the
Berkeley campus and the State Legislature, however, we were able to expand our
outreach efforts by a significant measure. We hired an Associate Director of
Admissions for Outreach and Recruitment, whojoined us in August 1998. With
his help, we visited more schools and admission workshops during the fall of
1 998 in order to encourage prospective students to apply to Boalt. In the winter

and spring of 1999, our alumni continued their recruitment efforts with

1 17. Susan Westerburg Prager, Testimony Before California Senate Committee on Higher

Education (Sept. 22, 1997) (on file with author). See also Morris, supra note 40, at 5-6.

1 1 8. See 1 999 Annual ADMISSIONS REPORT, supra note 1 1 5, at Table IV.



78 INDIANA LAW REVIEW [Vol. 34:55

receptions and dinners for the admits. The faculty, students, and administration
continued their interaction with the admits, and the video was distributed once
more.

In early September 1999, UC's three campus-based law schools released
their admissions statistics for the entering class of 1999. Table 1 shows the
results of three years without affirmative action in California.

119

Currently, an interdisciplinary committee on New Definitions of Merit
chaired by Professor Margarie McGuire Shultz is at work at Boalt, charged with
formulating possible redefinitions of merit. It is investigating predictors of

success in law school beyond first year grades and, more broadly, predictors of
success in the legal profession.

B. The Report ofthe Diversity Committee ofthe Section ofLegal Education

andAdmissions to the Bar

In 1996, Dean Rudy Hasl, as Chair of the Section of Legal Education and
Admissions to the Bar, charged the Section's Committee on Diversity in Legal

Education to consider two matters: ( 1 ) law school admission policies in the wake
of the Fifth Circuit decision in Hopwood, the UC Regents' resolution, and
Proposition 209; and (2) the treatment of women students, faculty, staff and
administrators in legal education. Chair Beverly Tarpley reappointed the

Diversity Committee in 1997 with the same charge. The Committee chose to
concentrate during those two years on the first part of its charge, and filed a

report that was accepted by the Council at its August 1998 meeting and

distributed to all Deans.

With the help of President Philip D. Shelton of the Law School Admission
Council (LSAC), the Committee undertook a pilot project to analyze how law
schools use the LSAT in their admissions processes and recommended a range
of available race-neutral options that schools might use to improve the accuracy

of the LSAT and to maximize diversity. In conducting this study, LSAC
provided the Committee with data from ten unidentified public law schools,

including nine from California and the Fifth Circuit and one outside those areas.

The report for each school included descriptive historical data for the
applicant/admit pools for application years 1994-95, 1995-96, and 1996-97, and

the same information for the number of actual admits in fall 1997 if the school
had used as the criteria for admission the index number only, or the LSAT only,
ortheUGPAonly. 120

Three hypothetical models were constructed (called Alternatives A, B, and

C). These models used baseline LSAT scores drawn from each school's actual
admit pool for the 1995-96 admission year to identify "qualified" applicants.

Alternative A used an LSAT score equal to the score that was actually tenth from
the lowest score of all admitted applicants from that school. (The lowest score

was not used to avoid outliers.) Alternative B expanded the LSAT range by five

1 19. See infra Table 1.

1 20. See Kay, supra note 1 1 2, at 1 4- 1 6.



2000] THE CHALLENGE TO DIVERSITY 79

points, and Alternative C expanded the range by an additional five points. In
each instance, applicants who met the "qualifying" LSAT score were then ranked
according to UGPA and a matrix that displayed the characteristics ofthe students
admitted (a number equal to the number of actual admits in the class entering in
the fall of 1997).

Each ofthe above methods for identifying admitted applicants was matched
against the following characteristics: gender, ethnic identity, LSAT scores,
undergraduate major, graduate degree earned, and resident/nonresident status.

After reviewing this data, the Committee focused on an analysis that compared
the proportion ofadmits to total applicants with the proportion ofactual minority

admits to qualified minority applicants. The purpose of this analysis was to
determine whether using the LSAT as a qualifying credential might give schools
an opportunity to expand minority admissions. We hypothesized that a school
would expand its pool of qualified applicants by using the LSAT as a qualifying
credential if the ratio of its actual minority admits to its qualified minority

applicants was greater than the proportion of total admits to total applicants.
Given this hypothesis, the Committee expanded its analysis to include thirty-

one law schools, public and private, from across the country and across the

spectrum of schools, including the original ten. We found that if Alternative A
had been used, six schools would have expanded the subset ofqualified African-

American applicants in their pool; fourteen would have expanded the subset of
qualified Chicano/Mexican Americans; and seven each would have expanded the

subset of qualified Hispanic/Latino and Asian/Pacific Islanders. The results

which could have been obtained by using Alternative B were even larger:
nineteen schools would have expanded the subset of qualified African-

Americans; eighteen the subset of Chicago/Mexican Americans; twenty the

subset of Hispanic/Latinos; and fourteen the subset of Asian/Pacific Islanders.

It appears that nearly half the law schools might give themselves a better

opportunity to broaden the subset of eligible applicants in their pool and to
improve their minority admissions ifthey utilized Alternative B. The Comm ittee
recommended that interested schools should request the data underlying this
analysis from the LSAC in order to determine the effect of either Alternative A
or B on their own applicant pool.

Conclusion: The Shape of the Future

At this moment in American society, with race relations becoming more
strained than ever before and the basis for trust and respect becoming ever more
fragile,

121
it is the numbers that tell the story. Table 2 shows the numbers of

121. See Stephen Reinhardt, Remarks at UCLA Law School Forum on Affirmative Action:
•Where Have You Gone, Jackie Robinson?, " 43 U.C.L.A. L. REV. 1731, 1732 (1996).

Some ofwhat is happening today, partly as a result of the assault on affirmative action,

is heartbreaking. The animosities among minority groups are increasing. There is

disunity and disharmony among peoples of color. . . . Sadly, a lot of sincere, well-

meaning folks also contribute to the growing separation, isolation, and division by



80 INDIANA LAW REVIEW [Vol. 34:55

minority students admitted and enrolled at the three UC campus-based law
schools and at the University ofTexas School of Law in Austin for the five year
admission cycles 1995-1999.

122

According to ABA President William Paul, who has chosen diversity as his
Presidential Initiative, the crucial number to focus on is the racial divide between
the legal profession and the rest ofthe country. Speaking at the AALS House of
Representatives in January 2000, President Paul said that he had discovered,
while examining demographic trends in order to predict what the profession

might look like in twenty or thirty years,

that this country is 30 percent people of color today and it's moving
toward 50 percent people of color. But our profession is still 92/2

percent white. Now, I believe that the legal profession must reflect the
society which it serves .... [I]t is essential to the preservation of our

free society that the legal profession reflect the society. We are the
connecting link between society and the rule of law, and I don't have

much confidence in the ability of a profession that's 92 l/2 percent white
to remain and continue as the connecting link to a society moving toward
50 percent people of color.

123

To political scientist Nathan Glazer, who once opposed affirmative action,
the crucial statistic is the dramatic drop in African-American enrollment in

leading colleges and universities resulting from the end ofaffirmative action, and

the predictable societal consequences of that drop:

I believe the main reasons we have to continue racial preferences for
blacks are, first, because this country has a special obligation to blacks

that has not been fully discharged, and second, because strict application

of the principle of qualification would send a message of despair to

many blacks, a message that the nation is indifferent to their difficulties
and problems.

124

Authors William G. Bowen and Derek Bok, on the other hand, are impressed
by positive numbers.

125
Looking at the outcome ofthe use of affirmative action

joining with some not-so-well-motivated politicians in sponsoring initiatives,

legislation, or lawsuits that tell the minority community just how far our relations have

regressed, how little others value their welfare, their children, their very lives. What

was once unthinkable is now upon us. We are regressing. Is this country really going
to go backwards in a serious way—will we really continue to move toward the
resegregation of our society?

Id. (emphasis added).

1 22. See infra Table 2.

1 23. Remarks ofABA President William Paul Before the AALS House of Representatives,
Washington, D.C., in Proceedings ofthe AALS 2000 Annual Meeting, at 202-03 (Jan. 6, 2000) (on
file with author).

1 24. Nathan Glazer, In Defense ofPreference, NEW REPUBLIC, Apr. 6, 1 998, at 1 8, 24.
125. See William G. Bowen & Derek Bok, The Shape of the River: Long-Term



2000] THE CHALLENGE TO DIVERSITY 8

1

admission policies in colleges and universities, which they were the first to

document, Bowen and Bok have shown the crucial role those policies played in
providing the means of access to leadership positions in American society by
African-Americans.

,26
While their study does not include law school adm iss ions,

I have no doubt that a similar study would produce similar results.
127

Nonetheless, what I find most significant is the change in the numbers over

time. In 1965, when affirmative action became official U.S. government policy,
the legal profession in the United States consisted almost entirely ofwhite men.

Only three out of every 100 lawyers were women; less than one percent were
African-American; and the number of other minority lawyers was so small that
it was not even tallied in the reporting sources. 128 The Bureau ofLabor Statistics
reported in January 1999 that of912,000 lawyers employed in the United States,
28.5% were women, four percent were African-American, and three percent were
Hispanic.

129
Asians were not reported separately. Although Boalt Hall's special

admission policies were not based on sex, the rising application rate of women
to law school has been the major success story of the decades after 1960:

between 1965 and 1985, the proportion of women J.D. students in ABA-
approved schools went from four percent to forty percent ofthe total.

130
Today,

women constitute fifty-eight percent of the student body at Boalt, and the
entering class of 2000 was sixty-four percent female. 131

These numbers say something vitally important about our concept of
ourselves as a society. The ideal of American democracy—equal justice under
law—ultimately must rest on public confidence that the system ofjustice is fair
and even-handed in its treatment of all people regardless of their status or

condition. Thus, it is essential that all of the people in our nation be able to

sustain an abiding trust in the fairness of the rule of law. Otherwise, they may
not be willing to obey the law. Yet today that trust has been severely tested. The

Consequences of Race in College and University Admissions ( 1 999).
1 26. See id.

127. See Deborah Rhode, Legal Education: Professional Interests and Public Values, 34

Ind. L. Rev. 32 (2000) (discussing a 1999 survey of students at two leading law schools who

reported positive effects of diversity on their educational experience).

1 28. See Fred B. Weil, The 1 967 Lawyer Statistical Report, National: Distribution
OF WOMEN Lawyers, 1948-1966 (Table 4) (reporting 2.8% women in 1966) (American Bar
Foundation, 1968); "Report of the Advisory Committee for the Minority Groups Study," 1967

Annual Meeting, Proceedings, Part One, Section I, at 160 (reporting 1.3% Negro lawyers in the

legal profession) (AALS, 1968).

129. U.S. Bureau of Labor Statistics, Employment and Earnings, Jan. 1999, Table 11,

Employed Persons by Detailed Occupation, Sex, Race, and Hispanic Origin, at 178.

1 30. Official ABA Guide to Approved Law Schools, Legal Education and Bar
Admission Statistics, 1963-99, at 450 (2000 Edition) (reporting total J.D. enrollment for 1965-

66 as 56,510 and total women J.D. enrollment as 2374 (4.25%); for 1985-86 as 1 18,700, and as
47,486 (40%)). The most current year reported is 1998-99, when total J.D. enrollment had risen

to 125,627, of whom 57,952, or 46% were women. See id.
131. See 2000 Annual ADMISSIONS Report (Boalt Hall, Berkeley, Cal.), 2000, at Table III.



82 INDIANA LAW REVIEW [Vol. 34:55

poor, the underprivileged, and various other groups who remain outside the
mainstream of our country do not have full confidence that the law treats all
persons fairly and with respect. We can help allay this mistrust by making sure
that the future lawyers, judges, and law teachers of this country are more
representative than they now are ofthe nation as a whole. The need to diversify
the legal profession is not a vague liberal ideal; it is an essential component of
the administration ofjustice. The legal profession must not be the preserve of
only one segment ofour society. Instead, we must confront the reality that ifwe
are to remain a government under law in a multicultural society, the concept of
justice must be one that is shared by all our citizens.

As Justice Ruth BaderGinsburg observed in her eloquent dissent xnAdarand
Constructors, Inc. v. Pena: "Bias both conscious and unconscious, reflecting

traditional and unexamined habits of thought, keeps up barriers that must come
down if equal opportunity and nondiscrimination are ever genuinely to become
this country's law and practice."

132 As a child, I saw that bias at work, up close
and first-hand. I have not forgotten the effect it had on the African-Americans

in the rural South who were its intended targets. Nor have I forgotten the mission
it awakened in me to do everything within my power to end the legally
entrenched injustice on which it was based. Although we as a nation have made
great strides in the past forty years since Brown was decided, we have not yet
come close to achieving true racial equality. Yet without affirmative action, the
number of enrolled minority students is likely to be pitifully small in the most
prestigious public law schools. As Table 2 shows, aggressive outreach and
recruitment efforts in 1998 and 1999 have raised Boalt Hall's yield well above

the low point of 1997.
133

However, the number of African-Americans, for
example, is still less than half of what it was in 1995 and 1996. Even greater

efforts will be needed in future years, and we must accept that those efforts will
be required every year for an indefinite period. We cannot afford to give up the
struggle now.

132. 515 U.S. 200, 274 (1995) (Ginsburg, J., dissenting) (citation omitted).

133. At the undergraduate level, the overall number of African-American, Hispanic, and

Native American freshmen who will enter the University of California in Fall 2000 is expected to

rise to 7336, slightly higher than the 7236 who enrolled in 1997, the last year of affirmative action

for undergraduates. But the numbers continue to drop at the two elite UC campuses, Berkeley and
UCLA, where fall enrollment of freshmen will be 1 169 and 1449 respectively in 2000, compared

to 1778 and 2010 in 1997. See Barbara Whitaker, Minority Rolls Rebound at University of

California, But Disparity Persists at Main Campuses, N. Y. TIMES, Apr. 5, 2000, at A 1 2. The Fall
2000 entering class at Boalt Hall has 270 students, ofwhom seventy-seven are people ofcolor, but

only twenty-six of these are non-Asians. See 2000 Annual Admissions Report, supra note 131,

at Table IV.



2000] THE CHALLENGE TO DIVERSITY 83

TABLE 1
All Non-Asian

People of Color People of Color Class size

1999 UCB 60 25 269
UCLA* 88 22 237
UCD 44 20 161

1998 UCB 81 33 269
UCLA 76 27 277
UCD 47 17 183

1997 UCB 62 15 268
UCLA 132 50 381
UD 38 14 172

* Does not include 52 1 Ls whose ethnic/racial data was m stakenly not counted.



84 INDIANA LAW REVIEW [Vol. 34:55

TABLE 2
Minority Law Students Admitted and Enrolled in California and Texas

Fall 1995 through Fall 1999 |

Admitted Enrolled

Fall 1995 UCB UCLA UCD UT UCB UCLA UCD UT

African-

American
77 82 27 91 21 20 3 38

Hispanic;

Mex-Am
79 87 76 92 36 29 21 64

Native

American
9 10 9 n/a 5 3

"3

n/a

Asian;

Pacific

Islander

113 180 125 71 36 62 26 28

Fall 1996

African-

American
77 104 27 65 20 19 4 31

Hispanic;

Mex-Am
85 108 69 70 28 45 16 42

Native

American
10 10 6 n/a 4 5 1 n/a

Asian;

Pacific

Islander

129 186 162 93 46 48 22 30

Fall 1997

African-

American
18 21 20 11 I 10 5 4

Hispanic;

Mex-Am
46 74 50 40 14 39 6 26

Native

American
2 5 7 n/a 1 3 n/a

Asian;

Pacific

Islander

149 200 128 108 47 82 24
39



2000] THE CHALLENGE TO DIVERSITY 85

TABLE 2 (cont'd)
Minority Law Students Admitted and Enrolled in California and Texas

Fall 1995 through Fall 1999

Admitted Enrolled

Fall 1998 UCB UCLA UCD UT UCB UCLA UCD UT

African-

American
32 18 18 25 8 8 3 8

Hispanic;

Mex-Am
60 47 52 63 23 16 12 30

Native

American
4 7 7 n/a 2 3 2 n/a

Asian;

Pacific

Islander

143 167 185 93 48 49 30 29

Fall 1999

African-

American
29 19* 19 32 7 3* 6 7

Hispanic;

Mex-Am
57 58* 62 60 16 18* 14 32

Native

American
3 5* 6 n/a 2 1* n/a

Asian;

Pacific

Islander

117 156* 137 72 35 66* 24 28

* Does not include 52 lLs whose ethnic/racial data was mistakenly not counted.

Sources: UC Office of the President, 9/10/99 (http://www.ucop.edu/acadadv/
datamgmt/lawdata); UT Office of the Law School Dean.