1. Balancing the Scales
On April 4, 1968, amid news of war abroad and revolt at home, came the devastating report that Dr. Martin Luther King Jr. was dead. The thirty-nine-year-old civil rights leader had been killed by a sniper outside his hotel room in Memphis, Tennessee. Sadness mingled with frustration and demoralization as the nation mourned the loss of yet another figure—after President John F. Kennedy, Malcolm X, and Medgar Evers—in America's crusade for racial justice and equality. The victories for which King and others had fought so hard—school desegregation, antidiscrimination legislation, and minority hiring programs—had been slow to produce the opportunities promised to blacks and other minorities in this country.[1]
Several years earlier, on the hundredth anniversary of the signing of the Emancipation Proclamation, King had delivered his powerful "I Have a Dream" speech on the steps of the Lincoln Memorial. He spoke longingly of a world in which his children might be judged by the "content of their character" rather than the color of their skin. But he reminded the nation that America had fallen short on its promise "that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness." Wearing a button that said "Jobs and Freedom," King stated,
It is obvious today that America has defaulted on this promissory note in so far as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check; a check which has come back marked "insufficient funds." We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so we've come to cash this
One year later, the United States Congress passed the Civil Rights Act of 1964, prohibiting discrimination based on race, sex, ethnicity, and na tional origin.[3] This legislation achieved important equalities under the law but failed to achieve equality as a result, leaving the underlying ideals of the civil rights movement unfulfilled. Dr. King spent the last years of his life advocating affirmative action programs that would realize the promise of equality. He compared affirmative action programs to the GI Bill of Rights and stated that the policy of special treatment that America had adopted for millions of veterans after World War II had "cost far more than a policy of preferential treatment to rehabilitate the traditionally disadvantaged Negro would cost us today."[4]
At his death, Dr. King's message of unfulfilled promises sat heavy on the public conscience. From the U.S. president on down, officials across the country vowed to extend the promised opportunities so long denied to blacks and other minorities. Administrators at the University of California were no exception. Like universities across the nation, the University of California remained predominantly white and male, despite the charter of the university to admit a "representation of students … [so] that all portions of the state shall enjoy equal privilege therein."[5] The assassination of Dr. King served as a catalyst for action and led UC President Charles Hitch to declare, "Dr. Martin Luther King was one of the great Americans. His courage and his character inspired the world. One of his great services to our Nation was to remind us by word and deed, that the Nation's constitutional rights had not yet been extended to all our citizens. We must now honor his memory by assuring that the opportunity and justice he sought for that ‘other America’ be realized."[6] Echoing President Hitch, Berkeley Chancellor Roger Heyns called on the faculty to lead the fight against discrimination in education and employment. The chancellor stated, "It is my personal belief that we must develop a sense of urgency. We have to grab hold of these problems where we are—it is not a question of what someone else should do. Let us re-examine our consciences, then our priorities, and then act."[7] And at the law school on campus, known as Boalt Hall, Dean Edward Halbach and the law school faculty "renewed and expanded [their] commitment to increase the representation of minority groups in the law school."[8] The law school had opened its doors in 1911 and had enrolled through the years more than six thousand students, but[9] only twenty-two had been African American, twenty had been Latino,[10] and far fewer had
The previous five years had been an awakening—a process of realization that racial inequalities in this country ran deep and wide. Beginning in the summer of 1963, small groups of law students from Boalt— mostly white, as were almost all Boalt students then—traveled to places like Georgia, Mississippi, and North Carolina to work with black lawyers who were challenging racial prejudice and discriminatory practices. Recounting their experiences in the student newspaper, the Writ, they described the inequities of having to drive forty-five miles round-trip just to be served a hamburger if you were black, and they detailed the constant apprehension that black civil rights lawyers felt of being shot or beaten. They told of the prejudice of the courts that allowed segregated courtrooms, permitted witnesses to be addressed as "niggers," and sustained "the most absurd objections."[12]
One student also related his experience of being an "other" as a white student working in a black community. Describing the conditions in which a law clerk lives in the South, he wrote, "Life is confined to the Negro community, physically, morally, and culturally. [The student] becomes what I like to call an ‘obvious person.’ … This is not to imply constant hostility, rather the same kind of attention that a Negro would receive in one of the ‘better’ social spots in San Francisco. When the experience is new it is uncomfortable to say the least. I don't know that anybody ever gets used to it, but the initial apprehension seems to be the worst part."[13]
Boalt students who traveled to the South helped to create an awareness in the law school of racial problems and a climate of opinion on what should be done to alleviate them.[14] But one did not have to look as far away as the South to understand discrimination. The city of Berkeley had recently undergone a racial transformation that had turned a virtually allwhite suburb into a racially mixed city with numerous tensions and frustrations. By 1960, as a result of black migration from the South after World War II, the city was one-fifth black. As one historian recounted, "Berkeley's blacks lived in a corner of the city remote from the University. One seldom saw a black on campus, black shoppers were not welcome in downtown Berkeley, and both school segregation and discrimination in employment and housing were common."[15] Eugene Swann, a black student who graduated from Boalt in 1962, knew this all too well. While in law school, he and his wife had been discriminated against in the rental of an apartment on Hillegass Street in Berkeley and brought suit under the newly enacted Unruh Civil Rights Act—a California statute pro
Drawing heavily from the southern movement organized by black college students who called themselves the Student Non-violent Coordinating Committee (SNCC), Berkeley student activists formed the Berkeley Congress of Racial Equality (CORE) to protest job discrimination.[17] Throughout much of 1964, CORE and its allies sponsored demonstrations at Lucky's stores in Berkeley, at the Sheraton-Palace Hotel, along auto row in San Francisco, and at the Oakland Tribune. In September 1964, possibly because of pressure from the business community, the University of California banned students, including CORE, from passing out literature, soliciting funds, or organizing support from card tables set up at the edge of campus. This ban led civil rights workers and other student activists to attack the new rules and move their activities onto the campus. Following the administration's reprisals, students demanded and won the right to conduct all sorts of political activity throughout the campus. The student uprising was known as the Free Speech Movement and, coupled with the civil rights movement, antiwar movement, and equal rights movement, prompted students at Berkeley and across the nation to question the assumptions underlying the social order in America.[18]
Though formal equality had been granted in the Fourteenth Amendment—which promised equal protection—and again in the Civil Rights Act of 1964—which prohibited discrimination—the doors of opportunity remained largely closed to minorities. Racial inequality clearly had much deeper roots and was not simply the product of racial prejudice and intentional discrimination. Rather, inequality appeared to be an almost unavoidable outcome of patterns of socialization that were "bred in the bone." Discrimination, "far from manifesting itself only (or even principally) through individual actions or conscious policies, was a structural feature of U.S. society, the product of centuries of systematic exclusion, exploitation, and disregard of racially defined minorities."[19]
In 1965, the recognition of this led President Lyndon B. Johnson, in a speech delivered at Howard University, to describe the Civil Rights Act of 1964 as merely a beginning."That beginning," he said, "is freedom. … [It] is the right to share fully and equally in American society—to vote, to hold a job, to enter a public place, to go to school. It is the right to be treated in every part of our national life as a person equal in dignity and promise to all others." But he went on to say that "freedom is not enough":
It is not enough to just open the gates of opportunity. All citizens must have the ability to walk through those gates. This is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity—not just le gal equity but human ability—not just equality as a right and a theory, but equality as a fact and as a result. …
Equal opportunity is essential, but not enough. Men and women of all races are born with the same range of abilities. But ability is not just the product of birth. Ability is stretched or stunted by the family you live with, and the neighborhood you live in, by the school you go to and the poverty or the richness of your surroundings. It is the product of a hundred unseen forces playing upon the infant, the child, and the man.[20]
At Boalt, this recognition—that inequalities resulted from structural features and not just individual actions—led a group of students to ex amine how the admissions process at the law school worked or did not work to exclude minorities.[21] Boalt had never prohibited minority students from entering the law school, but minorities had been effectively excluded by other means. The students formed the Committee on Aid to Minority Groups and, with the help of the dean of admissions and a few law professors, identified several problems in enrolling more minority students at the law school. First, they discovered "a serious lack of information about educational opportunities" in minority communities, which contributed to a lack of interest in the legal profession. Second, they found that interested minority students were often deterred from pursuing a legal career, because employment customs and prejudice in the legal profession would make it difficult for them to obtain jobs.
In addition to these problems, the committee identified two other hurdles for potential minority applicants: entrance requirements for the law school and the financing of three years of legal education. Noting that many law schools relied heavily on past grades as well as scores from the Law School Admission Test (LSAT), the committee observed that these two factors were especially disadvantageous to minority students. With respect to grades, the committee found that an "economically deprived student coming from a minority group is usually concerned with ‘getting by’ financially rather than with competing for honors." With respect to the LSAT, they asserted, "it is well known that Negroes tend to score lower because of their socioeconomic backgrounds. Many don't even have the $15 to take the test." In addition, "they are unaccustomed to taking multiple choice tests." In view of these considerations, the committee devoted itself "primarily to getting qualified applicants interested in law, and providing financial assistance to those in need."[22]
The awakening that was taking place at the law school did not escape the attention of Edward Halbach, who had been appointed dean of Boalt Hall in April 1966.[23] At age thirty-four, he was the youngest dean in the history of the law school, and he was coming to his own deeper understanding of racial problems. Dean Halbach had grown up in a small city in Iowa with little awareness of the continued seriousness of racial issues. Not until 1953, when a good friend declined an invitation to his wedding in a Chicago suburb because he thought he would feel uncomfortable as possibly the only black guest, did Halbach realize "how life was for blacks." There were few minority students at Boalt, and professors and students alike had limited exposure to issues of race and ethnicity. "Like universities elsewhere," Halbach recalled, "without the benefit of more minority students we were all running behind."
Halbach recognized the need to take affirmative steps to increase minority representation at the law school and encouraged student and faculty efforts to do so. Efforts to increase minority enrollment were motivated by "a desire to be responsive to the lack of adequate representation of minority persons in the profession, and … by a belief that the presence of members of minority groups would add to the educational quality of the school." Nationally, minorities constituted just over 1 percent of the bar and 1 percent of the law school population. In 1964, the total minority enrollment in accredited American law schools was 700—out of a total of more than 54,000—and 267 of these (more than a third) were enrolled in historically black schools. At Boalt, the situation was much the same; the presence of a single minority student was exceptional.[24]
The perceived problem at Boalt was the lack of minority applicants, and so a small group of administrators, faculty, and students conducted outreach to minority students at college campuses. This early effort resulted in a small increase in the number of minority applicants in 1966, but it was not enough. In the spring of 1967, Dean Halbach entered into a conversation with Homer Mason (class of 1969)—one of four black students in the first-year class—about what more could be done to increase minority applications, particularly through the black organizations in which Mason was active or had good contacts.[25] Mason had some ideas and was eager to help. He was the third in his family to pursue a legal career. His grandfather had been the first. After being emancipated from slavery, his grandfather had pursued higher education, and in 1893 he became the third black lawyer in Texas. His father followed in his grandfather's footsteps and became one of the small number of black attorneys in the country.
Mason brought Dean Halbach into the black community to speak about Boalt and the value of a legal education. Together they went to black fraternities, sororities, churches, and other student and community groups to get the word out that Boalt was a good place to go to law school. Mason recalled, "We wanted to let them know that we were looking for outstanding students, and that they were welcome."[26] The outreach paid off, and the number of black applicants increased, even if only incrementally. Reflecting on the effectiveness of this limited but targeted outreach, Dean Halbach remarked, "The time I spent with Homer was extremely valuable and eventually had a multiplier effect."[27]
Dean Halbach found the few minority students enrolled at Boalt to be very effective at contacting potential minority applicants and recruiting those applicants to come to the law school. Albert Moreno (class of 1970) was a notable example.[28] Moreno was a student from Calexico, California, who entered Boalt as the only Latino in his class in 1967. He worked with two other Latinos in the school at the time to contact undergraduate students through organizations such as MEChA (Movimiento Estudiantil Chicano/a de Aztlan) and encourage them to apply to law school. Moreno and his colleagues were advocates for promising Latino applicants in the admissions process and persuaded them to come to Boalt if they were admitted. These efforts helped to increase the number of Latinos in the student body and, in turn, helped to sustain outreach and recruitment efforts at the law school.[29]
Halbach relied on the judgment of minority students such as Albert Moreno and Homer Mason regarding how best to approach applicants: "Who else would get to them; who else would be as credibly enthusiastic to have them come to Boalt?"[30] While the few enrolled minority students reached out to minority applicants, the dean and several faculty members solicited scholarship money to enable admitted students to come to Boalt. Together, these efforts were important steps in increasing minority enrollment. They constituted what would later be described as "soft" affirmative action—outreach, recruiting, and financial aid. As had been pointed out by the Committee on Aid to Minority Groups in 1965, however, "soft" affirmative action was not enough. The admissions process itself presented obstacles to minority applicants, suggesting a need for "hard" affirmative action—that is, race-conscious admissions.
Minority students did not generally have grades and LSAT scores as high as those of their white peers. That is not to say that they were unprepared for law school—they had strong college grade point averages and respectable LSAT scores. But they were not competitive in the admissions process—they did not often have honors grades, and their LSAT
With a dramatic increase in demand, the qualifications for acceptance rose. In 1960, any applicant who had a B average as an undergraduate could obtain admission to Boalt without regard to his or her LSAT score. In 1967, the median LSAT score of those admitted to Boalt was 638 (out of a possible scaled score of 800), and the median undergraduate grade point average for the entering class was 3.5 (out of 4.0).[33] When they applied to Boalt Hall in 1967—the year that the numbers of minority applications first began to grow—many minorities found that their qualifications, which would have been sufficient in 1960, were no longer enough to win them a spot at the highly selective law school.
Recognizing that escalated standards would exclude even promising minority applicants, the faculty and the Admissions Office flexibly modified the standards for minority applicants. At the time, admissions decisions were made through the Admissions Office with faculty consultation and sometimes student consultation. If a minority applicant had a lower grade average and test score, relatively speaking, but was "suitably qualified to pursue a legal education," and had something to offer the law school in terms of a different life experience, then the Admissions Office would give special consideration to that applicant.[34] In this way, the Admissions Office acted in a race-conscious manner, giving rise to "hard" affirmative action.
The informal affirmative action program that emerged by early 1968 was slowly making headway, but remained limited in scope. The program depended on a few minority law school students to conduct outreach and recruiting, and on several administrators to identify and admit a small number of promising law school candidates. In April 1968, however, the assassination of Martin Luther King Jr. gave further impetus to the affirmative action program, leading the faculty to formalize and greatly expand the program, which they referred to as the "Special Admissions" program.
As news of the assassination spread across the country, the nation seemed ready to erupt. The country was sinking deeper into the Vietnam War and drafting a disproportionate number of soldiers from urban minority communities where tension was high and morale was low. In the previous four years, racial riots had broken out in a number of major
By April 1968, the president had received the report but had not yet acted on it. However, confronting the possibility of a new wave of riots in reaction to King's death, President Johnson called for "constructive action instead of destructive action in this hour of national need" and urged the passage of legislation adopting many of the recommendations made by the National Advisory Commission.[38] In mourning her slain husband, Coretta Scott King pleaded with the nation to make real his dream of racial equality.[39] A leader of the National Council of Churches stated, "Grief at a time like this is not enough."[40] He asked Americans to deliver "the greatest outpouring of cards, letters, and telegrams to Washington the nation has ever known," to bring about change in America. And at Boalt, a student writing for the Writ called for action: "We need no more reports." Reflecting the frustration of many, she wrote, "[Despite the] avalanche of words … on the subject of America's race problem, … amazingly little has been done."[41]
It was certainly true that very little had been done in the legal profession. In 1968, the legal profession remained almost entirely white and male. African Americans constituted not much more than 1 percent of the bar, and the numbers of other minority lawyers were so small that they were not even tallied.[42] And although Boalt had begun to take affirmative steps to increase minority enrollment, the total number of minorities ever enrolled at Boalt was little more than the age of the law school.[43]
Professor Herma Hill Kay was one of many faculty members at Boalt who found this disquieting. Kay had grown up in the South and understood how pervasive racial inequality was in America. She was also one of
In the spring of 1968, following King's assassination, Boalt renewed and expanded its commitment to increase the number of minorities at the law school. The dean of admissions recounted this history in a memo to the faculty one year later. He wrote, "It was quickly apparent that there were relatively few applications from minority groups in the previous years—a number so small as to frustrate our goal.Our first step … was to stimulate applications. … [W]e accelerated our efforts to inform undergraduates from minority groups of the opportunities available in the law."[46] Minority student organizations at Boalt designed and operated outreach and recruitment programs in consultation with the Dean's Office, which provided financial support in conjunction with the Boalt Hall Student Association.
In addition to expanded outreach and recruitment efforts, at the prompting of Boalt professors Larry Stone and Adrian Kragen, the faculty established the Martin Luther King Fund, to which law firms throughout California contributed, making available scholarships and financial aid to students choosing to attend Boalt.[47] As the dean of admissions later observed, financial aid played a pivotal role in enabling minority students to attend Boalt:
[It was] apparent … [that] [w]ithout the financial assistance, most [minority] stu dents would probably not have been able to attend law school at all, or, if they did attend, would have been required to work an excessive number of hours each week in order to earn the amounts required to survive. The need [for] and importance [of] financial assistance cannot be overstated. Effectively none of the students have outside sources of financial assistance. Most have been self-supporting throughout their undergraduate years.[48]
Increased financial aid coupled with aggressive student outreach and recruiting constituted the "soft" elements of an affirmative action pro gram that was conceived in the years prior but came into full operation following Martin Luther King's death. The "hard" elements of the affirmative action program involved the admissions process itself. Outreach and recruitment were only effective if qualified minorities were admitted to Boalt. Because the law school had become increasingly competitive and many minority applicants had relatively lower grades and test scores,
Under the Special Admissions program, the rapidly increasing work of examining individual applications was given to an Admissions Committee, staffed initially by faculty members who were later assisted by students appointed by the Boalt Hall Student Association. All applicants were evaluated primarily on the basis of their predicted grade average (PGA), which was based on a formula that weighted an applicant's undergraduate grade point average (UGPA) and his or her LSAT score. At the time, the formula weighted LSAT scores 70 percent and UGPAs 30 percent.[49] The PGA had been designed by the Educational Testing Service to predict the first-semester grades of a law student. Boalt used the PGA to select students who were likely to successfully complete their first semester and, by logical extension, their three years of law school. In a large applicant pool, with more students capable of completing law school than there were seats, Boalt also used the PGA to distinguish between capable applicants. The use of the PGA in this way had a disparate impact on minority students.
Some believed that the PGA was useful in predicting the obvious— that an applicant with a 700 LSAT and a 3.8 UGPA was likely to excel academically, and an applicant with a 500 LSAT and a 3.0 UGPA might have trouble competing. But it was not as useful in differentiating the middle—the hard ones—and was unreliable in predicting the applicants at the lower extremes.[50] More important, the PGA seemed to under-predict the performance of many minority students, partly because the UGPA did not adequately reflect the potential of minority applicants to do well in law school—many minority students had to work as undergraduates to an extent that might have affected their grades. This was also due to the limited ability of the LSAT to predict performance in the first place. On a validity scale of. 00 (no relationship between test scores and first-semester grades) and 1.00 (complete congruence of the two), the LSAT produced a validity down in the. 33–.35 range.[51]
This low validity meant that the LSAT was limited in its ability to explain the variance in first-year grades. Statisticians often square the validity correlation coefficient to measure the percentage of variance in performance that a predictor explains.[52] With a validity of. 33 to. 35, the LSAT could be said to explain only 11 to 12 percent of the variance in firstyear grades, leaving about 88 percent unexplained. To put this in perspective, one could more accurately predict a person's height on the basis
The LSAT—far from adequately predicting success in law school— produced results that bore an uncanny resemblance to the social hierarchy in America. This was no accident. The LSAT had been derived from IQ (intelligence) tests designed by eugenicists in the early part of the century, who believed that the test measured a biologically grounded, genetically inherited quality that was tied to ethnicity.[55] Henry H. Goddard, who brought the IQ test to America, hoped to use it to "recognize limits, segregate, and curtail breeding to prevent further deterioration of an endangered American stock, threatened from without and by prolific reproduction of its feeble-minded from within."[56] The first large-scale use of the test occurred during World Wars I and II, when the military used IQ tests to sort soldiers by their "inherent abilities." Not surprisingly, the tests faithfully reproduced the social order. "Officers scored higher than enlisted men, the native-born scored higher than the foreign-born, less recent immigrants scored higher than more recent immigrants, and whites scored higher than Negroes."[57] The results of the tests led directly to new laws curbing immigration and were used by segregationists to argue that "the education of whites and colored in separate schools may have justification other than that created by racial prejudice."[58]
Following World War II, the military tests were adapted to university admissions and transformed by the newly formed Educational Testing Service (ETS) into standardized entrance exams. In 1947, the ETS developed the LSAT at the request of several prestigious law schools, including Harvard, Yale, and Columbia, who were beginning to experience a greater demand for admissions.[59] Far from being color-blind, the test was developed at a time when the legal profession affirmatively sought to exclude people based on their race and ethnicity.[60] The LSAT was pretested on a population almost entirely composed of upper-class white men.[61] This proved to be a distinct liability for women and particularly for minorities. Minorities sat low in America's social hierarchy, and their LSAT scores reflected their position. While the LSAT had a correlation with first-year law school grades in the. 33–.35 range, the test had a correlation with racial group membership (as between blacks and whites) in the. 52–.68 range. To compare, first-year grades had a correlation with race in the. 31–.47 range. Such bias in a test whose predictive ability was based
Despite scoring low on a test supposedly designed to predict "inherent ability," minority students who were given the opportunity to study law showed that they could outperform the predictions of the LSAT. John Huerta (class of 1968), a Mexican American transfer student to Boalt Hall, was a case in point.[63] Huerta had grown up in the Watts area of Los Angeles and graduated with honors from Los Angeles State College, where he had been elected student body president and "outstanding man of the year." In 1965, upon graduating, Huerta applied to Boalt, but was denied admission because his LSAT score was low—in the fourteenth percentile. So he went to law school at Hastings, across the bay in San Francisco, and made the top 1 percent of his class. After his first year, Huerta transferred to Boalt, where he excelled and soon became an associate editor of the California Law Review— the prestigious law journal at Boalt.
As a third-year student, John Huerta gave an interview to the student newspaper, during which he discussed the limited predictive value of the LSAT and questioned its continued use for some minority students. He stated, "There [is] substantial and persuasive evidence that the tests are culturally biased. Therefore, most minority applicants will make a poor showing on [them]." He recommended waiving LSAT scores unless they would help the minority applicant, pointing out that the few minorities who do well on the test demonstrate that they are adept within both cultural frameworks—the mainstream white cultural framework and their own—and should be admitted. However, Huerta suggested, "the decision to admit the minority student who scores low on the LSAT should be based on other factors, say grades and recommendations."[64]
Recognizing the disparity of opportunities between minority and nonminority applicants, and acknowledging the limitations of the LSAT in identifying promising candidates, the Admissions Committee considered the particular circumstances of minority applicants. As one admissions officer noted, a minority applicant 's grades "may reflect a clash with his education[al] institution or an effort finally to catch up after an inferior educational background." In addition, the officer stated, "standardized tests such as the LSAT [may not be] … accurate predictors of ability of those whose background is not mainstream American."[65]
Minority applicants were given special consideration, which meant disregarding lower grades and test scores, and admitting minorities based on other information in their files that indicated an ability to succeed in law
In reviewing the affirmative action program after its first year of operation, the Admissions Office reported that, as had been expected, "the students admitted so far perform in law school better than the standard predictors indicated."[68] The dean of admissions noted in a memo to the faculty that "most of the students who started in September 1968, are still with us."[69] Only two had withdrawn, for reasons unrelated to academics, and only two appeared to be in serious academic difficulty, but the dean observed that these two "would likely be able to cure their deficiencies by the end of the year." The dean counted the program as a success, not only in terms of the increased numbers of minority students, but also in terms of the contributions of these students to the law school and to the legal profession. He stated,
[T]he attitude of the students toward law school, toward legal education, and to ward the profession of law is one of serious enthusiasm and determination. Of equal importance … are the contributions of those students to the school itself. Their presence has contributed incalculably to the enrichment of the educational experience of the other 90% of the student body. Nor is the enrichment limited to the students. The faculty, both in the subject matters of their instruction and individually, have been challenged and stimulated by the ideas and experiences of these students. The long-run benefits in terms of curricular reform and improvement and in terms of social awareness can only be measured at some future date.
Ultimately, the greatest contributions remain to be made by these students as leaders in all the ways Boalt graduates serve. We expect that, in the tradition of our profession, these men and women will be an important source of political and business leadership, some for their communities, some for other "communities" in society, and some for society as a whole.[70]
In the following years, Boalt admitted an increasing number of mi nority students, including not only African Americans and Latinos, but also Asian Americans and Native Americans. For example, Asian Americans, who had numbered only one or two per class in the 1960s, increased to eight in the class that entered in 1969. Neil Gotanda (class of 1972) was one of the Asian American students admitted that year. Gotanda was a
| 1967 | 1968 | 1969 | 1970 | 1971 | |
| SOURCE: "Statement of Faculty Policy Governing Admission to Boalt Hall and Report of the Admissions Policy Task Force," August 31, 1993, p. 11 (for years 1968–1971); Boalt Hall Registrar's Office (for year 1967). | |||||
| Percentage of Class | 2 | 7 | 14 | 24 | 34 |
The increased number of minority students at Boalt had an appreciable effect on the law school. For the first time in its history, the norms and assumptions underlying the historically white male institution came under fire. Reflecting the tension in the newly diverse law school, a minority student wrote in the student newspaper, "Admitting non-whites to the system means more than taking black, brown and yellow bodies and putting them into slots tailored for whites—it means changing the very nature of that system. And this I assure you we are determined to do.[73]
Minority students at Boalt, as well as at universities across the country, called attention to the need for change in the traditional curriculum. In a series of strikes known as the Third World Movement that began at San Francisco State University in the fall of 1968 and arrived in Berkeley in late January 1969, minority students demanded more relevance in their curriculum.[74] A black law student at Boalt explained that traditional education "has had the effect of reinforcing the values of the [white] majority, while negating the contributions and cultural roles of [minorities]."
Referring specifically to legal education, another black student stated, "Since there is only one system of law in this society it should embrace the frailties and conflicts of all people. A law school curriculum should be relevant to the needs of [minorities], and those needs should be the subject of academic discussion and study." He asserted that white students had a stake as well in learning from other cultural perspectives and in learning alongside students of different cultural backgrounds. "We can learn to live together and respect each other only as equals," the student stated.[76]
This sentiment had been expressed by John Huerta in his 1968 interview with the school newspaper about the affirmative action program.[77] Huerta justified affirmative action not only in terms of closing the opportunity gap in America, but also in terms of closing the "understanding" gap. He remarked,
A few weeks ago Bobby Seale, a leader of the Black Panthers, spoke at this law school. During the questioning that followed his speech, a student asked him to explain what he meant by "police brutality." No student in law school should have to ask that question. Yet most students here don't have any idea what "police bru tality" is all about. … If we had the number of minority students here proportionate to those that exist in the out-of-law-school world, then white students might understand why minorities dislike the police, vomit at the thought of installment contracts, scoff at much civil rights legislation and a whole host of other matters.
He added, "White law students should want to be in a ‘real life’ situ ation; they won't learn about the lives and attitudes of minorities out of casebooks. To learn this they will either have to live and practice in minority communities or have a dialogue with minority classmates and professors."[78]
To the extent that professors responded to the concerns of minority students, courses at Boalt became more relevant, making room for discussion about how the law affected different communities. In addition, Boalt began to offer new courses such as "Corrections and Sentencing," "Slavery as an American Legal Institution," "Consumer Protection Seminar," "Children and the Law," "Patterns in Collective Bargaining," and "Civil Disobedience, Self Help, and Coercion."[79]
Outside of the classroom, minority students found relevance in community legal work. Latino law students were particularly active on this
The greater number of minority students at Boalt brought a new awareness of racial issues to the law school. Dean Edward Halbach, who had led the development of a formal affirmative action program at Boalt, recalled that prior to affirmative action, "We had only the benefit of a few minorities in our law school classes. The more minorities there were around and the more comfortable they became, the more we understood the extent and complex nature of racial problems in our society."[81]
Increased exposure to minority students had an effect on Robert Cole, a young professor who had been hired to teach at Boalt in 1961. Cole was Jewish and had come into the legal profession at a time when explicit barriers against Jewish people were just being removed. He was familiar with religious discrimination and sensitive to racial discrimination. Growing up in Chicago, he had Japanese friends who suffered through internment during World War II, and this affected him profoundly. But in a racially segregated city, he knew very few African Americans. He reflected, "Black people were far less visible to most whites then, and poor blacks were virtually invisible to them."[82] It was not until affirmative action brought significant numbers of minorities into the law school that Cole was able, at a more profound level, to understand the problems of blacks and other minorities and to realize the breadth and depth of racial disparity in this country.
The transition made by the law school from being virtually all white and male to being diverse, both in terms of race and gender—for at that time women were also enrolling in significant numbers, though without the assistance of affirmative action—was a difficult one. Common ground was needed to overcome the racial divide, and that ground did not come easily. Minority and nonminority students and faculty alike
White students and professors had to become a "great deal more sensitive" to minority students.[84] Individuals who before had made racist and sexist jokes or were too casual in their language now thought more about what they said. There was a heightened awareness, recalled Professor Cole, "that things that you took for granted could be insulting." John McNulty, a young professor who had been hired the year the Civil Rights Act was passed, agreed, and did what he could to make the students in his class feel comfortable at the law school.[85] McNulty had grown up in Buffalo, New York, which had received successive waves of immigrants, mostly from Europe, and was conscious of welcoming outsiders. Arriving at Boalt in the same year that the law school hired its first African American professor, John Wilkins, McNulty and his wife found they had a lot in common with Wilkins and his wife, and the two couples became friends.
Several years later, as minority students, particularly black students, began to enroll in significant numbers, McNulty was "conscious of treating every student with respect, from correctly pronouncing student names to responding to student concerns." One concern involved grading. At the house of a visiting African American law professor and her husband, a number of black students expressed concern that they were being discriminated against in the grading process. They also discussed their feelings and concerns about being a minority in a primarily white institution. The professor's husband (himself African American) empathized with the students, and told them that the toughest dilemma they would face in life would be knowing whether certain things happened to them because they were black or for some other reason. Professor McNulty was present and drew from the conversation an insight into the position of a minority person. This insight, he reflected, "revealed to me and verbalized the reality and difficulty of that position in a way better than I had ever heard it put before." He subsequently made a point of explaining
Despite the conscious effort by some to make Boalt a more welcoming environment for new students, minority students still had trouble adjusting to the predominantly white male law school. Students complained of continuing "insensitivity" and, in some cases, "latent hostility" toward minorities and women.[87] For Richard Delgado (class of 1974), a Latino law student who entered Boalt in 1971, the real divide seemed to be between young minority students and older white professors. He recalled feeling "tolerated, but not welcome" by many of the professors. Delgado was the son of Mexican immigrants and had been inspired to come to law school by the civil rights movement and the antiwar movement. He embraced the diversity of the law school, and was pleased to find students from different racial, economic, religious, and ideological backgrounds with whom he could relate. He had difficulty, however, relating to the majority of law professors at Boalt. "They seemed unapproachable and uninterested in minority students."[88]
Though Delgado earned high marks during his three years, he recalled that "not one professor encouraged me to try out for law review, to apply for a clerkship, or go into teaching." In his second year he won a coveted spot on the staff of the California Law Review. Delgado remembered that one day, when he was checking citations on an article for the journal, a professor came into the Law Review office and was startled to see a brown face. The professor's eyes looked at Delgado in surprise, seeming to ask, "What are you doing here?" Delgado felt uncomfortable. He felt like he didn't belong—he knew that he had entered a world that was historically reserved for the white elite. Delgado turned outside the law school for support and found a mentor in a young Latino law professor at another university who encouraged him to go into teaching, which he did, becoming one of the most prolific contemporary legal scholars in the country.[89]
Though most faculty and students agreed that the law school needed to reflect more accurately the community in which it existed, the means by which it would become more diverse were questioned from the outset, if not publicly then privately. Professor Jesse Choper, for one, held serious reservations about the affirmative action program at the law school.[90] Choper was a constitutional law scholar who had joined Boalt in 1965 after clerking for Supreme Court Chief Justice Earl Warren. Choper believed that Boalt had a moral interest in being race-inclusive, but he was not sure that that interest overpowered the constitutional interest in neutrality.
Immediately following the formal adoption of the affirmative action program in the spring of 1968, some began to question whether race-conscious admissions policies discriminated against whites. Foreshadowing cries of reverse discrimination, an interviewer for the Writ had asked John Huerta whether the efforts to recruit and help minority students reflected "racism in reverse." Huerta answered,
Minorities have been disadvantaged in every way as a group when compared with the white majority. The average black or brown person is caught very early in a vicious circle of discrimination, joblessness, poor housing, and inferior schooling. … [E]qual opportunity will not be realized by suddenly removing one or two of the barriers. An inequality has already been perpetrated. To remove that in equality requires special attention to be given in all respects … [to compensate for] harmful attention or inattention. [A] minority student must be recruited, tutored, and financed if he is just to have a "fighting chance" to compete academically with his middle-class and rich Anglo classmates who have not suffered an inferior education and environment all their lives.[91]
Claims of reverse discrimination were based on the difference in LSAT scores and undergraduate grade point averages between minority and nonminority students. Even though these differences did not consistently translate into success or failure at the law school, given the limited abil ity of grades and tests to predict performance, some white students and faculty resented the special consideration given to minority students. Competition for law school seats was getting fierce, and opponents of affirmative action objected to the fact that minority students were gaining admission with relatively lower scores.
In December 1971, after the law school had enrolled the highest percentage of minorities in its history—34 percent—the faculty quietly voted
Partly because they were not included in the decision-making process, minority students protested the faculty decision, viewing the new policy as a rollback of the school's commitment to increasing minority representation at the law school. The Black Law Students Association called for a boycott of classes, which 80 percent of the student body honored. At a press conference, a spokesperson for the Asian American Students Association stated, "The administrators promised us earlier that there would be no cutbacks in the special admissions program, and they have gone back on their promise." The student noted that the Special Admissions program had been pivotal in increasing Asian representation in the legal profession, particularly for Filipino students, who were the fastest-growing minority group in America but only numbered eight in American law schools, two of whom were at Boalt. Congressman Ron Dellums, an African American representing the Oakland area, lent student protesters his full support "in their attempt to impress upon the school administration the importance of continuing to recognize their obligation to serve the needs of all the people of the state rather than a select elite portion thereof."[94]
Students also garnered the support of several faculty members, such as Professor Robert Cole, who advocated the continued admission of significant numbers of minority students. He said that the larger number of minority students had raised the quality of his classes. He explained to other faculty members that minority students appeared to question his premises more closely than did their white counterparts. In previous years, when there had been fewer minority students, they appeared to be less willing or able to do so.[95] Professor Cole also argued for a more significant student role in the decision-making process. Admissions was one of many areas where the faculty was limiting student participation, and Cole felt strongly that as stakeholders in the development of the law school, student voices should be incorporated into the decision-making structure.[96]
A spokesperson for the Black Law Students Association demanded that the faculty call an emergency open meeting, declaring, "This is not
In 1973, the faculty adopted the "Faculty Policy Governing Admission to Boalt Hall." The policy established the general rule for the selection of applicants: "[A]pplicants shall be accepted for admission who on the basis of their academic achievement, LSAT scores and other data appear to have the highest potential for law study and for achievement in and contribution to the legal profession, legal scholarship or law-related activities."[99] The policy also provided for the special consideration of minority applicants, but limited the admission of such applicants to no more than 25 percent of the entering class. Special admission was to be given to members of racial or cultural groups "which have not had a fair opportunity to develop their potential for academic achievement and which are in need of adequate representation in the legal profession." The policy stated that the number of those specially admitted should vary with shifts in the quality and availability of applicants and also with the number of applications from the groups given special consideration who gained admission under the general rule.[100]
Under the 1973 policy, regular admissions and special admissions were conducted separately. Minority applicants with a PGA above a certain level were first considered in the regular admissions process. If not admitted through that process, they were considered in the special admissions process. However, minority students—with the notable exception of Japanese American and Chinese American students—were rarely admitted through the regular admissions process. Because Japanese American and, to a lesser extent, Chinese American students were successful in gaining admission through the regular process, the faculty decided in 1975 to eliminate and reduce, respectively, special consideration for these Asian subgroups.[101]
Competition for admission to Boalt stiffened significantly in the early 1970s, and many minority students found that their numerical qualifications kept them from being considered in the regular admissions process. While the entering class of roughly 270 students had been selected in 1960
The PGAs of African American, Native American, and Latino applicants, and of Asian American applicants other than Japanese and Chinese Americans, continued to be substantially lower than those of other applicants. It was clear to the Admissions Committee at Boalt that without a Special Admissions program that evaluated these groups separately, there would be little minority presence at the law school. To maintain more than a token minority presence, Boalt would have to give special consideration to groups that would otherwise be excluded.[104]
What was true at Boalt was true at other highly selective law schools and professional schools in the country—because of a disparity in grades and especially test scores between minority and nonminority students, affirmative action was necessary to achieve a racially diverse student population. Nevertheless, the special consideration accorded minority students angered those who had opposed affirmative action from the outset. Critics of race-conscious measures rejected the use of race to remedy the condition of minority groups in America, viewing any form of race consciousness as discriminatory. They failed to distinguish between raceinclusive affirmative action programs and race-exclusive segregation practices. They urged a return to a conception of racism that was based on specific acts of discrimination resulting in injury to an individual, rather than on structural forms of discrimination resulting in injury to a group. This view tended to rationalize racial injustice as a supposedly natural outcome of group attributes in competition.[105] In the context of highly competitive university admissions, this view supported the argument that the playing field was fair and that therefore minority students did not deserve to be admitted in preference to white students because they had lower grades and test scores.
In 1971, a white applicant to law school used this argument to sue the University of Washington Law School, lodging the first legal challenge to affirmative action. In DeFunis v. Odegaard, a white applicant denied admission to the law school charged the University of Washington with reverse discrimination when minority students with PGAs lower than his were admitted.[106] The state court ruled in favor of Marco DeFunis—the white applicant—and directed the law school to admit him. The University
Justice Douglas, however, dissented and asserted that the case was not moot, and that, given the significance of the issues raised, it was important to reach the merits of the case.[107] His dissent focused partly on the use of the LSAT in an admissions process that in every way resembled the admissions process employed at Boalt. Minority students were given special consideration; as a result, thirty-six of these students were admitted to the law school despite having lower PGAs than DeFunis's. Notably, forty-eight nonminority applicants with PGAs lower than DeFunis's were also admitted—twenty-three of them were returning veterans, and the remainder were admitted "because of other factors in their applications that made them attractive candidates despite their relatively low PGAs."[108] But what DeFunis objected to was not just the admission of students with lower PGAs, but the special consideration accorded minorities simply because of their race.
Douglas argued, however, that the presence of the LSAT in the admissions decision was sufficient to warrant the special consideration of minority candidates. The law school had not raised the argument of deficiencies in the test in its defense of affirmative action. Nevertheless, Douglas questioned the continued use of traditional criteria, especially the LSAT, in law school admissions. Quoting from a law journal article, he stated,
[L]aw school admissions criteria have operated within a hermetically sealed sys tem; it is now beginning to leak. The traditional combination of LSAT and [U]GPA … may have provided acceptable predictors of likely performance in law school in the past … [but] [t]here is no clear evidence that the LSAT and [U]GPA provide particularly good evaluators of the intrinsic or enriched ability of an individual to perform as a law student or lawyer in a functioning society undergoing change.[109]
He asserted that the law school's admissions policy could not be rec onciled with the goal of increasing minority representation, "unless cultural standards of a diverse rather than a homogenous society are taken into account." In his view, because the LSAT "reflects questions touching on cultural backgrounds," a law school may properly give minority applicants special consideration. Suggesting that the test was culturally biased as a result of its being norm-referenced to a majority white population, Justice Douglas added, "[M]inorities have cultural backgrounds
Immediately after the Supreme Court ruled in DeFunis, another white applicant—this time at the University of California Medical School at Davis—filed charges of reverse discrimination, bringing affirmative action programs under scrutiny once again.[112] Allan Bakke—the white applicant in Regents of the University of California v. Bakke—had been denied admission to medical school while minority students with lower grades and test scores had been admitted under an affirmative action program. The state court ruled in favor of Bakke, and in 1978 the case was appealed all the way to the U.S. Supreme Court. Affirmative action was on the block, and three of the best legal minds at Boalt—Professors Paul Mishkin, David Feller, and Jan Vetter—helped write three briefs on behalf of the University of California, the Association of American Law Schools (AALS), and the public law schools in California, defending affirmative action.[113] In the brief to the Supreme Court defending its program, the University of California articulated the necessity of a race-conscious admissions program to increase diversity not only at the medical school, but also at other highly competitive professional schools across the country:
Today, only a race-conscious plan for minority admissions will permit qualified applicants from disadvantaged minorities to attend medical schools, law schools and other institutions of higher learning in sufficient numbers to enhance the quality of the education of all students; to broaden the professions and increase their services to the entire community; to destroy pernicious stereotypes; and to demonstrate to the young that educational opportunities and rewarding careers are truly open regardless of ethnic origin.
Applicants for admission to professional schools greatly outnumber the avail able places. Until their cultural isolation is relieved by full participation in all phases of society, historically alienated minorities would be screened out by all racially blind methods of selection. There is, literally, no substitute for the use of race as a factor in admissions if professional schools are to admit more than an isolated few applicants from minority groups long subjected to hostile and pervasive discrimination.[114]
With respect to law schools in particular, the AALS filed an amicus brief, stressing the importance of affirmative action programs in increas ing minority enrollment. Over the previous decade, minority enrollment had increased from seven hundred (approximately 1 percent) in 1964 to more than ninety-five hundred (approximately 8 percent) in 1976.[115] Special admissions programs, the AALS asserted, had been pivotal in increasing not only the number of law students, but also the number of minority lawyers—a number that still remained "inordinately small at under 2 percent of the entire bar."[116]
According to the AALS, law schools were created and supported by the state to meet its needs for lawyers and legal services. Lawyers played a critical role in the public as well as private governance of our society, and the inclusion of minorities in the bar was required to achieve their participation in the governance of our society, public as well as private.[117] The AALS emphasized the public importance of the profession in decisions made daily by zoning boards of appeal, transportation departments, regulatory agencies, and all other bodies affecting the lives of people in a racially diverse society: "At times, perhaps often, these decisions will have a different impact upon minority communities than upon the white community. A minority presence in the decision-making process increases the likelihood that those differences will be recognized and taken into account."[118] The AALS added that in light of the need to understand and work across racial differences in a diverse society, significant minority enrollment at the law schools was important to increase understanding of minority groups and effective communication across racial lines.[119]
When the decision in Bakke came down, a majority of the Supreme Court justices upheld race-conscious admissions programs. The University of California had offered several theories justifying affirmative action, and the five justices finding affirmative action to be constitutional adopted two of these theories, although no one theory had a majority in the Court. Four of the five justices—Justices Brennan, White, Marshall, and Blackmun—focused on the theory that effective compensation for unequal opportunities caused by previous societal discrimination required that adjustments be made through race-conscious admissions programs. In an individual opinion, Justice Marshall, the first African American appointed to the Supreme Court, reviewed the history of statesponsored discrimination in this country in relation to the present condition of minorities and of African Americans in particular. Marshall noted that, compared to whites, black Americans suffered from twice the rate of infant mortality, lived five years less, faced more than twice the
Justice Powell—the other justice holding affirmative action constitutional—dismissed this theory, viewing "societal discrimination" as "an amorphous concept of injury that may be ageless in its reach into the past."[122] Powell stated that any finding of discrimination would have to be based on a specific injury and could not be drawn from a general history of discrimination. At one point, however, he suggested that the cultural bias in admissions criteria might constitute a specific injury sufficient to justify making adjustments based on race. In a footnote, he observed,
Racial classifications in admissions conceivably could serve [another] purpose, one which petitioner does not articulate: fair appraisal of each individual's aca demic promise in the light of some cultural bias in grading or testing procedures. To the extent that race and ethnic background were considered only to the extent of curing established inaccuracies in predicting academic performance, it might be argued that there is no "preference" at all. Nothing in this record, however, suggests either that any of the quantitative factors considered by the [University of California] were culturally biased or that petitioner's special admissions program was formulated to correct for any such biases.[123]
Minority students had implored the University of California to detail the racial bias of traditional admissions criteria, namely, grades and stan dardized test scores, but the university refrained from raising bias as an issue or introducing any evidence to that effect into the record,[124] despite detailed evidence of bias in a substantial body of research, part of which was supplied to the court by amici.[125] Not without reason, the university seemed to believe that building a record of culturally biased admissions criteria would invite litigation by minorities who were denied admission.[126] But in not raising racial discrimination embedded in traditional admissions criteria as a justification for its affirmative action program—as suggested by Justice Douglas in DeFunis and again by Justice Powell in Bakke—the university did a great disservice to minority students. In his critique of the university in its handling of the case, Derrick Bell, an African American professor at New York University Law School, wrote, "Given the choice of ac
The university explained in great detail the large gaps in grades and test scores between white and minority applicants, concluding that without a special program, most minorities could not compete successfully with white applicants. However, the university provided no reason for the gap, and Justice Powell, who might otherwise have cast the deciding vote to uphold affirmative action as a remedy for discrimination, was left to ascribe the gap to a vague injury caused by indeterminate societal discrimination rather than a specific injury caused by identifiable racial bias. Furthermore, the Court was left to accept without question the use of grades and test scores as a neutral and proper measure of qualification through which minorities were determined to be "less qualified" and in need of preference, and whites were determined to be "more qualified" and subject to reverse discrimination. As a consequence, criticized Bell, "In what was potentially the most important civil rights case since Brown
v. Board of Education, racial disadvantage, like a birth defect, was treated as an unfortunate accident of nature for which charity was appropriate, not as a massive, historic, and intentional racial crime for which virtually all institutions are responsible and for which a compensatory remedy is essential."[128]
Feeling that minority students had been forsaken by the university in its defense of affirmative action, the Black Law Students Association (BLSA) at Boalt filed an amicus brief challenging the assumption that standardized tests were objective measures of merit and that minorities were "less qualified" to attend medical and professional schools.[129] In its brief, BLSA reviewed the published research indicating that in the instance of medical schools, the Medical College Admission Test (MCAT) was not a valid indicator of performance for a medical student, an intern or resident, or a practicing physician.[130] The research also showed that the test had a discriminatory impact on minorities, partly because it was normed on a virtually all-white test-taking population.[131] Consequently, the BLSA asserted, the MCAT was neither a proper nor a neutral measure of "qualification." Under an earlier Supreme Court case, Griggs v. Duke Power Co., a test with racially disparate results had to "bear a demonstrable relationship to successful
When factors other than MCAT scores were considered, the BLSA argued, minority students were just as "qualified" to attend medical school as white students.[134] This was borne out by the successful completion of medical school by minority students, but it was also evident in the comparable undergraduate grades and personal qualities elicited in medical school interviews. Therefore, the BLSA concluded, the continued reliance on the MCAT as the primary screening device for medical school was a form of racial discrimination that warranted remedial action in the form of affirmative action.[135] The BLSA noted that under Sweatt v. Painter, the Court had required that racial minorities be admitted to professional schools without prejudice to their race, and under Brown v. Board of Education, it had guaranteed racial groups the opportunity to learn and compete in integrated schools.[136] However, the use of standardized tests thwarted the goal of integration in higher education, and the full realization of that goal still required that a "race-neutral" admissions process be race-conscious. The BLSA asserted that, given the bias found in the MCAT and other standardized tests such as the LSAT, race consciousness did not constitute a preference for racial groups but a means of avoiding racial discrimination which would otherwise occur.[137]
Though the BLSA and other amici raised the issue of ongoing racial discrimination, this was not enough for the Court to consider it in this case.[138] The university had not placed any evidence of test bias or other forms of discrimination into the record at the trial level, nor had it raised discrimination as an issue. Justice Powell did not further discuss the issue, embracing instead the theory offered by the university in its defense of affirmative action, that the educational interest in diversity was sufficient to justify race-conscious admissions. Using this theory of diversity, Justice Powell issued an individual opinion, which became the accepted opinion in the case.
Powell stated that a diverse student body was crucial to a university education because it produced an "atmosphere of speculation, experiment, and creation—so essential to the quality of higher education."[139] Citing legal education as an example of the type of program that would benefit from a diverse student body, Powell quoted the 1950 case of Sweatt
v. Painter, which had invalidated a Texas statute excluding African American students from the University of Texas Law School: "The law school,
In affirming race-conscious admissions programs, however, Powell imposed some limitations. He held that an affirmative action program was constitutionally permissible if it considered the race of an applicant as only one among many factors and did not employ strict quotas. In addition, Powell held that in the admissions process, minority and nonminority applicants could not be separated into different pools. Though race could be taken into account in evaluating what each applicant brought to the law school, all applicants—minority and nonminority—had to be compared against one another in a single applicant pool.
The diversity rationale of Bakke allowed highly competitive law schools such as Boalt to admit minority students by considering race as a "plus" factor in their files. However, the sizable difference in the PGAs of minority and nonminority applicants remained unaddressed. A growing body of evidence suggested that the use of the LSAT in admissions decisions had a disparate impact on minority applicants. David White, who had been working at Boalt during the Bakke case, conducting research on credentialism, was well versed on this evidence and the politics surrounding it. He had offered his assistance on the testing issue to the law professors preparing the UC defense but had been repeatedly re-buffed.[141] He had helped the BLSA at Boalt prepare its brief and had submitted it to the Supreme Court on behalf of the students, hoping to bring attention to the issue of test bias. But for the most part—with the exception of Powell's acknowledgment that test bias might justify a race-conscious remedy—this effort had been unsuccessful. Following Bakke, in an attempt to bring public awareness to the issue, White wrote a law journal article in which he used national data submitted to the Supreme Court in the Bakke case to demonstrate the disparate impact of the LSAT on the admissions opportunities of minority students (see table 2).[142]
The data showed that getting high grades or high test scores was a comparable feat for whites. For example, 40 percent of white applicants had college grades of 3.25 or higher, and 37 percent had LSAT scores above 600. In contrast, high test scores were much rarer for top black college students. While 13 percent had 3.25 or better grade averages, only 3 percent scored above 600 on the LSAT. When high test scores were considered in conjunction with high grades—as done in determining the
| LSAT at or above 600 | UGPA at or above 3.25 | Combined LSAT and UGPA | |
| SOURCE: David M. White, "Culturally Biased Testing and Predictive Invalidity: Putting Them on the Record," 14 Harvard Civil Rights-Civil Liberties Law Review 89–132, 119 (1979). | |||
| Black | 3% | 13% | 1% |
| White | 37% | 40% | 20% |
| LSAT at or above 500 | UGPA at or above 2.75 | Combined LSAT and UGPA | |
| Black | 19% | 45% | 11% |
| White | 77% | 75% | 61% |
Given the consistently large gap in test scores between minority and nonminority students, David White suggested that the LSAT might be culturally biased. He identified several sources of possible bias, which varied "from the intentional to the indiscernibly subtle and accidental."[145] Intentional discrimination was the first source of bias. Given the racist origins of aptitude testing, it may not have been mere coincidence that the LSAT acted to disproportionately exclude minority students. White suggested that a second source of bias might be found in test questions that required knowledge of information more familiar to one cultural group than to another, such as questions pertaining to polo matches or regattas. The speed with which tests had to be completed constituted a third possible source of bias. The time requirement, White explained, might adversely affect certain groups whose apprehensions prompted them to be meticulous in taking the test. A fourth source of bias might arise from unfamiliarity with standardized tests themselves. Minority students were less likely to have the resources or the opportunity to familiarize themselves with the test by taking a test preparation course or sitting for the LSAT multiple times.
A fifth source of possible bias lay in unrecognized assumptions implied in test questions—where one cultural group might make the necessary
Finally, White contended that cultural bias could be expected as a result of the process by which tests were developed. Potentially discriminatory questions were withdrawn only when they yielded inconsistent results from a majority of students. Because the test-taking population remained majority white, the LSAT disadvantaged minority students who regularly answered a particular question differently. Because minority students did not make up a majority of test takers, the test continued to be norm-referenced to a white population.
In the aftermath of Bakke, at least some of the faculty at Boalt acknowledged the limitations of performance indicators, of which the LSAT was one. In a report assessing the admissions program at Boalt in light of Bakke, a faculty committee stated, "Predictions of probable performance are only predictions in gross and are subject to a wide margin of error in individual cases."[147] But in recognizing this, the committee did not question the continued use of the LSAT, partly because few other predictors were available to enable the law school to differentiate between talented students. This was also due to Boalt's increased reputation as the premier public law school in the country. Its competitive standing rested in part on the high ranking of its student body under the very performance indicators—namely the LSAT—that were detrimental to minority students.
In 1978, the average UGPA of students admitted to Boalt was 3.69, and the average LSAT was 728. However, the differences between minority and nonminority students remained substantial, particularly with respect to LSAT scores. Relative to admitted white students, who in 1978 had an average UGPA of 3.72 and LSAT score of 734, admitted African American students had an average UGPA of 3.23 and LSAT score of 616.
Due to heightened competitiveness, the lower undergraduate grade averages and test scores of minority students, though exceeding the average grades and test scores of white students a decade earlier, required "special" consideration if these students were to be represented in the student body.[149] To this end, in 1978 the Boalt faculty adopted a new admissions policy providing for the continued special consideration of applicants from "those racial and cultural minority groups which [have] not had a fair opportunity to develop their potential for academic achievement and which lack adequate representation within the legal profession."[150] However, pursuant to Bakke, the regular and special admissions programs were combined so that all applicants would be compared against one another. In addition, the maximum 25 percent limit on students admitted through special consideration—which resembled a quota—was replaced with a target range of 23–27 percent. Subtargets that approximated percentages in the national population were set at 8–10 percent African American, 8–10 percent Latino, 5–7 percent Asian American, and roughly 1 percent Native American.
The faculty otherwise affirmed its 1973 admissions policy. The committee appointed to assess the former admissions program stated in its report that the 1973 criteria "were and remain valid."[151] The admissions policy adopted in 1978 would remain the policy at Boalt until the 1990s. At that time, opponents of affirmative action would turn their attention toward Boalt and charge in a more sophisticated argument that affirmative action policies discriminated not only against whites, but also against Asians. Moreover, they would argue, affirmative action compromised "academic excellence."