[Congressional Record Volume 149, Number 58 (Thursday, April 10, 2003)]
[Extensions of Remarks]
[Pages E718-E722]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      SUPPORTING RACIAL DIVERSITY

                                 ______
                                 

                       HON. WILLIAM J. JEFFERSON

                              of louisiana

                    in the house of representatives

                        Wednesday, April 9, 2003

  Mr. JEFFERSON. Mr. Speaker, I submit the following Brief for the 
Record.

                              [No. 02-241]

                          In the Supreme Court

                          of the United States

                               __________
                               

                            BARBARA GRUTTER,

                                                       Petitioner,

                         LEE BOLLINGER, et al.,

                                                      Respondents.
                               __________
                               

                      On Writ Of Certiorari To The

                     United States Court of Appeals

                         For the Sixth Circuit

                               __________
                               
     BRIEF OF THE HARVARD BLACK LAW STUDENTS ASSOCIATION, STANFORD 
     BLACK LAW STUDENTS ASSOCIATION AND YALE BLACK LAW STUDENTS 
     ASSOCIATION AS AMICI CURIAE SUPPORTING RESPONDENTS
                               __________
                               

                        INTEREST OF AMICI CURIAE

       The Black Law Students Associations of Harvard Law School 
     (``Harvard''), Stanford Law School (``Stanford'') and Yale 
     Law School (``Yale'') (collectively, ``the BLSAs'') submit 
     this brief as amici curiae in support of Respondents, urging 
     this Court to affirm the Sixth Circuit's ruling that the 
     University of Michigan Law School (``Michigan'') has a 
     compelling interest in promoting racial diversity in its 
     student body, and that Michigan's admissions policy is 
     narrowly tailored to serve that interest. The BLSAs are 
     chapters of the National Black Law Students Association, a 
     nonprofit student organization with over 200 chapters and 
     6,000 members that is dedicated to promoting the academic and 
     professional goals of black law students. The BLSAs' members 
     hail from many different ideological, political, religious, 
     national, ethnic and socio-economic backgrounds. Major 
     activities of the BLSAs include projects relating to law 
     school admissions, alumni affairs, professional recruitment, 
     community service and academic support, often in partnership 
     with other student organizations and their respective law 
     school administrations. The alumni of the BLSAs rank among 
     the most distinguished graduates of their institutions, and 
     are currently serving as respected litigators, judges, law 
     professors, legislative officials and principals of major 
     corporations and non-profit organizations. These graduates 
     have been pioneers in integrating the legal profession, and 
     have helped the bar and the bench become more responsive to 
     the needs of a society that is rapidly growing more diverse.
       The current membership of the BLSAs includes students who 
     are beneficiaries of law school policies that take race into 
     account as one factor among many in admissions decisions. 
     Like all of their classmates, the students who make up the 
     BLSAs have received a broader, more intellectually 
     stimulating education because they have had the opportunity 
     to study and socialize in academic environments that are 
     enriched by racial diversity. The BLSAs have an interest in 
     this case because they are committed to maintaining racial 
     diversity in legal education and in the legal profession.
                                 ______
                                 

                          SUMMARY OF ARGUMENT

       Racial diversity in a student body improves the quality of 
     legal education. Such diversity is especially critical for 
     ``elite'' law schools, such as Harvard, Michigan, Stanford 
     and Yale. These law schools share a broadly defined public 
     mission to train graduates for leadership and service, and 
     to instill within them zeal to confront enduring dilemmas 
     in American law and society. Recent social science studies 
     have documented in detail how diversity broadens the scope 
     of campus discourse and teaches lessons in tolerance and 
     cooperation. Diversity also helps shatter lingering 
     stereotypes regarding supposed ideological uniformity 
     within racial groups. As current students at elite law 
     schools, the BLSAs' members are uniquely positioned to 
     explain some of the significant educational advantages 
     attributable to the racially inclusive environments found 
     at their institutions. These students have participated in 
     and learned from campus discourse and debates that are not 
     likely to occur in racially homogenous academic settings.
       Racial diversity is similarly vital to the credibility and 
     legitimacy of the legal profession. Although full integration 
     of the profession remains a distant goal, elite law schools 
     have been uniquely instrumental in preparing minority 
     students--and especially black students--for leadership 
     positions in the bar and on the bench. Without the ability to 
     consider race in admissions decisions, these schools will 
     fall short of fulfilling their unique public missions.
       Race-neutral alternatives are not effective substitutes for 
     race-conscious admissions policies. If elite law schools are 
     not allowed to consider race as one factor in admissions, the 
     representation of black students at elite law schools will 
     drastically diminish. Moreover, as demonstrated in California 
     and Texas, and as shown in empirical studies, the alternative 
     programs that have been touted as promising replacements for 
     race-conscious admissions policies do not produce the racial 
     diversity that is necessary for elite law schools to train 
     future American leaders.
                                 ______
                                 

                                ARGUMENT

I. RACIAL DIVERSITY IS NECESSARY FOR ELITE LAW SCHOOLS TO FULFILL THEIR 
   PUBLIC MISSION OF TRAINING STUDENTS FOR LEADERSHIP POSITIONS AND 
                    INTEGRATING THE LEGAL PROFESSION

       This Court's equal protection jurisprudence, from Regents 
     of University of California v. Bakke, 438 U.S. 265 (1978), 
     through Adarand Constructors, Inc. v. Pena, 515 U.S. 200 
     (1995), makes clear that the use of racial classifications 
     must serve a ``compelling governmental interest,'' and that 
     race-conscious policies used to achieve this end will pass 
     muster under the strict scrutiny standard only if they are 
     ``narrowly tailored.'' Adarand, 515 U.S. at 202. The BLSAs 
     emphasize the compelling interest of Michigan (and the 
     nation) in the educational benefits of law school admissions 
     policies that take race into account. As law students at 
     Harvard, Stanford and Yale, the current members of the BLSAs 
     have a unique perspective on these benefits, for they have 
     witnessed first-hand the positive effects of a racially 
     diverse student body.
       Since the late 1960s and early 1970s, most elite law 
     schools--Harvard, Stanford and Yale in particular--have 
     demonstrated a robust commitment to ensuring that their 
     student bodies are racially diverse. The mission of these 
     elite law schools is to train students not simply to become 
     practicing attorneys, but more broadly to tackle persistent 
     social problems, to advocate reform of the justice systems in 
     the United States and abroad, to expand the intellectual 
     frontiers of legal scholarship and to protect the rights and 
     liberties of the nation's most defenseless individuals. In 
     other words, these institutions have staked out a bold public 
     mission, and have defined one of their goals as providing 
     visionary leadership for the legal profession and the nation. 
     Moreover, these law schools have been remarkably successful 
     in catapulting their graduates into prominent positions in 
     private practice, public service, business and academia. As 
     the nation becomes increasingly diverse, these schools will 
     be unable to realize their public missions without a student 
     body that resembles the larger multiracial society they seek 
     to serve.

 A. Racial Diversity in Legal Education Prepares Students at Elite Law 
      Schools To Meet the Challenges of Our Multiracial Democracy

    1. Racial Diversity Enhances the Quality of Legal Education by 
                    Improving Academic Interactions

       Over half a century ago, in a decision that struck down 
     racial exclusion in admissions policies at the University of 
     Texas Law School (``Texas''), this Court recognized that 
     ``although the law is a highly learned profession, * * * it 
     is an intensely practical one. The law school, the proving 
     ground for legal learning and practice, cannot be effective 
     in isolation from the individuals and institutions with 
     which the law interacts. Few students and no one who has 
     practiced law would choose to study in an academic vacuum, 
     removed from the interplay of ideas and the exchange of 
     views with which the law is concerned.'' Sweatt v. 
     Painter, 339 U.S. 629, 634 (1950). The differences between 
     the Texas admissions policy in 1950, which this Court 
     considered in Sweatt, and the admissions policies at 
     Michigan before the Court today are fundamental and 
     dispositive. Texas sought to

[[Page E719]]

     deny the petitioner in Sweatt, as well as each of the 
     white law students it admitted, any opportunity to study 
     law in an environment that promoted mutual respect and 
     learning across racial lines. In contrast, the purpose of 
     Michigan's admissions policies (and the similar policies 
     at many other elite law schools) is to enhance the 
     educational experience of all students by enrolling 
     sufficient numbers of minority students to facilitate the 
     sorts of interracial interactions that help produce 
     lawyers capable of leadership in a multiracial society. 
     Before the 1950s, this Court and our profession played a 
     shameful role in maintaining a segregated America. Nothing 
     in the Constitution requires a return to that era, and 
     nothing in the Constitution prohibits Michigan's effort to 
     fulfill its public mission by training lawyers in a 
     racially diverse academic environment.
       Today, virtually all law schools have recognized that 
     enrolling significant numbers of minority students improves 
     the quality of legal education. Although the advantages of 
     racially integrated academic settings have often been praised 
     in qualitative, abstract terms, recent social science studies 
     have provided empirical confirmation that racial diversity on 
     campus does in fact produce tangible educational benefits. 
     Racial diversity fosters an intellectually challenging 
     environment and encourages discussions that are attuned to 
     contemporary legal, social and political issues. Such 
     diversity also instills in students core democratic values 
     such as cooperation, tolerance and affinity for reasoned 
     deliberation.
       For example, a recent survey of law students at Harvard and 
     Michigan documented how racial diversity enhances the 
     intellectual and educational experiences of students. See 
     Gary Orfield & Dean Whitla, Diversity Challenged: Evidence on 
     the Impact of Affirmative Action 143-74 (2001). In the 
     Orfield and Whitla study, 68 percent of Harvard students and 
     73 percent of Michigan students responded that racial 
     diversity in the classroom enhanced their ``think[ing] about 
     problems and solutions in class.'' Id. at 156. Further, 
     nearly two-thirds of all respondents to the Orfield and 
     Whitla survey reported that diversity enhanced the quality of 
     most of their law school classes. See id. at 160. Over half 
     of the students surveyed at both schools responded that even 
     racial controversies on campus yielded positive educational 
     outcomes, because such events encouraged them to rethink 
     their values. See id. at 162-63. Overall, 89 percent of 
     Harvard students and 91 percent of Michigan students surveyed 
     indicated that racial diversity in their student body 
     represented a positive aspect of their educational 
     experiences. See id. at 160. In sum, this study demonstrates 
     empirically that a racially diverse student body enhances the 
     training of future leaders of a multiracial society by 
     preparing them to work together, to debate one another and 
     even to disagree with each other respectfully.
       Additional social science studies overwhelmingly support 
     the conclusions reached in the Orfield and Whitla study and 
     further establish that racial diversity in higher education 
     provides distinct and measurable benefits to students. For 
     example, William G. Bowen and Derek Bok, former presidents of 
     Princeton University and Harvard University, respectively, 
     have produced an exhaustive study of more than 45,000 
     students of all races who entered academically selective 
     universities from 1976 to 1989. That study demonstrates, 
     through a wealth of empirical evidence, that diversity in the 
     classroom improves the quality of learning for all students. 
     See Bowen & Bok, supra; see also David L. Chambers et al., 
     Michigan's Minority Graduates in Practice: The River Runs 
     Through Law School, 25 Law & Soc. Inquiry 395 (2000).
       The integration of law school classrooms is especially 
     critical because issues of race continue to be inextricably 
     linked to so many aspects of the legal system and civil 
     society. See generally Elizabeth A. Anderson, Integration, 
     Affirmative Action, and Strict Scrutiny, 77 N.Y U. L. Rev. 
     1195 (2002). Law school students and graduates are called 
     upon to address enduring American dilemmas such as disparate 
     administration of criminal justice, unequal access to health 
     care and educational resources, and discrimination in 
     employment. There can be no understanding of such issues 
     without a nuanced appreciation of the persistent, though 
     sometimes subtle, influence of race in American life.

   2. Racial Diversity in Legal Education Helps to Dispel Pernicious 
                              Stereotyping

       As Justice O'Connor has explained in the similar context of 
     the influence of gender: ``[I]n certain cases a person's 
     gender and resulting life experience will be relevant to his 
     or her view[s]'' because ``like race, gender matters.'' JEB 
     v. Alabama ex. rel. TB, 511 U.S. 127,148-49 (1994) (O'Connor, 
     J., concurring). Although life experiences shaped by race 
     affect the views and outlooks of minorities, the common 
     influence of race has never produced a single, monolithic 
     mindset within racial groups because individuals respond to 
     life experiences in varying ways.
       Race-conscious admissions policies further the broad, 
     public mission of elite law schools by creating academic 
     environments in which it is patently apparent that racial 
     minorities possess a multitude of differing views, beliefs 
     and experiences. Law schools that admit a racially diverse 
     mix of students encourage, at least implicitly, academic and 
     social interactions that expose the fallacy of racial 
     stereotyping, forcing students to examine subconscious 
     prejudices and to shed narrow-minded preconceptions. 
     Detractors of race-conscious admissions policies often 
     insinuate that such policies wrongly use race as a proxy for 
     a particular viewpoint. See, e.g., Brief for United States as 
     Amicus Curiae at 20. To the contrary, such policies actually 
     help to destroy the myth that individuals should be presumed 
     to share common perspectives on any given subject simply 
     because they belong to a certain racial group. The staggering 
     intellectual diversity that exists within minority groups is 
     in fact highlighted in racially diverse academic settings. 
     See Harry T Edwards, Race and the Judiciary, 20 Yale L. & 
     Pol'y Rev. 325, 329 (2002) (rejecting the suggestion that 
     race can be viewed as a proxy for ideology and noting the 
     broad range of ideological perspectives held by black 
     legal scholars).
       Properly understood, then, racial diversity in law school 
     admissions is premised on an understanding made explicit by 
     this Court: ``If our society is to continue to progress as a 
     multiracial democracy, it must recognize that the automatic 
     invocation of race stereotypes retards that progress and 
     causes continued hurt and injury.'' Edmonsville v. Leesville 
     Concrete Co., 500 U.S. 614, 630-31 (1991). Racially mixed 
     academic settings help to dispel the misconception that 
     racial identity necessarily implies a uniform set of 
     thoughts, attitudes and beliefs.

 3. The Benefits of Racial Diversity Have Been Witnessed First-Hand by 
                  the Current Membership of the BLSAs

       The current membership of the BLSAs has directly witnessed 
     the ways in which a diverse academic environment creates a 
     broader and richer understanding of the law, and can speak 
     with conviction born from experience concerning the concrete 
     advantages of racial diversity at their respective law 
     schools. Race is relevant to at least three categories of 
     legal questions. First, race is at the heart of many of this 
     Court's most significant decisions, from Dred Scott v. 
     Sandford, 60 U.S. 393 (1856), to Brown v. Board of Education, 
     347 U.S. 483 (1954). Second, race often lurks prominently in 
     the subtext of a legal question even when it is not directly 
     implicated in the dispositive issues. Analysis of capital 
     punishment, for example, often proceeds in light of racial 
     disparities in sentencing. Third, the issue of race often 
     emerges unexpectedly, coloring consideration of legal issues 
     that would appear on first glance to be wholly self-
     contained. This Court's recent review of the 
     constitutionality of school vouchers, for example, may have 
     centered on First Amendment Establishment Clause concerns, 
     but necessarily required a recognition of how racial 
     minorities who reside in inner cities are affected by such 
     programs. See Zelman v. Simmons-Harris, 122 S. Ct. 2460, 2480 
     (2002) (Thomas, J., concurring) (noting decision's impact on 
     educational opportunities for underprivileged minority 
     children).
       Often, the BLSAs' members provide unique perspectives that 
     dramatically transform the tenor of classroom discussions. 
     Notably, Professors Orfield and Whitla found that law schools 
     introduce many students to significant interracial contact 
     for the first time. See Orfield & Whitla, supra, at 156 
     (noting that 50 percent of white Harvard and Michigan 
     students surveyed reported ``very little'' to ``no'' 
     interracial contact prior to attending law school; only six 
     percent of black and two percent of Latino students had 
     similar responses). However, black law students are not 
     admitted to elite law schools simply to enhance the education 
     of white law students by reminding them of the continuing 
     effect of race on the lives of black Americans. Black law 
     students themselves receive a better legal education when 
     they are immersed in a diverse student body. That was the 
     premise of this Court's holding in Sweatt v. Painter. Black 
     students also benefit from the wide range of views held by 
     students of all races and are prompted to reexamine their own 
     preconceived notions. Further, learning in a racially mixed 
     setting prepares the BLSAs' current members to enter the 
     legal profession, where 50 years after Sweatt it continues to 
     be true that ``most of the lawyers, witnesses, jurors, judges 
     and other officials with whom [they] will inevitably be 
     dealing'' are likely to be white. Sweatt, 339 U.S. at 634.

   B. Black Graduates Are Fulfilling the Public Mission of Elite Law 
                                Schools

       It is axiomatic that racial diversity in legal education 
     furthers the integration of the legal profession. Just as 
     diversity in law school student bodies undoubtedly improves 
     the nature and quality of learning, greater racial 
     inclusiveness in the bar and on the bench provides dramatic 
     benefits. Considered individually or together, these 
     beneficial effects amount to a compelling governmental 
     interest justifying race-conscious law school admissions 
     policies. The advantages of greater diversity in the legal 
     profession are considered here with an eye toward black 
     graduates of elite law schools, and with respect to three 
     particular areas of the profession: the judiciary, corporate 
     law firms and public interest work.
       As discussed above, elite law schools such as Harvard, 
     Michigan, Stanford and Yale have identified the preparation 
     of students to assume leadership positions in America and to 
     solve enduring social problems as core components of their 
     missions. Because these schools provide exceptional legal 
     training and other critical resources such as access to 
     prestigious alumni, they have functioned--and will continue 
     to function--as gateways to prominent positions within the 
     legal profession. See Samuel Issacharoff, Can Affirmative 
     Action Be Defended?, 59 Ohio St. L.J. 669,

[[Page E720]]

     684 (1998) (noting that elite public and private law schools 
     ``train a disproportionate share of the future political 
     leadership of the state and nation''). Consider, for example, 
     that each member of this Court holds a law degree from an 
     elite law school: Harvard (4), Stanford (2), Columbia, 
     Northwestern and Yale. The black graduates of elite law 
     schools have leveraged the intellectual training and academic 
     credentials they have received, along with relationships 
     built with professors and alumni, to achieve remarkable 
     success in the law, electoral politics and other venues that 
     were until recently virtually closed to racial minorities in 
     America. Moreover, these graduates have demonstrated a 
     remarkable dedication to serving the public interest.
       It is manifest, however, that the legal profession remains 
     far from integrated. See Elizabeth Chambliss, Miles to Go 
     2000: Progress of Minorities in the Legal Profession vi 
     (2002) (``Minorities in general continue to face significant 
     obstacles to `full and equal' participation in the profession 
     * * *.'') Further progress toward racial inclusiveness is 
     threatened if the elite law schools do not continue to train 
     significant numbers of racial minorities. If the legal 
     profession regresses toward racial homogeneity, public 
     confidence in the justice system will suffer. See Mark 
     Hansen, And Still Miles to Go, 85 A.B.A. J. 68, 68 (1999) 
     (``The makeup of the legal profession is one of the factors 
     people look to in forming their perceptions of whether the 
     justice system will treat them fairly * * *.'').

                            1. The Judiciary

       Although the bench is far from fully integrated, even the 
     limited strides toward inclusiveness to date have improved 
     the judiciary's ability to grapple with difficult legal 
     questions. See Edwards, supra, at 329 (``[R]acial diversity 
     on the bench can enhance judicial decision making by 
     broadening the variety of voices and perspectives in the 
     deliberative process.''); see also Sandra Day O'Connor, 
     Thurgood Marshall: The Influence of a Raconteur, 44 Stan. L. 
     Rev. 1217, 1217 (1992) (``Justice Marshall imparted not only 
     his legal acumen but also his life experiences, constantly 
     pushing and prodding [his colleagues] to respond not only to 
     the persuasiveness of legal argument but also to the power of 
     moral truth.''). Recognizing that racial diversity on the 
     bench improves the quality of judging does not require the 
     acceptance of ``some mythical black perspective,'' but rather 
     the plain understanding that ``life experiences have some 
     bearing on how [judges] confront various problems.'' Edwards, 
     supra, at 329.
       Significantly, black graduates from elite law schools have 
     helped to integrate the judiciary, including the Supreme 
     Court. For example, eight out of the 17 black judges 
     currently sitting on the federal circuit courts graduated 
     from an elite law school. See Federal Judges Biographical 
     Database, at http://air.fjc.gov/newweb/jnetweb.nsf/fjc_bio. 
     Of the 80 black federal district court judges currently 
     sitting, over one-third attended an elite law school. See id. 
     At least 30 black judges have graduated from Harvard alone. 
     See Bowen & Bok, supra, at 284.
       The presence of black judges on the bench promotes public 
     confidence in the judicial system. Trust in that system's 
     fairness is integral to the public's willingness to rely on 
     the courts for resolution of civil disputes and oversight of 
     criminal proceedings. Cf. Sandra Day O'Connor, The Effects of 
     Gender in the Federal Courts: The Final Report of the Ninth 
     Circuit Gender Bias Task Force, 67 S. Cal. L. Rev. 745, 760 
     (1994) (``When people perceive bias in a legal system, 
     whether they suffer from it or not, they lose respect for 
     that system, as well as for the law.'').
       The racial composition of the judiciary represents a 
     significant factor in the public's estimation of whether 
     judges will dispense justice fairly. See Sherrilyn A. Ifill, 
     Racial Diversity on The Bench: Beyond Role Models and Public 
     Confidence, 57 Wash. & Lee L. Rev. 405, 408-09 (2000) 
     (explaining that a diverse bench promotes fairness in the 
     judicial system). Further, numerous studies have demonstrated 
     that a dearth of minority judges on the bench encourages the 
     view that the judiciary is systemically biased against 
     minority litigants and defendants. For instance, a 1999 study 
     revealed a perception among many citizens, including 68 
     percent of blacks, that the judicial system treats blacks 
     unfavorably as compared to whites. See David B. Rattman & 
     Alan J. Tomkins, Public Trust and Confidence in the Courts: 
     What Public Opinion Surveys Mean to Judges, Ct. Rev., 4 
     (1999). Notably, 43 percent of whites and 42 percent of 
     Hispanics surveyed agreed that blacks are treated less 
     favorably than whites in the courts. See id.

                         2. Corporate Law Firms

       Corporate law firms provide representation in court and 
     advice regarding business decisions for the world's largest 
     and most influential business entities. The racial 
     integration of corporate law firms helps demonstrate that 
     after centuries of racial discrimination in the workplace, 
     employment opportunities in the private sector are now being 
     made available to individuals of all races. Further, a 
     racially inclusive workforce is necessary for law firms and 
     the corporations they counsel to respond creatively to the 
     challenges of a multiracial society.
       Graduates of elite law schools disproportionately fill 
     positions in corporate law firms. Black lawyers who seek 
     employment at these firms often find that a degree from an 
     elite law school is a critical credential that is necessary 
     to ``counteract the lingering but nevertheless powerful 
     effects of the pervasive myth of black intellectual 
     inferiority.'' David B. Wilkins, Rollin' On the River: Race, 
     Elite Schools, and the Equality Paradox, 25 Law & Soc. 
     Inquiry 527, 533 (2000). A survey conducted by Professor 
     Wilkins in 1995 indicated that in New York City and 
     Washington, DC alone, ``more than 50% of all black associates 
     hired graduated from either Harvard or the top schools 
     [Columbia, NYU, or Georgetown] in the local market,'' 
     compared with a ``corresponding number for whites [of] 40.4% 
     in New York and 23.2% in Washington, DC'' Id. at 534. The 
     numbers are even more striking for black partners. In 1993, 
     77 percent of black partners were elite law school graduates, 
     and 47 percent were Harvard or Yale graduates. See id. at 
     534-35.

                           3. Public Service

       Graduating lawyers ``who will see the law as a call to 
     service'' is a fundamental component of the public missions 
     of elite law schools. Stanford Handbook, supra, at 1. Black 
     graduates and other minority alumni of these schools have 
     fulfilled this goal by serving in public interest and legal 
     services positions, committing significant resources to pro 
     bono work and representing underserved communities--all at 
     rates exceeding those of their white counterparts.
       Minority lawyers--black lawyers in particular--have 
     consistently been more likely than white lawyers to take jobs 
     with public interest and governmental organizations, and to 
     surpass their white colleagues in pro bono hours worked 
     yearly. A recent study of black Harvard graduates found that 
     nine percent of them took jobs with public interest or legal 
     services organizations upon graduation. See Harvard Black 
     Alumni Report, supra, at 34-35. This rate well exceeded the 
     national average and was three times greater than the average 
     for Harvard graduates generally. See id. A similar survey of 
     Michigan alumni found that the percentage of minority lawyers 
     employed in legal services or public interest jobs exceeded 
     the number of white graduates similarly employed in each of 
     the three decades covered in the survey. See Chambers, supra, 
     at 427. Black law school graduates are also more likely than 
     their non-black colleagues to assist traditionally 
     underserved communities; for example, the Michigan survey 
     found that black alumni were much more likely than white 
     alumni to serve low- and middle-income clients. See id. at 
     435; see also Elizabeth Chambliss, Organizational 
     Determinants of Law Firm Integration, 46 Am. U. L. Rev. 
     669, 731 (1997).
       Finally, minority graduates of elite law schools have 
     maintained a steadfast commitment to providing pro bono 
     services. Black Harvard graduates average 90 hours per year 
     of pro bono legal representation. See Harvard Black Alumni 
     Report, supra, at 47. Similarly, minority Michigan alumni in 
     private practice average 75 hours of pro bono representation, 
     compared to 51 hours for white Michigan alumni, see Chambers, 
     supra, at 456, and about 24 hours on average across the 
     country, see Deborah L. Rhode, The Constitution of Equal 
     Citizenship for a Good Society: Access to Justice, 69 Fordham 
     L. Rev. 1785, 1810 (2001).

   4. Progress Toward Full Integration of the Legal Profession Must 
                                Continue

       Despite the incipient racial progress in the legal 
     profession, the lack of true diversity remains appalling. For 
     example, although blacks and Latinos make up 25 percent of 
     the country, combined Black and Latino representation among 
     lawyers was only 7 percent in 1998. See Chambliss, Miles to 
     Go 2000, supra, at v. Further, minority representation is 
     particularly lacking in senior legal positions throughout the 
     profession. See id. at vi (concluding that ``[m]inority 
     representation in upper-level jobs remains miniscule, 
     especially in the for-profit sector.''). For example, 
     ``Minorities make up less than 3% of the partners in the 
     nation's 250 largest law firms.'' Wilkins, Rollin' On the 
     River, supra, at 539.
       It is imperative that elite law schools continue to train 
     and graduate significant numbers of minority attorneys. When 
     these graduates serve as judges, they signal to the public 
     that the justice system is unbiased and impartial, and that 
     the courts value racial inclusiveness. When these graduates 
     reach prominent positions in private practice or public 
     institutions, they demonstrate that persistent barriers to 
     equal opportunity are continuing to crumble. The legal 
     profession's tentative steps toward integration cannot grow 
     into significant strides if elite law schools no longer take 
     race into account in admissions decisions.

 II. ALTERNATIVE RACE-NEUTRAL ADMISSIONS POLICIES CRITICALLY DIMINISH 
THE NUMBER OF BLACK STUDENTS AT ELITE LAW SCHOOLS AND ARE NOT EFFECTIVE 
       SUBSTITUTES FOR CURRENT RACE-CONSCIOUS ADMISSIONS POLICIES

       As discussed above, elite law schools fulfill their public 
     missions by providing racially diverse academic environments 
     and training attorneys to improve the legal profession and 
     serve the public. These law schools cannot continue to 
     realize their missions if they are not able to consider race 
     as one factor in admissions decisions. The leading approaches 
     that have been touted as viable raceneutral alternatives 
     to current law school admissions policies that take race 
     into account are not in fact effective, workable or 
     desirable with respect to elite law schools. Abandoning 
     race-conscious admissions at elite law schools would lead 
     to a catastrophic reversal of the incremental

[[Page E721]]

     progress toward greater racial inclusiveness that these 
     schools have made. For black students, a shift to a color-
     blind or race-neutral admissions system would lead to 
     admissions results that are tantamount to ``the inexorable 
     zero.'' Cf. Johnson v. Transp. Agency, 480 U.S. 616, 656-
     57 (1987) (O'Connor, J., concurring) (quoting 
     International Bhd. of Teamsters v. United States, 431 U.S. 
     324, 342 n.23 (1977)) (discussing prima facie evidence of 
     discrimination under Title VII). The race-neutral 
     alternatives discussed below are demonstrably inferior to 
     race-conscious policies in achieving racial diversity 
     because they cannot ensure that black students will be 
     represented in meaningful numbers at most, if not all, of 
     the elite law schools. Consequently, such alternatives 
     would also exclude black students from access to gateways 
     to some of the most prestigious positions in the legal 
     profession. Accordingly, the benefits. gained from 
     employing race-conscious admissions policies are distinct 
     from, and greater than, those provided by race-neutral 
     alternatives.

 A. ``Percentage Plans'' Are Not Viable Alternatives to Race-Conscious 
                          Admissions Policies

       So-called ``percentage plans'' were created in the late 
     1990s for use in undergraduate admission programs at state 
     universities. See Catherine L. Horn & Stella M. Flores, 
     Percent Plans in College Admissions: A Comparative Analysis 
     of Three States' Experiences 19-23 (2003) (discussing race-
     neutral percentage admissions plans used in college 
     admissions in California, Texas and Florida). These plans 
     grant automatic admission to state universities to students 
     graduating within a certain top percentage of their public 
     high school classes. See id. Critics of race-conscious 
     admissions policies have touted these plans as effective 
     alternatives, even in the graduate admissions context. See, 
     e.g., Brief for United States as Amicus Curiae at 13-18; 
     Brief for the State of Florida as Amicus Curiae at 8-10. 
     However, at least two significant impediments prevent 
     percentage plans from assuring meaningful racial 
     inclusiveness in the student bodies of elite law schools. See 
     Horn & Flores, supra, at 41-51, 58-59 (relying on data from 
     state agencies, the federal National Center for Education 
     Statistics, the U.S. Census, institutional and state 
     documents, and interviews to conclude that the race-
     neutral percentage admissions plans used in California, 
     Texas and Florida are inadequate alternatives to race-
     conscious admissions plans).
       First, percentage plans were designed specifically for 
     college admissions. They are functionally incompatible with 
     graduate school admissions, which must necessarily take into 
     account demonstrated interest and experience in applicable 
     fields of study, not simply generalized academic achievement. 
     Second, even assuming arguendo that percentage plans could 
     somehow work in the graduate school context, such plans 
     certainly would not be effective with respect to admissions 
     to elite law schools. Percentage plans rely on admission of a 
     fixed portion of students at a limited number of pre-
     determined ``feeder'' schools. See, e.g., Danielle Holley & 
     Delia Spencer, The Texas Ten Percent Plan, 34 Harv. C.R.-C.L. 
     L. Rev. 245, 277 (2000) (considering the recruiting policies 
     of Texas state universities and noting the limited number of 
     schools from which the universities have admitted students 
     under the plan). In contrast, elite law schools recruit 
     applicants from hundreds of colleges over a large 
     geographical area, and the number of undergraduate applicants 
     vastly exceeds the number of students that are accepted by 
     these schools. See Jack Greenberg, Affirmative Action in 
     Higher Education: Confronting the Condition and Theory, 43 
     B.C. L. Rev. 521, 540 (2002) (explaining the practical 
     ineffectiveness of percentage plans).
       Even if elite law schools were able to overcome such 
     overwhelming implementation problems, it is unclear how 
     percentage plans would work to maintain current levels of 
     racial diversity at those schools for an additional reason. 
     Percentage plans' ability to bring meaningful numbers of 
     minority high school graduates to competitive universities 
     has, perversely, depended on the existence of segregated 
     secondary school systems. See Marta Tienda, College 
     Admissions Policies and the Education Pipeline: Implications 
     for Medical and Health Professions, in The Right Thing To Do, 
     the Smart Thing To Do: Enhancing Diversity in Health 
     Professions 117, 129 (Brian D. Smedley et al. eds., 2001). 
     Undergraduate institutions whose student bodies are composed 
     primarily of black. or minority students do not exist in 
     sufficient numbers to enable such a policy to maintain 
     current levels of minority representation at competitive law 
     schools.

B. Admissions Policies That Focus on SocioEconomic Disadvantage Are Not 
      Effective Alternatives to Race-Conscious Admissions Policies

       Other critics have suggested that consideration of socio-
     economic status should replace that of race in the admissions 
     calculus. See, e.g., Richard D. Kahlenberg, The Remedy: 
     Class, Race, and Affirmative Action (1996); William J. 
     Wilson, The Truly Disadvantaged (1987); Richard H. Fallon, 
     Jr., Affirmative Action Based on Economic Disadvantage, 43 
     U.C.L.A. L. Rev. 1913 (1996). An enhanced focus on socio-
     economic status, however, would not represent an effective 
     substitute for elite law schools' current race-conscious 
     admissions policies for at least two reasons. First, although 
     blacks are disproportionately poor, whites drastically 
     outnumber blacks at the lowest income levels, and are more 
     likely than blacks to possess the test scores that qualify 
     them for admission to academically selective institutions of 
     higher education. See Bowen & Bok, supra, at 51; Wightman, 
     supra, at 39-45; see also Jerome Karabel, No Alternative: The 
     Effects of Colorblind Admissions in California, in 
     Chilling Admissions: The Affirmative Action Crisis and the 
     Search for Alternatives 33, 37-38 (1998) (explaining that 
     consideration of applicants' socio-economic status would 
     produce minimal racial diversity).
       Second, admissions policies that look to socioeconomic 
     class place greater emphasis on income than wealth because 
     income is a more readily quantifiable metric. See Deborah C. 
     Malamud, Class-Based Affirmative Action: Lessons and Caveats, 
     74 Tex. L. Rev. 1847, 1850 (1996) (cautioning that the 
     economic status of traditionally disadvantaged groups, such 
     as blacks, is likely to be overstated under mainstream common 
     approaches to economic inequality). Notably, however, the 
     disparity in wealth between blacks and whites is even more 
     pronounced than the income gap. On average, although black 
     workers earn 60 percent of what their white counterparts 
     earn, black workers' net worth is just nine percent of white 
     workers' net worth. See Kelvin M. Pollard & William P O'Hare, 
     America's Racial and Ethnic Minorities, in Population 
     Bulletin, Sept. 1999, at tbl. 6, available at http://www.
prb.org/Content/NavigationMenu/PRB/AboutPRB/
Population_Bulletin2/Americas_Racial_and_Ethnic_Minorities. 
     htm (estimating that the median black family possesses a net 
     worth of $4,400 as compared with $45,700 for the median white 
     family); see also Bowen & Bok, supra, at 48. Accordingly, 
     because socio-economic status considerations are conducted in 
     a way that fails to focus on economic disparities that are 
     particular to blacks, such a race-neutral alternative does 
     not appear to rival the consideration of race. Although 
     socio-economic status may be a valid consideration in the law 
     school admissions context, concentrating on that factor 
     without taking into account race as well is unlikely to 
     produce a student body that is racially diverse. See, e.g., 
     Thomas J. Kane, Misconceptions in the Debate Over Affirmative 
     Action in College Admissions, in Chilling Admissions: The 
     Affirmative Action Crisis and the Search for Alternatives 24 
     (1998) (arguing that socio-economic status is a poor 
     substitute for race in selective admissions programs).

  C. Elite Law Schools That Have Abandoned Race-Conscious Admissions 
  Policies Have Not Been Able To Maintain Meaningful Racial Diversity

       The experience of law schools that have stopped relying on 
     race-conscious admissions policies strongly suggests that 
     meaningful levels of minority admissions or enrollment at 
     elite law schools cannot be maintained in the absence of such 
     policies. For example, in the wake of California's 
     Proposition 209, which in 1996 barred the consideration of 
     race in state university admissions decisions, the number of 
     black students admitted to University of California (``UC'') 
     law schools has significantly decreased. See United States 
     Commission on Civil Rights, Beyond Percentage Plans: The 
     Challenge of Equal Opportunity in Higher Education (2002), at 
     http://www.usccr.gov/pubs/percent2/ch2.htm (hereinafter 
     Challenge). In 1996-1997, the last admissions cycle before 
     Proposition 209 was implemented, 7.2 percent of admitted 
     students at all UC law schools were black. See id. In the 
     three subsequent years, blacks were admitted at an average 
     rate of less than 3 percent. See id. A similar decline in 
     black representation has occurred at the University of Texas 
     Law School in the wake of the Fifth Circuit's decision in 
     Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. 
     denied, 518 U.S. 1033 (1996), despite that law school's 
     consideration of socio-economic factors in the admissions 
     process. See Challenge, supra (noting that after 
     restrictions on race-conscious admissions decisions were 
     imposed pursuant to Hopwood in 1997-1998, black enrollment 
     fell from 6.4 percent to 4.7 percent, and that by 2000-
     2001, black enrollment had fallen to 2.3 percent of the 
     class).
       Finally, Petitioner, like many critics of race-conscious 
     law school admissions policies, envisions an admissions 
     program with an increased emphasis on GPAs and LSAT scores. 
     See Brief for Petitioner at 39-40. Whether these metrics 
     measure objective merit and whether they should constitute 
     the primary considerations for admissions officers is 
     certainly questionable. The BLSAs note that a trend towards 
     increased reliance on GPAs and LSAT scores for admissions 
     decisions would have a far greater impact on black 
     representation in legal education than a mere reallocation of 
     black students among law schools. That is, were law school 
     admissions to be based on GPAs and LSAT scores alone, 
     substantial numbers of black students would not have access 
     to a legal education, and only a handful would have access to 
     a legal education at the elite law schools.
       Professor Linda Wightman has analyzed how minority 
     admission rates would be affected if law schools relied 
     exclusively on GPAs and LSAT scores, or ``numbers-only'' 
     admission criteria. See Linda F. Wightman, The Consequences 
     of Race-Blindness: Revisiting Prediction Models With Current 
     Law School Data, forthcoming in 53 J. Legal Educ. (2003); 
     Wightman, The Threat to Diversity, supra at 22 tbl.5. Such an 
     admissions regime would greatly reduce the number of black 
     students admitted to any law school. In 2000-2001, 
     approximately 50 percent of black law school applicants were 
     admitted to at least one law

[[Page E722]]

     school. See Wightman, The Consequences of Race-Blindness, 
     supra, at 11. If an admissions process relying strictly on 
     GPAs and LSATs were instituted, this figure would not have 
     been higher than 43 percent and might have fallen as low as 
     31 percent. See id.
       The reduction in the number of black students admitted to 
     the most competitive law schools would be even more 
     devastating. Prof. Wightman's research reveals that at the 
     most selective schools, the percentage of black admitted 
     applicants would plunge from 6.7 percent to 1.2 percent of 
     admitted students. See id. at 18. Such a result would, in 
     effect, return racial diversity in legal education to a level 
     unseen since the era prior to the civil rights movement, when 
     ``barely 1 percent of all law students in America were black 
     * * * and virtually no black students were enrolled in [any] 
     * * * predominantly white law school.'' Bowen and Bok, supra, 
     at 5. Not only would such a trend toward racial homogeneity 
     prevent elite law schools from fulfilling their public 
     missions and deprive the legal profession of leadership that 
     is responsive to the needs of an increasingly multiracial 
     society, but the number of black law students at elite law 
     schools under the numbers-only admission model would 
     approach ``the inexorable zero.''
                                 ______
                                 

                               CONCLUSION

       The Sixth Circuit opinion upholding the use of race-
     conscious admissions policies at the University of Michigan 
     Law School should be affirmed.
           Respectfully submitted,
     Theodore V. Wells, Jr.,
       Counsel of Record.
     Tomiko Brown-Nagin,
     David W. Brown,
     Paul, Weiss, Rifkind,
       Wharton & Garrison LLP.
     George W. Jones, Jr.,
       Sidley Austin Brown & Wood LLP.
     Cheryl Mills.
     Hon. William J. Jefferson,
       U.S. House of Representatives.

     Dated: February 18, 2003.

                          ____________________