Affirmative Inaction: A Quantitative Analysis of Progress Toward "Critical Mass" in U.S. Legal Education.

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Author: Loren M. Lee
Date: Mar. 2021
From: Michigan Law Review(Vol. 119, Issue 5)
Publisher: Michigan Law Review Association
Document Type: Article
Length: 12,746 words
Lexile Measure: 1710L

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Since 1978, the Supreme Court has recognized diversity as a compelling government interest to uphold the use of affirmative action in higher education. Yet the constitutionality of the practice has been challenged many times. In Grutter v. Bollinger, for example, the Court denied its use in perpetuity and suggested a twenty-five-year time limit for its application in law school admissions. Almost two decades have passed, so where do we stand? This Note's quantitative analysis of the matriculation of and degrees awarded to Black and Latinx students at twenty-nine accredited law schools across the United States illuminates a stark lack of progress toward critical mass since Grutter and reveals the continued need for affirmative action in law school admissions.

Table of Contents Introduction I. Historical Background of Affirmative Action II. Grutter: Eighteen Years Later III. Presentation of the Data: Has Representation Improved? A. Methodology B. National Trends C. Regional Trends 1. The West Region a. A Case Study: University of California, Berkeley 2. The Midwest Region a. A Case Study: University of Michigan 3. The Northeast Region 4. The Southwest Region 5. The Southeast Region D. Trends by Ranking IV. Reasonable Alternatives? Conclusion

Introduction

[D]uring most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.

--Justice Thurgood Marshall (1)

Affirmative action has been a central issue in American jurisprudence for decades (2) and remains at the forefront of many legal and political conversations today. (3) The policy is designed to account for structural inequality that leads to fewer opportunities for groups that are marginalized on account of their race, color, religion, sex, or national origin. (4) "The purpose of affirmative action," as the Supreme Court has explained, "is not to make identified victims whole, but rather to dismantle prior patterns of ... discrimination and to prevent discrimination in the future." (5) Advocates of affirmative action argue that it is necessary to ensure racial and gender diversity in education, (6) while critics contend that it is unfair and perpetuates reverse discrimination, where more qualified candidates are passed over for diverse ones. (7)

The year 2021 marks eighteen years since the Court's decision in Grutter v. Bollinger, which upheld the use of affirmative action in higher education. (8) Writing for the majority, Justice Sandra Day O'Connor expected the policy to be unnecessary by 2028, twenty-five years later. (9) To justify her prediction, she cited the increasing "number of minority applicants with high grades and test scores" in the twenty-five years since Regents of the University of California v. Bakke, the Court's first foray into affirmative action. (10) But are law schools on track to fulfill her prophecy?

This Note analyzes the matriculation of and degrees awarded to Black (11) and Latinx (12) law students nationally, which calls into question the progress...

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Gale Document Number: GALE|A658474113