Schools Find Ways to Achieve Diversity Without Key Tool

Schools Find Ways to Achieve
Diversity Without Key Tool

State Affirmative-Action Bans Bring
Creative Solutions at UCLA, Elsewhere
By DANIEL GOLDEN
Staff Reporter of THE WALL STREET JOURNAL
June 20, 2003 10:09 a.m.

Erika Dowdell, a black Detroit native, didn't get into the University of Michigan Law School, which avowedly practices affirmative action.

Yet she was admitted to the University of California at Los Angeles, another top-notch law school, which has been banned from considering race since a 1996 voter initiative prohibiting affirmative action in the state.

One possible reason: Ms. Dowdell enjoyed an admissions preference at UCLA somewhat akin to affirmative action. On her application, she expressed interest in the law school's Critical Race Studies program, which examines the relationship between law and race. Applicants who plan to specialize in that field are held to a lower standard of grades and test scores.

The Critical Race Studies boost is available to white applicants, too. But the subject is particularly popular among minority students. Established two years ago, it has helped the law school increase its enrollment of black first-year students to 13 in 2002 from five in 2000 -- out of a class of 305 each year. Black enrollment is still less than in 1996, the last year affirmative action was allowed in California.

Next week, the U.S. Supreme Court is expected to decide on a challenge to minority preferences, made by white applicants rejected by Michigan's undergraduate and law-school programs. Should the court narrow or eliminate affirmative action, colleges and graduate schools nationwide would face the same predicament UCLA Law did: how to maintain some semblance of racial diversity despite the continuing test-score gap between whites and black and Hispanic minorities.


In the handful of states that have already banned or restricted affirmative action, some universities use what many educators call "proxies" -- ostensibly race-neutral criteria, such as interest in Critical Race Studies, that mainly attract minority applicants. Proxies are just one of a number of strategies intended to increase minority enrollment without explicit affirmative-action policies, from greater faculty discretion in admissions to more emphasis on overcoming socio-economic disadvantage.

Of the 959 UCLA law applicants admitted in 2002, 10.5% were black, Hispanic or Native American. Twelve of the 23 students accepted through the school's "programmatic admissions" -- primarily Critical Race Studies -- are members of those groups. Students accepted in this category had a median grade-point average of 3.42 and a median Law School Admission Test score of 159 -- compared with the median 3.72 grade-point average and 167 LSAT score for all admitted students.

Dean Jonathan Varat says UCLA Law initiated the Critical Race Studies program in 2001 to capitalize on the expertise of its faculty in the area. He acknowledges applicants citing interest in the program receive "something of an admissions boost" but says that is necessary to attract a wide range of students interested in the topic. "Nothing about the program is structured or designed to introduce race preference by stealth."

'Very Unhealthy'

Not everyone on the UCLA Law faculty agrees. Prof. Richard H. Sander says the school turned to Critical Race Studies after a preferential formula to help socio-economically disadvantaged applicants, which he helped design and UCLA implemented in 1997, didn't yield enough racial diversity to satisfy some faculty. In a 2001 dissent to an internal report recommending Critical Race Studies, Prof. Sander described the program as a "very unhealthy" and "legally suspect" way of increasing minority enrollment.

"I do not believe the solution is to find ways to rig the application process so that very small numbers of underrepresented minorities with weak academic qualifications are admitted through the back door," wrote Prof. Sander, who specializes in law and social science.

Kirk Kolbo, a Minnesota attorney who represents rejected white applicants in the Michigan case, says the Critical Race Studies boost "comes very close to" preference for minorities. "I'm not willing to say it's facially unconstitutional, but it sounds a little cute to me."

Other proxies are drawing scrutiny as well. On the undergraduate level, the best-known strategy -- used in Texas, California and Florida and favored by the Bush administration -- involves admitting applicants from the top tier of their high-school class, regardless of standardized test scores. (See related story.) In Texas, for instance, it's the top 10%. Since some high schools in these states are overwhelmingly black or Hispanic, "percent plans" guarantee that some minority graduates will get in.

But the class-rank emphasis doesn't fit elite law schools, which draw most of their applicants from predominantly white colleges. So law schools operating under affirmative-action bans have experimented with an array of substitutes. After a federal court prohibited race preference at the University of Texas School of Law in 1996, the school turned to the proxy of geographic diversity.

Three years ago, the law school set a goal of admitting at least 15 students a year from five state campuses in south Texas, a region traditionally underrepresented in its student body, and that happens to be overwhelmingly Hispanic. Such applicants "get a second look," says Monica Ingram, the law school's assistant admissions dean. Last year, 25 were admitted, and 19 enrolled, helping the school boost Hispanic enrollment from 5.6% in 1997 to 8% in 2002 -- still below the 12.5% in 1995 prior to the court decision.

The University of Washington School of Law -- in a state where voters banned affirmative action in admissions in 1998 -- favors applicants from "diverse backgrounds" who are "persevering against substantial obstacles such as prejudice or discrimination." Assistant student-affairs dean Sandra Madrid says the language could apply to any applicant and "is not strictly for students of color." The school's first-year class last fall had 13 blacks, Hispanics and Native Americans, two less than the entering class of 1998, when affirmative action was allowed.

Along with proxies, law schools are using two other tactics: stepped-up minority recruiting, and greater faculty discretion in admissions. This past year, for instance, the University of Washington law school instituted an LSAT-prep course for 120 juniors and seniors at the university, including about 100 minority students. Anyone can take the course, but law-school staff especially target minorities, Ms. Madrid says.

Despite the ban on racial preferences in California, first-year minority enrollment at Boalt Hall, the University of California at Berkeley's law school, has almost quadrupled in the last five years. There were 55 minority students out of 277 total in 2002, up from 15 out of 268 in 1997. The level now is slightly higher than it was in 1996, when restrictions on affirmative action in the state hadn't yet taken effect.

One reason, Boalt says, is that the school has reduced the proportion of applications categorically denied because of low grades or test scores. Instead, more applications are referred to the faculty admissions committee. Members may consider subjective factors such as hardships overcome and leadership ability, before deciding whether to accept, reject or wait-list each applicant.

Some suspect this system encourages tacit preference for minorities on the part of sympathetic faculty members. Blacks who enrolled at Boalt last year had a median LSAT score nine points below whites, 157 to 166. Michigan Law, which openly uses affirmative action, also had a nine-point gap.

In oral arguments before the Supreme Court on April 1, a lawyer for the University of Michigan, addressing the question of why affirmative action is needed if Boalt can maintain racial diversity without it, cited the LSAT figures. The attorney, Maureen Mahoney, told the court "there is no reason to think" Boalt could achieve racial diversity without relaxing standards for minorities. Mr. Kolbo, the lawyer for the other side, also says the LSAT data suggest Boalt still favors minority applicants.

Robert C. Berring Jr., Boalt's interim dean, says such allegations are "just wrong. We know we have to live under the dictates of the law. We also know we're being watched closely. I assume we'll be sued at some point, by one side or the other."

Of the 4,461 applicants nationwide entering law school in the fall of 2002 who had LSAT scores of 165 or above and undergraduate grade-point averages of 3.5 or above, only 29 were black and 114 were Hispanic, according to a Supreme Court brief filed by the Law School Admission Council, which administers the LSAT.

Before the affirmative-action ban in 1996, UCLA Law was one of the nation's most racially mixed elite law schools. It enrolled 60% of its students based solely on academic measures, while 40% received preferences, primarily for minority status. In some years, such as 1994, more than half of the entering class was nonwhite, including Asian-Americans.

After the voter initiative banned racial preferences, UCLA still admitted 60% of its students on academics alone. But for the other 40%, Prof. Sander helped develop a formula giving preference to students from families and communities with low incomes and limited education.

While this system yielded a socio-economically diverse class, it didn't replace affirmative action in boosting blacks and Hispanics. The main beneficiaries were working-class and lower-middle-class white and Asian students with solid academic credentials. Asian enrollment rose to 82 in 1997 from 48 students the year before, while black enrollment fell to 10 from 19.

Lena Hines, one of only two black graduates in 2002, recalled in a Supreme Court brief filed by UCLA law students supporting Michigan's affirmative-action policy, "I was repeatedly stunned by racist comments made by my fellow classmates."

More Leeway

Now UCLA Law has phased out Prof. Sander's formula and aims to admit 23% of its first-year class through socio-economic preference. Programmatic admissions, such as Critical Race Studies make up 5%. Those entering a separate program, public-interest law, make up 6%. Another 6% receive a boost for other discretionary reasons. The school is giving the faculty admissions committee more leeway -- as at Boalt Hall -- to decide who is disadvantaged. "We do a pretty damn good job," says Grant Nelson, chairman of the admissions committee. "If race is ever taken into account, it's at a very subliminal level."

Anthony Solana Jr., a Mexican-American student from East Los Angeles and the first member of his family to go to college, believes he was admitted to UCLA Law based on socio-economic preference.

After his parents died during his freshman year at Berkeley, Mr. Solana worked fulltime to support his three brothers and stepmother. He scored 153 on his LSAT, a dozen points below the median for UCLA law students. Like Ms. Dowdell, he was rejected by Michigan. Mr. Solana, who isn't in the Critical Race Studies program, says he maintains a B average and plans to graduate next year.

Mr. Solana has also written a 77-page guide for minority students applying to UCLA Law School. It advises applicants to "state that you are a person of color, or member of a historically underrepresented group, who has faced and overcome some sort of adversity." Asked why race would be relevant, Mr. Solana says, "the admissions process is very subjective." His guide also tells applicants that interest in Critical Race Studies "can be a key factor."

Prof. Devon Carbado, director of the Critical Race Studies program, defines it as "an approach to law that takes as its point of departure the notion that race is a social construction." Students take courses in five areas, including "comparative subordination" -- described as "how racial inequality is affected by discrimination based on gender, sexual orientation and disability." One popular seminar: "Race-Conscious Remedies," which analyzes affirmative action law. Students also edit ethnic law reviews at UCLA.

The program -- and the accompanying admissions break -- are much debated on the UCLA Law campus. Critics say it's too politically correct. "It is seeking a certain type of ideological perspective among applicants," says Prof. Nelson, of the admissions committee. "A minority group member who applies saying, 'I don't believe in race, I believe in assimilation,' may not qualify."

Some Critical Race Studies students feel stigmatized by classmates. "Students who are enrolled in corporatelaw programs frown upon students who choose to study Critical Race," says Khaled Beydoun, an Arab-American student from Michigan. "In many respects, that exacerbates the stereotype that students of color can only succeed because they're pursuing an academic track that's less respected."

Students don't formally elect the program until their second year of law school. This past year the program had a total of 33 students. But UCLA Law applicants indicate their interest by responding to an optional question on the application. They are also asked to describe extracurricular experience in the field.

Ms. Dowdell, who was raised by a single mother who works as a nurse's aide, declines to give her LSAT score and says her undergraduate grades were "competitive." She says she chose UCLA because of its Critical Race Studies program, the only one of its kind in the nation. "I'm not really interested in learning about the law unless I can relate it to race and how it's used to sustain the status quo," she says.

Write to Daniel Golden at [e-mail]

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