Fairness, as legal elites see it

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The Supreme Court heard arguments in the blockbuster racial-preferences case Fisher v. The University of Texas on Wednesday. But before the gavel pounded, the deans of Harvard and Yale law schools had already rendered a verdict. The duo took to the op-ed pages on Sunday to voice dismay that the Court may do something unthinkable to ivory tower legal elites — interpret the Constitution as written.

The Fourteenth Amendment’s Equal Protection Clause, which bans governmental discrimination, is one of the most venerable — and most litigated — of our Constitution’s promises. Indeed, Ivy League professors this autumn will regale doe-eyed first-year law students (1Ls) with the wisdom of judicial decisions enforcing the clause, like Brown v. Board of Education. The deans, however, have a different message for anyone examining their own practices for equal protection infirmity: Butt out!

One reason legal elites don’t like scrutiny of their racial spoils system is that the vast majority of the public would find it fundamentally unfair. After all, this isn’t about a couple points here or there. The difference between how hard it is for an average white or Asian student to get into a top-level law school and how hard it is for an average black, Hispanic or Native American student is stunning. For instance, the University of Michigan, a top-tier institution, and defendant in a previous case examining this issue, was admitting black students with Law School Admission Test scores as low as 151, basically rock bottom. A white student had virtually no chance of admission without closer to a 170 — among the truly elite. The current case examines the University of Texas’ similarly massive disparity with the SAT. In other words, select schools are not using race to give a little nudge; beyond a bare minimum threshold, they consider little else.

Aside from the system’s dubious constitutionality and fundamental unfairness, until recently an open question has been whether it works at all. Alas, the results are as predictable as they are sad. According to a U.S. Commission on Civil Rights report as well as a new book, the current system produces the following:

  • Half of African-American students are in the bottom 10 percent of their law school classes at the end of their first year.
  • African-Americans have 2.5 times the drop-out rate of their white counterparts; four times the initial bar failure rate; and six times the chance of never passing the bar.
  • Two-thirds of black students who drop out after the first year are in the bottom five percent of their class.

These depressing statistics are of course not a comment on collective ability but the natural result of placing individuals in environments no one prepared them for.

The deans counter that a “holistic” approach accounting for race allows them to field the “best possible class.” They note personal stories and letters of recommendation they receive from minority students who have overcome hardship. These applicants and their supporters realize admissions people will eat up stories of racially tinged woe. But overcoming struggles is not race-specific and shouldn’t be more important than putting people in environments where they have a real chance at success.

The deans also claim that racial preferences benefit the entire student body: “No one who has graduated from a law school can seriously doubt that the hours of peer debate among students and within study groups contribute at least as much to students’ education as does time in class.”


“Debate,” to the extent it exists in these near-homogeneously progressive institutions, is much more likely to be between 10 white liberals and one white conservative. Study groups may benefit 1Ls striving to adapt and make friends, but after their first year, students more often forego them for time spent in clinics, externships, and jobs.

In fact, those “trench” environments, away from doctrine, theory, and administration-imposed conformity, is where the real learning takes place. There students are much likelier to be exposed to situations beyond their cultural comfort zones and gain the knowledge and experience that will benefit them as lawyers.

The time to end racial preferences in law school admissions has arrived. Besides being unconstitutional, affirmative action is a policy failure. Elite law school deans who defend the current system are a case study in the promotion of governmental discrimination and unfairness.

Paul H. Jossey is a lawyer living in Alexandria, Virginia. His interests include environmental policy and First Amendment issues.