Via Stanford Law School’s Website: Race Conscious College Admissions: KCBS Radio

Stanford Law Journal posted this on their website: (my ramblings in blue)

Publication Date: February 16, 2010 Source: KCBS All News Radio 740 AM

Professor Bill Koski discusses the delicate issue of affirmative action in higher education after activists have challenged Prop. 209: “A coalition of activists students from the University of California are filing a lawsuit to overturn the higher education portion of California’s proposition 209 the affirmative action initiative. The group “By Any Means Necessary” says that proposition 209 violates the equal protection clause in the Fourteenth Amendment of the US constitution. The students and their lawyers claim that the UC system is segregated and that African American and Latino student enrollment at UC Berkeley has dropped steadily since proposition 209 was passed in 1996. For more we’re joined on the KCBS news line by Stanford law professor Bill Koski. We thank you so much for the time today. What does proposition 209 have if anything to do with the equal protection laws in the constitution.”

“Proposition 209 was a voter passed initiative that only applies to the state of California. And what it does is it bans the use of racial preferences or racial discrimination in university admissions and other government contracting. In essence, what it says that decision makers in government have to be race neutral in their thinking. And this — Proposition 209 — was actually upheld against a court equal protection challenge back in 1997. And so it has survived one challenge but I understand the folks who are now taking a fresh look at this — they believe that the times have changed and that within the data showing that there has been this precipitous drop in African American and Latino enrollments at the UCs. They believe that it is now ripe for a new challenge under the equal protection clause.”

One may argue that many minorities may have become disinterested in law school. Equal Protection requires similar opportunities be provided for all regardless of race, color, national origin, etc. I know most people will argue that objective criteria such as LSAT, undergraduate gpa are the most determinant factors in law school admissions. It was my understanding that if an equally qualified minority was available and were underrepresented for an opportunity or admission, then he or she should be selected. Thus, the disparate impact on blacks and Latinos would give rise to them as a suspect class and thus allow them to have standing for a cause of action.  Oft-times I read people “yell” liberal-heart agendas are taking over and unqualified persons are trumping qualified whites. As far as a legal education is concerned I don’t believe this is so unless someone shows me evidence otherwise. With rare exception, regardless of the tier ranking you will likely see very few minorities, especially Black Americans in law school, even now.  I am unsure how for so many years state colleges and universities which receive grants and federal funding as well as the federal student loan circuit were able to circumvent affirmative action via the Civil Rights Act of 1964. The system goes from a history of condescending paternalistic governance of blacks and education to a free for all-the door is open, it’s all on your back if you succeed. There is an underlying issue regarding preparation for higher education of minorities to equitably compete. Instead of addressing these underlying issues the law school industry promotes lower tier schools to accept minority students to show that there “is still room for them” in the legal field. This in turn, along with inherent racial discrimination is a definite recipe for failure. Maybe it’s a good thing law school enrollment among minorities have declined. Though I think undergraduate school is a good experience it isn’t for anyone; one still cannot justify depriving certain people a chance to attend a good school

Around the year 2000 I came across and article in the newspaper and actually kept it throughout the years. It was entitled: “Black Law Students disappearing with end to affirmative action” by the Associated Press. One guy stated:  “That really is the story–that we have been giving such huge preferences based on skin color that it kind of masked the fact that we have such a long way to go in the K-12 system to get black kids prepared for the competition,” said Ward Connerly. So untrue, really? huge preferences…to blacks? The truth is that there weren’t hardly Black American students attending law schools, and that the door remained slightly ajar for few and now some desire to completely shut it again. 

Yet, I’ll agree that he makes a valid point regarding student preparation before reaching college. I even noticed a journal article 23Harvard BlackLetter Law Journal 107 (2007):  entitled: Justifying Affirmative Action in K-12 Private Schools; which I still need to take a more in-depth look at. Interestingly the author focuses on private schools because obviously little attention is giving to most public schools, especially now.  To start, with the funding of public middle and high schools based on zoning and racial preferences (within the classroom), quality of teachers, we would be addressing root problems. During the 1970s and 1980s bussing was the sought after solution, instead of creating or improving schools in predominately black communities, just send them to a school where the majority of the student body is white, that’s how you get around investing in the future of black neighborhoods, schools and local government.

But this would take years and an honest admission that the current method of state/public schooling is not adequate for most Americans. With the history of this country it is difficult to digest when an oblivious person says they can go to a good school or just move to a good neighborhood. Economic, social and historical factors all play a trickle down effect on what people have access to. It’s like saying anybody can go to Paradise Island and enjoy it’s fruit, it’s the best of all places–but to get there you need specific equipment, canoe, compass, life-jacket, a captain, etc. Some things are to some degree fundamentally an unequal playing field, yet all the players are expected to engage the system as if it were even. As a result, the same people who propogate that it’s a free market and that equal opportunities exist will just say see “they can’t compete” or “don’t throw money at them” or “reverse discrimination.” When people are maligned, constantly culturally bashed, put in conditions comparable to animals, de-humanized and basically dis-enfranchised, what do you expect the result to be? One can do this with any race, deprived of decent education because we’re dealing with conditioning environments and modifying behavior, then this becomes the world they know, this is what becomes “normal.” Then expect to suddenly be able to easily adapt to a world unbeknowst to them, that just seems fundamentally unfair. For those who were not raised or exposed to this environment, certain inequities become more evident and surprising as you age, because as a child it was unknown to you. Thus, growing up thinking you can be whatever you want, no matter what trials or systemic curveballs are thrown to you, one becomes bewildered; because it was only when you were a certain age to understand a degree of depth of the system, you realize you’re in too deep. Now it appears insurmountable to survive.

“Without looking at the lawsuit because I haven’t of course seen the lawsuit — it hasn’t been filed yet, to my knowledge. I can imagine that what they’re thinking here is that given the numbers of students who are African American Latino in the UC system — it’s largely because the system now uses test scores and grades almost exclusively or to some large extent in making admissions decisions. And what the feeling might be is that in the state of California at least the resources devoted to schools with high percentages of African American and Latino kids in the K -12 system are much lower than more affluent neighborhoods which are perhaps more white and Asian American. And what they’re thinking is that if you have access to fewer resources, fewer honors classes, fewer counselors, fewer people that get you prepared for college, that that in effect is discriminating against those students in terms of their preparation for the UC system. And then when the UC system chooses to use just test scores and other kinds of grades for their admissions process it perpetuates that discrimination. Now that might be the theory that they’re working under and that might be the changed circumstance that they can point to that in fact there has been this drop and there is this potential fact of resource disparity in the state of California.” “There’s no doubt this is a novel claim and I’m sure that they feel very strongly about their position. It will be a difficult case to pursue. One thing that has happened in the interim on the is another — affirmative action case at the University of Michigan Law School in which the law school itself wanted to use race conscious admissions policies. But it was challenged by a white student who said that that type of affirmative action was essentially reverse discrimination. At the University of Michigan case their admissions policy was upheld because it took an individualized holistic look at each applicant. And it didn’t use a quota system for African American and Latinos. So at least when a university chooses to use or is able to use race conscious admissions policies that are very narrowly tailored it will be held up against an equal protection clause challenge but that doesn’t mean that there is any obligation on a university to use those race conscious policies especially where Prop. 209 exists. One thing that I will say may happen with the filing of this kind of lawsuit — the great hope will be that it will change the conversation. How is it that we as a state can tolerate such unequal numbers of African American and Latino students in our flagship UC system and how is it that we can reach out and try to change those numbers given that we have Prop. 209 in existence.”

The issue is the root problems, not scoring and making holistic approaches to admissions the norm, if it means lower standards to appease interest groups. Regardless of race the system should want to promote qualified diversity. Look at how often the U.S. attracts scientists and engineers from abroad but fails to invest in its own education system that would provide dedicated, qualified Americans in the same field. A quality education starts when they’re young, not all of sudden you’ll be thrown out into the real world let’s try to maneuver around the problem instead of creating real solutions. The system is failing because it doesn’t care about future generations, just how to profit on the way things work now, which obviously isn’t too well.


  1. JD Underdog Said:

    I am a minority who tried to better my station in life by going to law school. I could have had the things I have now without it. But yes, institutional change is needed — from our government, to our education system, to the time honored traditions of our parents.

    • A Law School Victim Said:

      I think most of us were trying to have a better life, not just money, but ease. I think agriculture/farming is one field that would have yielded better results.

  2. Nando Said:

    Great discussion. I emailed Professor Randall Kennedy of Harvard Law School a while back with this concern. I think overall it is okay that more minorities are eschewing law school – even though their scores are improving. Kennedy emailed me from his Blackberry immediately and told me that he thinks it is a “tragedy” and that we need MORE minority lawyers.

    He is a strong writer, and a smart guy but he comes from the Ivy League academic perspective. Law school is more expensive than ever. As such, law school is putting more young people of modest means – including many minorities – in a deeper financial hole. The market for lawyers is shrinking, and has been for some time. Taken together, more low-income whites and minorities are going deep in debt with little chance for legal work. This needs to change.

    Perhaps, minorities choosing to forego law school will send a message to the ABA that minorities are on to the game: they KNOW the schools want “diversity” but that is only for show. Many will never practice law. Where is the ABA on this reality – if they care so much about diversity?!?

  3. Kurt Said:

    The California voters supported Prop 209 because they were sick and tired of much less qualified black students being given preferential treatment in law school admissions. The voters wants all applicants to be judged on their own merits, not the color of their skin.

    I graduated from one of the top 14 law schools about 10 years ago and I can tell you that many of the black students in my school came from middle to upper middle class families that had money – those kids neither deserved nor needed help to do well in life. Instead, by effectively adding 8-10 LSAT points onto their scores, two other far more qualified and academically prepared students were forced to attend lesser schools.

    There is is idea that letting in less qualified black applicants will make the classes more diverse in terms of ideas discussed. In other words, the argument is that these students will present viewpoints that the other students might not have considered. However, I can tell you that in my experience this argument has absolutely no merit whatsoever. The black students in my classes did not provide fundamentally different viewpoints if they even expressed their viewpoints at all.

    There is a correlation between LSAT scores and performance on state Bar exam tests. A student from a top law school should have no problem passing any state Bar exam if that student studies. However, there were several black graduates from my class who never passed the state Bar exam and ended up working as Westlaw reps or in non-legal employment.

    I believe that the use of Affirmative Action in higher education is colossally unfair and actually perpetuates stereotypes.

    • A Law School Victim Said:

      First, I hope you saw in my blue comments that we should be promoting QUALIFIED diversity; that I will agree on. However, the underlying issue is with underlying education before attending university or graduate school. I’ve heard about white IVY leaguers who couldn’t pass the bar either so I don’t think it’s far for you to be sooo offensive against blacks. Second, I am not surprised that those elite black students DID NOT provide and divergent ideas than their similarly situated counterparts; that’s where the socio-economic elitism plays a role. I’ll even mention that there were even rich UPPER CLASS blacks during American slavery during 19th century that did not care to fight with abolitionists or get involved in the ‘slavery issue.’ It’s a part of history. The reality is that just as those elite black students got into Harvard and Yale so did whites, and the white with prominent family, connections and ties probably beat out a more qualified black who didn’t have any of those things, in other words it goes both ways. I don’t promote pushing less qualified, the point is the system is supposed to provide equal education so all can equitably compete, this is ideal obviously and not reality. Yet I will note the danger of using extremes in one’s response– “colossally” I think is just too extreme.

  4. James Said:

    As ever, I think anybody who uses the phrase “reverse discrimination” to describe affirmative action hasn’t earned the right to talk about it. On the one hand, they are tacitly admitting that disparate treatment of minority students in denying them access was wrong in the past without recognizing that access to education and an actual education is wrong. On the other hand, they’re proving that they don’t understand that discrimination is discrimination – it doesn’t matter what direction it goes in, it’s still the same thing. Changing the language is a distraction, not edification.

    That said, even though BAMN and their tactics were a huge distraction and annoyance during my days at Michigan, I sometimes hope they havve something resembling success. But it’s hard to repeatedly fight a system that makes you look outlandish and militant every time you fail to persuade with reason.

    I enjoyed reading your post. hadn’t heard anything out of California in a while aside from housing and budget news. Good to know someone is still thinking about education, there.

    • A Law School Victim Said:

      It’s walk a mile in someone’s shoes, no one would dare to except a rare few. I agree with your comment. The black intellectuals are too busy in politics or commercial dealings so sometimes grassroot organizations who may not understand diplomacy, using historical facts and statistics in an organized manner detracts for the argument because people attach the argument to the persons bringing it forth, not that it’s a correct principle.

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