Affirmative Action - "Preferences"

Douglas Laycock laycockd at umich.edu
Mon Nov 20 08:35:05 PST 2006



  There is Michigan, Wayne State, and Michigan State.  The Michigan
State Law School is strangely structured; it is a private law school
inside a public university.  Someone on the MSU faculty could no
doubt explain it better, but the law school and the university have
separate boards.  The legislature provides no money to the law
school.  The law school used the university's credit to borrowed for
a building, but the law school is paying the debt service.  Given
this structure, I assume tuition is at private school levels.  But
Michigan's tuition is also at private school levels, and Michigan is
public. 

  So I'm not sure how important the public-private distinction is
here, but Lynne is right that Michigan has two public law schools. 
And Earl is right that those schools are Michigan and Wayne State. 
The privates are Michigan State, Detroit Mercy, Thomas Cooley, and
Ave Maria.  And of course there are many out of state law schools no
more expensive than in state at Michigan.  If the question is whether
Grutter could have gone to law school somewhere else, the answer is
undoubtedly yes. 

  Quoting Earl Maltz <emaltz at camden.rutgers.edu>:

> What about Wayne State (a very good public law school)?
>
> At 04:06 PM 11/18/2006 -0800, Lynne Henderson wrote:
>
>> Finally, we get back to the zero-sum game problem.  Ms. Gratz was 
>> not denied a college education, she was denied at the
"prestigious"
>> school.  Many, many people go on to great success from "lesser" 
>> colleges, as I tried to point out a while ago.  (Ms. Grutter may 
>> have had a stronger claim since at the time, Michigan had only one

>> public law school, but now it has two)
>>
>> Respectfully,
>> Lynne Henderson
>>
>>
>> On Nov 18, 2006, at 3:07 PM, DavidEBernstein at aol.com wrote:
>>
>>
>>> One thing one should insist on in the affirmative action debate
is
>>> some forthrightness about what's going on.  Personally, I think
the
>>> fact that the statistical gap among groups' performance on
various
>>> entrance exams actually lends support to preferences for the
groups
>>> that do worse, because, at least in the short-term, there really
is
>>> no practical alternative if one wants to include a reasonable 
>>> representation of all racial groups in the classes of elite 
>>> schools, other than abolishing traditional admission criteria 
>>> (which may or may not be a good idea, but is in many ways a more 
>>> extreme solution).
>>
>>>
>>
>>> Nevertheless, various university (including) law school officials

>>> seem to feel the need to deny that preferences exist in any 
>>> meaningful fashion (I can cite examples, but I don't think this 
>>> point is controversial), that at most they are simply choosing 
>>> between candidates who are more or less equally qualified.
>>
>>>
>>
>>> Here are some actual stats, for law schools.
>>
>>>
>>
>>> This is from the American Lawyer, circa the debate over
Proposition 209:
>>
>>>
>>
>>>
-------------------------------------------------------------------------------
>>
>>> Total  law school applicants nationally in 1996-97 with:
>>
>>> Black Hispanic White
>>
>>> LSAT of 160 (83.5 percentile) and GPA of 3.25 (a low B+ 103 224
7,715
>>
>>> average)
>>
>>> LSAT of 164 (92.3 percentile) and GPA of 3.50 (B+/A- 16 45 2,646
>>
>>> average)
>>
>>> Average for all applicants receiving offers from Boalt for '97:
>>
>>> LSAT of 169 (97.7 percentile) and 3.74 GPA (high A- average)
>>
>>> Minority enrollment at for the entering class of '97:
>>
>>
>>>                          Black Hispanic
>>
>>> Harvard Law School  49 24
>>
>>> Stanford Law School 12 19
>>
>>> Yale Law School       18 15
>>
>>>
>>
>>> At Boalt the same year
>>
>>> LSAT (percentile) GPA
>>
>>
>>> Nonminorities 168 (96.9) 3.72
>>
>>> Asian 166 (95.0) 3.71
>>
>>> Hispanic 159 (80.5) 3.50
>>
>>> Black 155 (67.0) 3.54
>>
>>>
>>
>>> The point of the American Lawyer article, which was very
supportive
>>> of AA, is to show that if Boalt wanted to matriculate African 
>>> American and (to a lesser degree) Hispanic students, it had no 
>>> choice but to either (a) abolish traditional admissions criteria;

>>> or (b) use preferences.  It's hard to argue with that conclusion.
>>
>>>
>>
>>>
>>
>>> From the lower court's Grutter opinion:
>>
>>>
>>
>>> In the 1994 entering class (at U. Mich. Law School), white
students
>>> had a median LSAT score of 168 and a median UGPA of 3.57, while
the
>>> corresponding figures were 157 and 2.97 for African American 
>>> students, and 162 and 3.26 for Mexican American students. In the 
>>> 1995 entering class, white students had a median LSAT score of
167
>>> and a median UGPA of 3.59, while the corresponding figures were
155
>>> and 3.18 for African American students, and 159 and 3.35 for 
>>> Mexican American students.
>>
>>>
>>
>>> Now, anyone who looks at these statistics rationally recognizes 
>>> that having certain types of minority status is a huge advantage
in
>>> law school admissions, and the same is true for undergraduate 
>>> admissions at elite colleges.  And if certain groups have an 
>>> advantage, the necessary corollary is that other groups are at a 
>>> disadvantage.
>>
>>>
>>
>>> That doesn't mean that the policies are unjustified.  Indeed, as
I
>>> mentioned, the yawning gap in test scores actually makes me more 
>>> sympathetic to such policies.  (Though, as I've written, I become

>>> very concerned when the desire for diversity in law schools leads

>>> to policies that encourage the matriculation at lower ranked law 
>>> schools of students who, unbenownest to them, statistically have
a
>>> poor chance of ever passing the bar).  But one reason that the 
>>> proponents of AA haven't made as much headway as they might with 
>>> public opinion is that instead of universities being forthright 
>>> about what they do and why, they resort to various forms of 
>>> subterfuge (e.g., claiming they are most concerned with
"diversity"
>>> because of the important of diverse perspectives in the
classroom,
>>> while having liberal arts faculties whose political views range 
>>> from left to far left), admittedly partly a result of the 
>>> restrictions that Bakke put on the legally permissible 
>>> justifications for preferences.
>>
>>>
>>
>>> But as academics, we can and should acknowledge the reality of
the
>>> situation, and start from there.  Gratz may or may not have been 
>>> admitted to U. Mich. in the absence of preferences, but, if the 
>>> claim is that one's race shouldn't be a factor in admissions, I 
>>> don't see how that's either here nor there.
>>
>>>
>>
>>> David Bernstein
>>
>>> Visiting Professor
>>
>>> Brooklyn Law School
>>
>>> Professor
>>
>>> George Mason University
>>
>>> School of Law
>>
>>>
>>
>>> In a message dated 11/18/2006 5:34:45 PM Eastern Standard Time, 
>>> Mark.Scarberry at pepperdine.edu writes:
>>
>>>
>>>> Unless I'm mistaken, the Supreme Court did find that the Univ.
of
>>>> Michigan's undergraduate affirmative action admissions program 
>>>> violated Gratz's 14th Am. right to equal protection. Curiously, 
>>>> the Post story omits that point and leaves the reader with the 
>>>> contrary impression.
>>>
>>>>
>>>
>>>> Mark S. Scarberry
>>>
>>>> Pepperdine Univ. School of Law
>>>
>>>
>>>> From: conlawprof-bounces at lists.ucla.edu on behalf of Steven
Jamar
>>>
>>>> Sent: Sat 11/18/2006 1:48 PM
>>>
>>>> To: conlawprof at lists.ucla.edu
>>>
>>>> Subject: Affirmative Action - Washington Post Article
>>>
>>>
>>>> I found this interesting, especially the numbers relating to 
>>>> actual admits of whites and Asians compared to Gratz.:
>>>>
>>>>> To back the contention that Gratz did not suffer because of
race,
>>>>> the university points out that 1,400 white and Asian students 
>>>>> with lower grades or test scores than hers were admitted that 
>>>>> year, while 2,000 whites and Asians with higher test scores
were
>>>>> denied admission.
>>>>
<http://www.washingtonpost.com/wp-dyn/content/article/2006/11/17/AR2006111701640.html>http://www.washingtonpost.com/wp-dyn/content/article/2006/11/17/AR2006111701640.html[1]

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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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