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Excerpted From: Nancy E. Dowd, Kenneth B. Nunn, and Jane E. Pendergast, Diversity Matters: Race, Gender, and Ethnicity in Legal Education, 15 University of Florida Journal of Law and Public Policy 11 (Fall, 2003) (110 Footnotes) (Full Document)

DowdNunnPendergastLegal education has traditionally been a white male affair, to which women and people of color have only recently gained entry. For many years, white male dominance of legal education was maintained through admission policies consciously designed to exclude women, members of disfavored ethnic groups, and the economically disadvantaged. Within the last quarter century, the composition and complexion of law school student bodies have changed as historically underrepresented groups have been admitted to law school in greater numbers, chiefly as the beneficiaries of race and gender conscious admission programs. These race and gender conscious admissions programs, generally referred to as “affirmative action” plans, have always been controversial and have been the target of a growing number of court challenges, anti-affirmative action voter initiatives, and legislative and executive counter efforts.

The legal status of affirmative action in higher education admission programs was clarified by the Supreme Court's recent decision in Grutter v. Bollinger. Grutter involved a challenge to the University of Michigan Law School's affirmative action admission policy by a white applicant whose application was rejected. The white applicant claimed she was denied admission due to her race. The Michigan law school admissions process was designed to create a diverse student body. The law school claimed student body diversity provided unique pedagogical benefits that would enhance the legal education it provided to its students. In addition, the law school claimed it could not admit a “critical mass” of students of color without the conscious consideration of race. In a 5-4 decision, the Supreme Court agreed with the University of Michigan Law School's claims. The Supreme Court held that “the Law School has a compelling interest in attaining a diverse student body” and that the means used by the law school to produce a diverse student body passed constitutional muster.

In her opinion for the majority, Justice O'Connor approved of the law school's diversity goals, writing that “attaining a diverse student body is at the heart of the Law School's proper institutional mission.” According to Justice O'Connor, a diverse student body provides “substantial” education benefits. When students are diverse, “classroom discussion is livelier, more spirited, and simply more enlightening and interesting.” In addition, “student body diversity promotes learning outcomes ..., better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” Not least of all, the Grutter majority found that diversity “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.”

Although the Grutter majority found that the pursuit of a diverse student body was a compelling state interest, it still required that the means used to reach that interest meet the strict scrutiny standard of constitutional review. To pass strict scrutiny, the Court required that the means chosen to accomplish the state's interest be narrowly tailored. For an admissions program to be narrowly tailored, it cannot establish a quota for certain racial groups nor put members of those groups on a separate admissions track. Instead, a narrowly tailored race conscious admissions plan must provide for individual consideration of each applicant and be applied in a flexible, holistic way. According to the Court, “an admission program must be flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and place them on the same footing for consideration, although not necessarily according them the same weight.” Finally, the Supreme Court required the “good faith consideration of workable race-neutral alternatives” and that the affirmative action program be a temporary measure, limited in time, for it to be narrowly tailored. The Court concluded that the Michigan Law School admission plan met these requirements and therefore declared the plan to be constitutional.

Grutter was not a total victory for supporters of racial and gender diversity in legal education. First, the decision adopted a broad definition of diversity, one that is likely to dilute efforts to admit significant numbers of students who are members of historically underrepresented groups. The Court found it persuasive that the law school took into account “a wide variety of characteristics besides race and ethnicity that contribute to a diverse student body.” Second, although Justice O'Connor's opinion does not directly address this point, the decision appears to disapprove of race and gender conscious admission programs designed to eliminate societal discrimination. Third, the opinion does not embrace race and gender conscious admission programs as much as it tolerates them. Race and gender conscious admissions programs are, according to Justice O'Connor, “potentially ... dangerous” because of the possibility that they may harm “innocent” whites.

The most significant critique of Grutter, however, is that the U.S. Supreme Court once again applied its jurisprudence of formal equality to address law school admissions. This jurisprudence presumes that race, ethnicity, and gender are generally irrelevant to government decision-making and that individuals who differ only in respect to their race, ethnicity, or gender should be treated the same. In effect, formal equality requires individuals to be treated equally (procedural equality) whether or not they are in fact equal by social, economic, or political measures(substantive equality). As a consequence, formal equality makes it difficult for the government to address societal discrimination or preexisting inequalities due to race, ethnicity, or gender.

Critical theorists, particularly those associated with Critical Race Theory, have questioned the soundness of formal equality as a theoretical support for the legal treatment of social injustice. The colorblindness critique developed by Critical Race Theory argues that formal equality's failure to recognize racial difference masks inequality and white dominance. Traditional civil rights proponents have also challenged the assumptions of formal equality. They have asserted that legal means to confront inequality must be grounded in context and not approached through some beguiling abstraction that has no meaning in the real world. Feminist theorists have similarly critiqued formal equality as not only masking and reinscribing inequality, but sometimes providing new tools for those who have benefitted from gender, race, and class privilege to sustain privilege, rather than promote equality.

The Supreme Court did not need to consider law school admission programs in a way that was devoid of context. A growing body of literature exists that both describes and contextualizes the law school experience. Based on surveys of law students and alumni, narratives, and other data, this literature describes a law school experience that may be formally equal, but that is culturally unequal. According to these sources, a significant differential in experience, comfort, and challenge exists for those who are latecomers and outsiders to legal education, especially women and people of color. The law school, then, may be described as a complex cultural institution that presents different challenges for different people. In the cultural setting of legal education, race and gender differences operate differently and also sometimes interactively, providing examples of the multidimensional nature of self and the complex layers of prejudice.

This Article presents more evidence of the inequality that persists in legal education for students. Based on a survey of University of Florida law students conducted in 2001, this study reaffirms the existence of differential experience and an inegalitarian culture in legal education. However, it also demonstrates the importance of diversity and the recognition by a significant majority of students of the value of race and gender pluralism. In our view, these competing findings provide a clear guide to the future direction of legal education.

Rather than continuing to wonder if formerly segregated institutions that are formally desegregated are truly equal, the Florida survey suggests that the focus must instead be on developing legal education that serves all students equally well by being conscious of differences, context, and culture. To accomplish this goal, we must consider both how, in the short-term, we deliver equal legal education to students that come with different assets and experiences through an educational structure admittedly significantly unequal, and also how, in the long-term, legal education might function within a truly equal educational structure and provide a model for equality.

Part II of this Article describes the background for the Florida survey. First, we discuss the history and current context of gender and racial diversity at the University of Florida College of Law. Next, we summarize the literature on the experiences of women and people of color in law schools that was available before we began this study.

Part III of this Article details the genesis of the survey conducted on race, gender, and ethnicity at the University of Florida, and the survey results. The Florida survey is unique because it is not limited to gender analysis, but also includes quantitative data on the impact of race and ethnicity on law students' experiences. The survey that is reported in this Article began as a student project at the University of Florida in 1999. In 2001, the law school surveyed all students then enrolled in the law school, and approximately 300 (or 20%) responded.

Part IV of this Article discusses the implications of the Florida survey and, more broadly, the implications of difference and inequality for legal education. We argue that enough evidence exists of the presence of inequality to move on from asking whether inequality exists. We need to stop asking whether legal education dispassionately trains all the qualified students who enter. Rather, we argue, we need to focus on solutions for the inequalities that have been consistently documented. The renewed emphasis on issues of admission to law school in the Supreme Court, coupled with the challenges over the past decade to admissions policies, have led, in our view, to an overemphasis on formal equality goals of admitting minorities and women without considering that more than mere admission is needed. Certainly that position is not very controversial either, as the formal equality consequences of desegregation of elementary and secondary schools have been to reinscribe inequality rather than reduce it. We hope to contribute to the shape of legal education by thinking through some solutions, or at least some directions, for transforming a culture of difference. Thus, “how do we change culture?” becomes the question we must pose.

[. . .]

The race and gender survey of students at the University of Florida Levin College of Law supports much of the data collected in prior surveys that substantiates the inequality in educational experience of minorities and women in legal education. Rather than more surveys, we should focus on strategies for change. Broader patterns of dissatisfaction and negative outcomes of existing models of legal education tell us that strategies that include historical outsiders can lead to more meaningful and successful professional education for all.

Chesterfield Smith Professor of Law, University of Florida Levin College of Law.

Professor of Law, University of Florida Levin College of Law.

Director of the Center for Public Health Statistics and Associate Professor of Biostatistics, University of Iowa.

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