Legal Considerations in Law School Admissions

HOT TOPICS in Admissions LEGAL ISSUES

Jim Vaseleck
Executive Assistant to the President and Associate Counsel, LSAC

1. Update--Affirmative Action Cases
   1. Hopwood v. University of Texas,
      2000 U.S. App. LEXIS 33523 (5th Cir. Dec. 21, 2000)

      On December 21, 2000, a three-judge panel of the US Court of Appeals for the Fifth Circuit:

      • affirmed the trial court's ruling that the University "had borne its burden of proving by a preponderance of the evidence that the plaintiffs would have had no reasonable chance of being offered admission to the Law School in 1992 under a constitutionally valid, race-blind admissions system,"
      • affirmed the trial court's reduced award of attorney's fees to the plaintiffs, and
      • reversed the trial court's issuance of an injunction against any use of race in the admission process, and remanded the case to the trial court for further proceedings relating to the injunction.

      On the issue of the injunction, the Fifth Circuit held that the trial court had exceeded the requirements of its earlier Hopwood opinion by barring the use of race for any purpose, including remedying the present effects of the University's past discrimination. Thus, the trial court's injunction was overbroad. The Fifth Circuit also held that the trial court had not complied with the requirements of Rule 52(a), which requires a federal court to write findings of fact and conclusions of law when issuing an injunction.

      As important as what the Fifth Circuit did is what it did not do. It did not overturn a different Fifth Circuit panel's prior Hopwood ruling that classroom diversity is not a compelling government interest that can support the use of race in law school admissions. There are some indications in the December 21 opinion that this panel might have decided the original Hopwood appeal differently on a number of grounds, but the more recent panel wrote, to widespread quotation, "it cannot be said that, as a matter of law, the panel's decision is 'dead wrong.'" Id., at *47.

      It is also worth noting that this Fifth Circuit panel believed that the earlier panel made new law when declaring educational diversity a noncompelling governmental interest, although it concluded that the earlier panel was justified in doing so:

      Texas also contends that "[I]n holding that diversity may never be a compelling interest justifying the consideration of race or ethnicity in admissions, the [earlier] Hopwood panel attempted to create a new rule of constitutional law despite the Supreme Court's continued hesitation to do so." Although we agree with Texas's characterization of the Hopwood II panel opinion, …a federal appeals court's creation of a new rule of constitutional law when a lacuna exists in the Supreme Court's rulings on the point does not constitute clear error. Id., at *48.

      This "lacuna" view of the state of the law makes an interesting contrast with the views recently expressed by the Ninth and Sixth Circuits.

   2. Smith v. University of Washington,
      2000 U.S. App. LEXIS 31160 (9th Cir. Dec. 4, 2000)

      On December 4, 2000, a three-judge panel of the US Court of Appeals for the Ninth Circuit upheld a trial court ruling that, under Bakke, classroom diversity is a compelling government interest that can support a race-conscious admissions program:

      The district court correctly decided that Justice Powell's opinion in Bakke described the law and would require a determination that a properly designated and operated race-conscious admissions program at the law school of the University of Washington would not be in violation of Title VI or the Fourteenth Amendment. It was also correct when it determined that Bakke has not been overruled by the Supreme Court. Thus, at our level of the judicial system Justice Powell's opinion remains the law. Id., at *35.

      The Ninth Circuit panel engaged in a careful analysis of all three opinions issued in Bakke, concluding that Justice Powell's opinion stated the narrowest rationale supporting the outcome in that case and is, therefore, controlling law. The panel also wrote:

      We…leave it to the Supreme Court to declare that the Bakke rationale regarding university admissions policies has become moribund, if it has. For now, therefore, it ineluctably follows that the Fourteenth Amendment permits University admissions programs which consider race for other than remedial purposes, and educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures. Id., at *34.

   3. Gratz v. University of Michigan,
      2000 U.S. Dist. LEXIS 18099 (E.D. Mich. Dec. 13, 2000)
      (the undergraduate admissions case)

      In an opinion issued December 13, 2000, District Court Judge Patrick J. Duggan :

      • upheld the University's race-conscious admissions process in place since 1999, and upheld the constitutionality of classroom diversity as a compelling government interest that can support such a process,
      • declared unconstitutional the University's race-conscious admissions program in place from 1995 to 1998, and
      • granted summary judgment to the individual, personally named defendants on the grounds that they enjoy a qualified immunity.

      Judge Duggan agreed with the Ninth Circuit's outcome, finding that educational diversity can constitutionally support a race-conscious admissions program, but for different reasons. His rationale seems to be that Bakke is somewhat confusing on this point, but the Supreme Court has not squarely said that diversity cannot constitutionally support the use of race in university admissions. Thus, he considered the question essentially as if it were new ground, assisted in this effort by a raft of information extolling the benefits of educational diversity that the University and various amici curiae supplied. Following his review of the diversity rationale, Judge Duggan concluded:

      This Court is persuaded, based upon the record before it, that a racially and ethnically diverse student body produces significant educational benefits such that diversity, in the context of higher education, constitutes a compelling governmental interest under strict scrutiny. Id., at *39 – *40.

      But not all admissions programs designed to achieve diversity will pass constitutional muster. Such programs must be narrowly tailored to meet that objective. Because Judge Duggan found one of the University's processes to be unconstitutional and the other permissible, a comparison of those processes is useful.

      The current admission process, which Judge Duggan found permissible:

      • assigns all applicants points for various qualifications and background factors on a 150-point system,
      • allows admissions counselors to assign 20 points to individual applicants on the basis of race, socioeconomic status, or athletic ability; six points for geographic factors; five points for leadership or service skills; for a total of up to 40 points,
      • allows admissions counselors to "flag" for further review the files of minority applicants and others whose score on the 150-point scale might make them less than competitive, but who possess some quality or characteristic that the University deems important in its entering class, and
      • has the same people review the files of all applicants from the same geographic area, regardless of race, using the same standards.

      Judge Duggan found unconstitutional the University's prior process, which:

      • designated a certain number of seats each year for minority applicants, as well as in-state applicants, foreign candidates, ROTC applicants, and athletes,
      • filled any unused "protected" or "reserved" seats with applicants from the general pool, and
      • established a minimum qualification profile for nonminority applicants, below which applicants' files were not considered, but had no automatic exclusion level for minority applicants.

      Public officials enjoy a qualified immunity from civil damages if their actions do not violate clearly established statutory or constitutional rights of which a reasonable person should have known. In concluding that the University officials in this case enjoyed such an immunity, Judge Duggan wrote:

      Courts themselves have been struggling for well over two decades to fully understand what constitutes a properly devised admissions program under Bakke. This Court cannot say that a reasonable official in Defendants' position should have known that the [University's] prior admissions programs were unconstitutional. Id., at *73.

2. OCR Test-Use Guide

   The U.S. Department of Education's Office for Civil Rights published The Use of Tests When Making High-Stakes Decisions for Students: A Resource Guide for Educators and Policy-Makers in December 2000. It is available on-line at http://www.ed.gov/offices/OCR/testing.

   The Guide does not have the force of law, but provides a snapshot of the current state of the law surrounding educational testing (including admission testing), as well as a discussion of sound measurement principles. Although its focus is on K-12 education, the test-use principles it elaborates clearly relate to law school admissions. The exact language of the Guide is carefully written, often reflecting compromises between multiple competing positions. The following summary of key principles is not meant to substitute for a careful reading of the Guide itself, but to provide a sample of the topics discussed.

   • Differences in test performance among various groups, standing alone, do not constitute a violation of federal antidiscrimination laws.
   • Tests are fair when they yield score interpretations that are valid and reliable for all groups of students who take the tests.
   • The use of a test that shows score differences among groups must be based on a careful analysis of its functioning—does it perform its function equally well for all groups—and must be consistent with sound measurement practices and the test sponsor's use guidelines.
   • Tests must not be used as the sole criterion for making high-stakes decisions.
   • Cut-off scores should not be used in the absence of empirical data to support the appropriateness of the cut-off. Even then, they should be used with great caution and continuously assessed.

3. Electronic Signatures

   The Electronic Signatures in Global and National Commerce Act (E-SIGN), P.L. 106-229, was signed by President Clinton, both in ink and electronically, on June 30, 2000. Most of its provisions became effective on October 1, 2000.

   The Act's principal purpose is to establish the legal standing of electronic documents, particularly contracts. It allows the parties to an agreement wide discretion in establishing for themselves the method by which the contract will be memorialized and "signatures" recorded. Some provisions describe the requirements for an enforceable consumer e-contract, although it is doubtful that admission applications fall into the "consumer contract" category and these provisions probably will not apply to them. Nevertheless, E-SIGN offers some general guidance about the requirements of an enforceable electronic admission application. (Note: for purposes of this outline, an electronic application is one in which an applicant completes the application form and submits it electronically, without printing, typing, or posting it.) In general, your electronic applications should:

   • State clearly the conditions to which an applicant agrees when submitting an application electronically; for example, the accuracy and completeness of answers to application questions, his or her ongoing responsibility to inform the admission office of any new, relevant information, etc.
   • Require some affirmative step by the applicant that indicates his or her agreement to the terms you have clearly stated. This step can take many forms, from a "submit" or "I Agree" button, to a requirement that the applicant retype his or her name under the agreement language, so long as it is clear that taking the step binds the applicant to the terms previously stated.
   • Allow the applicant either to print a hard copy of the application, or to access it electronically after it has been submitted, for record retention and verification purposes.

   Law schools should pay careful attention to "version control" of their electronic applications, catalogs, and Web sites. That is, you should have a process in place that will allow you to recreate the exact text of electronic documents as they existed on any given date in the past.

4. Social Security Numbers

   2000 N.Y. Laws 214, signed into law by Governor Pataki in August 16, 2000, reads:

   No public or private elementary or secondary school or college…shall display any student's Social Security Number to identify such student for posting or public listing of grades, on class rosters or other lists provided to teachers, on student identification cards, in student directories or similar listings, or, unless specifically authorized or required by law, for any identification purpose.

   The statute takes effect July 1, 2001.

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