By Mark Tushnet

Writing a week after the Supreme Court upheld the University of Michigan Law School's affirmative action program (with an opinion that cited the amicus brief filed by the Association, superbly written by Professors Pamela Karlan and Michael Dorf), I feel compelled to replace my planned column on "Law and Allied Disciplines" with one addressing the Court's decision. (I also can't resist a certain smugness in noting that Justice Scalia, dissenting in the gay rights case a few days later, described the Association as an organization that any "reputable" law school must be a member of.) I'll put that column off until the next Newsletter, appearing closer to the Annual Meeting where there will be a number of sessions on Sunday afternoon, January 4, 2004, dealing with law and allied disciplines.

Obviously, the Association welcomes the decision finding constitutional well-designed affirmative action programs that take race into account when admissions officers and committees make decisions based upon their reviews of the complete files offered by candidates for admission. Here I offer some reflections on what seem to me the implications of the Court's decisions for law school affirmative action programs.

First, it shouldn't be difficult for law schools committed to affirmative action to develop programs consistent with the Court's decisions. The Court struck down the university's affirmative action program for undergraduates because it mechanically awarded a fixed (and large) number of points toward admission to members of minority groups. The law school program was different, in the majority's eyes, because it involved a "whole file" review in which race was given some weight, which might vary from case to case.

(I feel compelled to add my personal view - in my capacity as a scholar of constitutional law, not in my capacity as this year's president of the Association - that the line between the law school program, as administered, and the undergraduate program is thinner than the Court's decisions suggest. The dissents in the law school case make it clear, I think, that the majority was untroubled by a record that could fairly be described in this way: The law school determined, as a matter of policy, a rough target percentage of minorities it hoped to have in its entering class; that target might change from year to year, but in each year it remained the law school's goal; as applications were processed, the people making admissions decisions kept on eye on the progress they were making toward that goal; and - importantly - if the number of offers extended suggested that the school might fall short of its goal, the weight given race in the "whole file" review might increase to ensure that the target was met. At some point, the weight given race in the flexible process might exceed the weight it was given in the undergraduate program the Court found unconstitutional. This is not a "quota" as the Court defined it, but it is a system that takes numerical goals more seriously than the majority's ascription of "flexibility" to the program suggests. My sense is that advocates of affirmative action may be unduly nervous about reading the Court's decisions as aggressively as the foregoing analysis suggests can be done, and that probably would be prudent.)

Comments after the decisions suggested that they might have serious financial implications for large, selective universities. Perhaps so, at the undergraduate level. The picture is different for law schools, though, because the number of applications any school must process is smaller than the number at such universities. As I understand matters, my own institution, Georgetown University Law Center, processes more applications - 14,000 a year, including applications to our graduate program - than any other law school. We have a "whole file" admissions system, administered by four admissions professionals and an administrative staff of eight other employees. This is not a huge number of people in the admissions office, although I have to note that the admissions staff is extremely well organized and efficiently operated.

Law schools might have to expand their admissions offices a bit, and organize them somewhat more efficiently, if they do not now do "whole file" review and maintain a commitment to affirmative action. But, of course, confronting the financial implications of the Court's decisions provides an occasion for assessing the depth of each institution's commitment to affirmative action - not an obviously bad thing.

A second implication of the Court's decisions follows from the first. In the main, the decisions convert affirmative action from a legal question to a policy question. Some institutions may have shied away from adopting vigorous affirmative action programs because they were concerned about potential legal liability. That issue has been removed, and those institutions can now decide what they want to do as a matter of policy. Other institutions may have administered their affirmative action programs in an inappropriately - and now, illegally - mechanical way, and they too will have to reconsider their programs.

In this connection, I want to mention my favorite observation during the run-up to the Court's decisions. Kermit Hall, a legal historian, is president of Utah State University. Interviewed about affirmative action, he said that he was all in favor of it, but that of course his institution didn't have an affirmative action program, because it admitted essentially everyone who applied. It's important to keep Hall's observation in mind as law schools address affirmative action in purely policy terms.

The Court's decision in the law school case made it clear that there's an inextricable connection between an institution's decision to define its mission as being a selective institution, and the permissibility of even "whole file" affirmative action programs. The Court emphasized that it would defer to the institution's choices about selectivity and pursuit of diversity in the classroom.

But, not all institutions - not even all law schools, and not even all law schools that are members of the Association - are, or need to be, selective. (The Association's By-Laws state, "A member school shall admit only those applicants who appear to have the capacity to meet its academic standards," and require that law schools offer academic programs that ensure that its graduates "are academically qualified to participate effectively and responsibly in the legal profession." Those aren't requirements of selectivity.) An institution that defined its mission differently and offered admission to a much wider range of applicants (knowing that many would decline the offers to attend more selective schools) might accomplish more in the way of increasing the number of minority lawyers than would the same institution were it to be more selective and then implement a "whole file" affirmative action program.

These are important as policy questions, and it is a good thing that the Court's decisions allow law schools to confront them as such - although in my more cynical moments I suspect that few law schools where the choice is within the realm of possibility will do so, because few faculty members will want to identify themselves with institutions that have decided to be "less selective" even if more effective in increasing the number of minority professionals.

Third, the Court's decision upholding "whole file" affirmative action programs at selective institutions shouldn't be taken as an occasion for abandoning creative thinking about other ways law schools can attract more diverse classes. (Indeed, the Court's opinion suggests that law schools might have to think about alternatives, although the opinion's invocation of deference to institutional choices about mission suggests that the exploration of alternatives need not be terribly extensive.) The Court did note that "percentage" plans wouldn't work for selective professional schools. But, there are other possibilities for at least some institutions. I know of some discussions, not terribly far advanced as I understand it, of developing partnerships between law schools and historically black colleges and universities in their areas, designed to increase the probability that students at those colleges would apply and be admitted to the partner schools. It would be a shame, in my view, were the Court's decision to lead us to terminate those and similar discussions.

Fourth, and related to this, we ought not overlook an important point made by Justice Thomas in dissent. Although I disagree with the way in which he made the point, and with some of the conclusions he drew from it, I take the idea to be this: Affirmative action programs in selective law schools may be too easy, and ineffective, a "solution" to the problem that there are too few minority lawyers.

Scholars of career paths are pretty clear on what's needed to increase the number of minority lawyers in a dramatic way: Not affirmative action in law school admissions, which comes too late, but a substantial increase in the number of minority applicants qualified for and, importantly, interested in law school. And, these scholars agree, interventions to accomplish this broadening of what they call the "pipeline" have to occur much earlier than law professors tend to think. Law-oriented enrichment programs in colleges help a bit, but what really matters are interventions in secondary and even elementary schools. Fourth and fifth graders are interested in everything, and the trick is to figure out ways of sustaining their interest in professional education through their high school and college educations.

Of course law schools can't do much in the way of these early interventions. For one thing, you might get a discernible increase in the law school end of the pipeline through these early interventions, but a broadening of that end of the pipeline will result from an even larger widening at the early stage. Lots of kids who are targeted for the early interventions won't sustain their initial interest in law school. It's not a bad thing for minority kids to decide that, all things considered, they'd rather be doctors or engineers than lawyers, but it's not clear why law schools alone should devote resources to the kind of pipeline widening that would be necessary to increase dramatically the number of minority applicants to law schools as well as other professional schools.

And, of course, apart from resource questions there are questions of talent. Law professors haven't been selected for our ability to devise effective interventions in elementary schools, after all. Maybe the best thing we could do is donate law school funds to people who actually know how to do the job - but, of course, that's entirely unrealistic.

What is more realistic is the possibility of using some law school resources in elementary and secondary schools. A number of law schools have Street Law programs, often as part of their clinical programs, sometimes as purely volunteer efforts, in which law school students teach elementary and secondary school classes about law. (A survey dated 2001 identifies about thirty Street Law programs for academic credit, and about the same number of volunteer programs. Information about Street Law programs is available as www.streetlaw.org.) These programs have educational and professional benefits for the law students, but they also are ways of broadening the pipeline.

Street Law programs are one version of service learning, with which entering law students are increasingly comfortable because of the growth of service learning programs in undergraduate colleges. We might be able do at least something about the "pipeline" issues suggested by Justice Thomas's dissent through expanding service learning opportunities aimed at elementary and secondary schools. And, of course, aside from service learning, there's simply service - or, more traditionally, volunteer work by law faculty members and students.

The Supreme Court has lifted the legal clouds hanging over affirmative action programs. We now know the parameters that define constitutionally acceptable affirmative action programs, and can decide what we want to do largely in terms of the policies we think are desirable. In doing so, though, we shouldn't overlook the fact that affirmative action programs at selective law schools are only a part - and probably a rather small part - of the solution to the problems of racial justice that animate their adoption.

* This article appeared in the August 2003 AALS Newsletter.