Affirmative action is about more than diversity, it’s an issue of fairness as well. Minorities who have traditionally been left out of the professions must enter them, both as role models and to help break the cycle of the underclass. It takes generations to catch up. It’s not going to happen all on its own. We have to affirmatively make it happen. — Barbara J. Holden-Smith
The brief goes on to state: “It is critical that law schools continue to be able to consider race as a factor within their holistic admissions process because no race-neutral method exists for achieving racial diversity in law schools, while fulfilling law schools’ other important goals.”
The term “affirmative action” refers to actions that achieve nondiscrimination. It was first used officially in the United States in 1965 by then president Lyndon B. Johnson in an executive order prohibiting discrimination in hiring, with the stated purpose “to correct the effects of past and present discrimination.”
“We engage in a holistic review process and if you remove race from that, you’re not really being holistic,” Geiger pointed out. He and others worry that if law schools were forced by the Court to adopt a race-neutral admissions system, they would be a lot less diverse than they are now.
Johnson had in mind minorities who had been historically discriminated against, such as African Americans. But in the Regents of the University of California v. Bakke case, which the Supreme Court ruled on in 1978, the plaintiff, Allan Bakke, was white. Bakke sued for admission to the University of California Davis Medical School using the equal protection clause of the 14th amendment (as did Abigail Fisher in the Fisher case), asserting that he would have been admitted if he were African American.
And that would have a chilling effect on the teaching and practice of law, assert many law scholars and practitioners. “There’s no good proxy for race,” said Professor Barbara J. HoldenSmith, vice dean at the Law School and a member of its admissions committee. Substituting social class as a measure won’t ensure racial diversity, she said. “African Americans are only 12 percent of the population. If colleges and law schools took only poor black students, there would be even fewer African Americans attending than there are today.” It would also hurt top-tier law schools like Cornell’s disproportionally by further restricting its applicant pool, she said. How will the Supreme Court ruling in Fisher affect the study and practice of law? “The real risk in this case,” said Dorf, “is that the Court might say: You can’t even use a holistic plan of the sort that Grutter approved if you can substantially increase diversity using nonracial means like a percentage program. That would mean other places would have to start using a percentage plan even if they haven’t been using one already. I think it’s not likely as a matter of the Court’s style,” Dorf said, “but it’s certainly thinkable in terms of the logic of prior opinions.”
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The Court in the Bakke case, which was nearly evenly divided, found that the school had a compelling interest in a diverse student body and as a result could consider race in its admissions program, but only as a “plus” factor. It could not employ a “quota system” by setting aside seats for applicants of a particular race and selecting minority students using standards not applied to all applicants, as it had been doing. Nevertheless Bakke himself was successful; the Court ordered his admission to the University of California Davis Medical School. The notion of a diverse student body as a compelling state interest was first introduced in the Bakke ruling by Justice Lewis Powell. “Powell said, ‘We’re a society of many minorities,’’’ noted Professor Aziz F. Rana, a constitutional law scholar. “He was skeptical of using affirmative action to remedy past discrimination and was wary of thinking of the Equal Protection Clause [of the 14th amendment] in terms of the historical experience of any one group. In his mind no group had been distinctively mistreated.”