By: D. Marvin Jones
Grutter v. Bollinger was recognized by both liberals
and conservatives as a victory for affirmative action because it
affirmed a qualified right of state-run law schools to consider
race in admissions. But some victories mask retreat. Despite the
new life that Grutter was supposed to have breathed into
the constitutional legitimacy of race consciousness in admissions,
law schools are becoming increasingly resegregated: there is a
systemic, nationwide decline in minority enrollment that has been
ongoing for the last ten years. One factor that has contributed to
this problem is the gap between the average LSAT scores of blacks
and whites. The average score for blacks is 141.6. For whites it is
152.1. But like race, LSAT scores are in themselves a neutral fact.
The new problem flows from a pattern of law schools imposing
increasingly higher minimum LSAT requirements.
This over reliance upon the LSAT is the proximate cause of the
systemic decline in minority enrollment. If the current trend
continues, with schools continuing to raise their numerical
prerequisites, the prospect of law schools returning to the
virtually lily white patterns of the 1960s is practically
assured.
The imposition of minimum LSAT requirements nullifies the
beneficial effects of Grutter. While Grutter
affirms diversity, it also affirms the quantitative measures that
inevitably privilege members of social elites—the overwhelming
majority of whom are white. The current practice, which makes these
quantitative measures all-controlling, threatens to return us to
1960s levels of segregation. The only conclusion to be drawn as we
move in the direction of historic levels of de facto segregation is
that blacks are academically inferior as a group. This message
devalues black students and devalues diversity. Thus, Grutter
upholds diversity in the abstract, but by upholding a “testocracy,”
which is discriminatory, it plants the seeds of the resegregation
we are seeing.
As a solution, I recommend that we create a substantive right to
sue for testing abuse. My sense is that the minimum score approach
is deeply entrenched in our current academic culture. It is a
recent expression of hegemonic notions of merit interacting with a
society-wide retreat on the civil rights assumptions of the 1960s.
There is a need for a statute, which would provide legal redress
for the student who is qualified in terms of grades and all other
relevant criteria, but who is disqualified by express or implied
minimum score requirements on the LSAT. We need to test the test.
We need new legislation in the form of a statue, which would make
law schools presumptively liable for the discriminatory impact of
admissions test requirements. To rebut the presumption, law schools
utilizing minimum test score requirements would have to validate
the cut off they were imposing.
Alhough there may be no support for such a bill in either house
of Congress, by merely introducing legislation, we can highlight,
in hearings, and in the media, how this practice is
unanchored—creating an artificial and insurmountable barrier to the
dreams of minorities, while facilitating a virtual shut down in the
pipeline of minority attorneys. The system will not respond to
slogans like diversity. But history has shown it does sometimes
respond to political resistance. The effort at legislative reform
could become a site of effective resistance and public
education.