August , 1999

Diversity and Legal Education:
Student Experiences in Leading Law Schools

By Gary Orfield and Dean Whitla
As published in Diversity Challenged (Harvard Education Publishing Group, © 2001)

Introduction

For more than two decades the legal foundation for the policies that have permitted the integration of highly selective universities and professional schools has rested on the Supreme Court's 1978 Bakke decision. Justice Powell's controlling opinion upheld race-conscious admissions policies on the grounds that they support the important goal of producing a diverse student body representing many kinds of experience and points of view to enrich the discussions and learning experiences on campus.¹ While the value and importance of this goal seemed obvious to many within the university community, the academic world had done very little to demonstrate how diversity works on campus and what difference it makes. Recently, there have been sharp challenges from opponents of civil rights and in 1996, a federal appeals court outlawed affirmative action in Texas in a decision that claimed that student diversity had no educational benefits. There are now a number of lawsuits and referendum campaigns around the country in which the impact of diversity is an important legal or political issue. Direct evidence on the impact of diversity on education is now essential.

This study explores the impact of diversity by asking students how it has influenced their educational experiences. Most discussions about the effects of diversity are simply assertions; people with differing ideologies come up with highly divergent arguments. If a central question is whether or not racial diversity broadens the intellectual life of the university and enriches the educational experience in the student community, there are only two reliable sources-the students and the faculty. This study reports on the experiences of students captured in a high response-rate survey administered by the Gallup Poll at two of the nation's most competitive law schools, Harvard Law School and the University of Michigan Law School, as well as through data collected through an email/internet survey at five other law schools. The data indicate that the Supreme Court was correct in its conclusions about the impact of diversity in Bakke and earlier higher education decisions. It spells out how and in what settings students experience different educational outcomes. The study also explores the differences among students-the experiences of those who believe diversity has a negative influence as well as the large majority who see important gains.

Trends in Access

There have been vast changes in the level of access to college for minority students since the 1960s, with very encouraging trends over much of that period. Between 1972 and l996 the percentage of blacks enrolling in college the fall after completing high school rose from 44.6% to 56.0%, and the percentage of Hispanics enrolling rose from 45.0% to 50.8%. The percentage of white enrollment rose from 49.7% to 67.4%. The racial gap between the percentage of black and white high school graduates going on to college was smallest in the mid-1970s. The gap began to widen after Bakke and a variety of policy changes and scholarship opportunities made college less accessible in the l980s.
In 1971, among young adults, age 25 to 29, 11.5% of blacks and 10.5% of Latinos had college degrees, compared to 22.0% of whites. By 1998, the black rate was up to 17.9% and the Latino number was 16.5%, but the white rate was 34.5%. The gap had been 10.5% between blacks and whites in l971 but grew to 16.6% 27 years later. The black enrollment rate actually declined during the l980s, but then began to grow again.³ Even before the rollback of college civil rights policies, higher education was far from the ultimate goal of equal access. Professional education also experienced substantial changes. Law school enrollment grew from 1% black in l960 to 7.5% in l995.³

Highly selective college and professional schools tended to have very small numbers of minority students until the late l960s and early 1970s. Their normal recruitment and selection systems did not produce significant minority enrollments and many went through the peak of the civil rights era with very few minority students.⁴ During the late l960's many universities decided to undertake systematic efforts to increase their minority enrollments, often spurred by the social upheaval of urban riots, student protests, federal policy, and the assassination of Martin Luther King. In the Ivy League, the percentage of black students grew between 1967 and l976 from 1.7% to 4.5%.⁵ There were similar or larger changes in a number of highly selective public universities. These significant changes, at a time when access to leading universities was becoming much more competitive and the country more conservative, led to opposition.

[1] There are two other basic arguments for affirmative action. The first, remedying the history of discrimination by universities, has tended to be discounted by the courts in recent years. The courts have assumed that the enactment of civil rights laws and the passage of time have largely eliminated the continuing impact of this history, a conclusion that is strongly disputed by civil rights leaders. The other is the social benefits of affirmative action for the society and the professions. This argument has been central to some of the most important recent research, but was not recognized as a basic justification in Bakke.
[2] National Center for Education Statistics, The Condition of Education 1999, Washington: Government Printing Office, 1999: 116, 126.
[3] William G. Bowen and Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions, Princeton: Princeton University Press, 1998: 10.
[4] In the 19 states which historically had separate black public universities, real integration often did not begin until the l970s.
[5] James E. Blackwell, Mainstreaming Outsiders: The Production of Black Professionals, 1987, cited in Bowen and Bok, p. 7.

To view the COMPLETE REPORT and study conducted by The Civil Rights Project go to:

Diversity and Legal Education: Student Experiences in Leading Law Schools (in PDF Format)