End to affirmative action leaves uncertainty in the legal field – Published by Missouri Lawyers Media

Originally published by Missouri Lawyers Media here. Written by: Rasmus S. Jorgensen

Substance and shadows coexist in the wake of the Supreme Court’s decision to outlaw affirmative action.

Yes, Chief Justice John Roberts was clear: Race no longer has a place in admissions decisions at institutions of higher learning.

Yet, diversity remains critical to many law schools and law firms. And the decision in Students for Fair Admissions v. Harvard cast a shadow of uncertainty over how to achieve that diversity without breaking the letter or the spirit of the law — which Roberts assured us is one and the same.

Should a Missouri institution be in doubt, Attorney General Andrew Bailey spelled it out even further.

“All Missouri programs that make admitting decisions by disfavoring individuals based on race — not just college admissions, but also scholarships, employment, law reviews, etc.— must immediately adopt race-blind standards,” he said in a letter to universities and municipalities.

Fortunately for Missouri law schools, the decision came at a time when they weren’t making many decisions on admissions. So, while Bailey demanded immediate action, there is time to review where current policies may no longer work and how new policies may encourage diversity without factoring in race.

Minimal impact

At Washington University School of Law — the state’s most selective — Dean Russell Osgood and his colleagues were crafting a new policy in mid-July while continuing to review what exactly that policy must live up to.

“We are still studying the opinion,” Osgood said. “We’re also trying to find what knowledgeable people are saying about the opinion. Every time I read it, I see a different thing.”

Dean Russell Osgood
Dean Russell Osgood

While there isn’t one specific part of the current admissions policy that Osgood knows needs to go, WashU School of Law will create a new policy to better fit the new reality and better serve the school’s applicants.

“I think this is a challenge for all schools, and I think the good aspect of this decision is it’s going to force us to articulate clearly what it is that attracts us to applicants,” he said.

WashU law did not explicitly weigh race in admissions decisions before the June 29 ruling, but the existing policy was tailored to Grutter v. Bollinger. That 2003 decision found that the University of Michigan Law School did not violate the equal protection clause of the Fourteenth Amendment to the U.S. Constitution or Title VI of the Civil Rights Act of 1964 by using race as one of several factors in admissions decisions to achieve diversity in its student body.

Diversity in itself was never a goal at WashU, Osgood said, but having a classroom full of people with different experiences makes for better discussions and helps students get new perspectives that will make them better lawyers.

And while plus points haven’t been assigned due to race, WashU did consider that — as a school in St. Louis — it should produce lawyers that will effectively represent the city’s significant Black population.

But, Osgood said, the school is now making sure that it isn’t implicitly making decisions using criteria that could be said to be race alone.

As an example of what WashU will continue to look for, the school sees it as a big plus when applicants show a sincere interest in using their degree for a particularly good cause, such as working in legal aid or criminal prosecution or defense.

“We’re interested in that, and the reason is, we want our students to go out to a diverse set of careers, and making some kind of contribution to society besides the work in a large law firm is significant,” Osgood said.

At the University of Missouri-Kansas City School of Law, Dean Lumen Mulligan expects no changes to the admissions policy, as race played no role even before the ruling. But with the attorney general’s interpretation, Mulligan is looking at how some scholarships can be retailored since, per donors’ wishes, certain scholarships are only available to Hispanic students or students of color. The school is working with those donors to find ways to make their gifts conform to the attorney general’s interpretation.

At WashU, the law school has no scholarships or stipends that are only open to certain racial or ethnic groups, according to Osgood. However, there is a small number of wealthy individuals who may make such gifts without involving the school. As such, WashU has no power or responsibility to change that.

Factors other than race

But ensuring that the admissions process is not in conflict with the law is one thing; another is to do so while still achieving some level of diversity in the classroom — and in the legal field. One need not look further than Justice Sonia Sotomayor’s dissent to find a blessing to do so.

Roberts, noting that a dissent is rarely a good place to look for legal advice on complying with an opinion, clarified that “universities may not simply establish through application essays or other means the regime we hold unlawful today.” Sotomayor, however, claimed the tools she suggested — including socioeconomic factors and first-generation college applicants — are not interchangeable with race.

But socioeconomic factors can be harder to use in law school admissions. Admitting more people from zip codes that generally indicate limited means doesn’t work when applicants no longer live where they grew up.

A more effective tool, which both WashU and UMKC law schools rely on heavily, is interviews, which — in addition to application essays — is where the schools have the best chance to determine if an applicant has shown the ability to perform in spite of challenging circumstances including poverty and racism.

Dean Lumen Mulligan
Dean Lumen Mulligan

As Roberts found, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

At WashU law, the entering class of 2022 was 1 percent Native American, 8 percent Black, 8 percent Latino and 19 percent Asian, while at UMKC law, 20 percent of entering students in the fall of 2022 self-identified as being part of an ethnic minority. Both schools have many students from out-of-state or abroad, but for comparison, the U.S. Census Bureau estimated that in 2022, 78.4 percent of Missourians were white, not including those who are Hispanic or Latino.

Mulligan acknowledged that the Supreme Court’s decision caused pain to many, but he firmly believes that UMKC law can comply with the ruling and still emphasize diversity.

“We’re able to, on one hand, hold onto this deep principle of respect for the rule of law — the Supreme Court has ruled and we’re going to comply with the rule of law — and at the same time hold on tightly to the notion that diversity is key to our mission, it’s key to a legal profession that’s going to serve our nation,” Mulligan said. “For me, that’s the biggest thing, and it’s not a binary Sunday morning news show ‘X or not X’ type of situation.”

According to the dean, a big part of UMKC’s efforts lies in recruiting broadly; the law school visits all Missouri undergraduate institutions of size.

“It’s about being present at all of the places so that we’re reaching out to the folks in the rural parts of our state, so that we’re reaching out to folks if they’re at a historically Black college or university, giving that same invitation and telling them about the great things that we do there,” he said.

Undergrad trickle effect?

While the decision may not have much of a direct effect on law school admissions — at least at these two schools — it is less clear whether the proportion of Black students in their applicant pools will shrink over time as a result of undergraduate institutions no longer considering race.

In California, which outlawed affirmative action at public institutions in 1996, the number of African American applicants admitted fell by 66 percent at UC Berkeley and 43 percent at UCLA in the first admissions year following the ban. Those and other public schools in California have made significant strides since then but still do not admit as many minority students as some would like.

Ronald Alan Norwood
Ronald A. Norwood

But California and similar states don’t make perfect comparisons for the current nationwide situation, Mulligan argued, since California students could still apply at out-of-state and private institutions. So, predicting the future of admissions could be more complicated than it seems.

“Will it mean fewer students of color entirely in college? Will it mean fewer students of color in particular, very elite undergraduate colleges? Those are two very different things. But I don’t have the crystal ball,” Mulligan said.

Lewis Rice Member Ronald A. Norwood, who chairs his firm’s Diversity & Inclusion Committee, said he expects a decreased pipeline of graduates of color will result in a legal field that is even less representative of the Missouri population than is the case today. According to the most recent data, 11.7 percent of Missourians are Black or African American, while 4.9% of Missouri Bar Association members self-identified that way. Every other minority group is also underrepresented among Missouri lawyers, as are women.

At Missouri’s largest minority-owned law firm, Mickes O’Toole, managing partner Vincent Reese is also concerned that the lack of representation could get worse.

“My fear is that it will decrease the representation of minorities and underrepresented groups in undergrad, which will then trickle to law schools, which will make my job or the job of my contemporaries in the legal profession that much harder. We’re still going to strive for that diversity, but we’re going to have a small pool of applicants to deal with,” he said.

Vincent Reese
Vincent Reese

Achieving diversity within the legal field is not only important in terms of equal opportunity or proper representation of all groups. Having a diverse team of attorneys has also helped Mickes O’Toole grow, the firm believes, because its commitment to diversity and inclusion resonates with clients and makes for a more successful firm.

“Having really smart, bright attorneys that have different viewpoints and perspectives can help you solve or resolve that problem and you’re going to get different opportunities for resolving that,” Reese said. “And I think our clients understand that.”

AG looks at businesses

But efforts to increase diversity at law firms and other private businesses may face more scrutiny in the coming years. In a second letter, Bailey and 12 other state attorneys general cited the Supreme Court’s decision and Title VII of the Civil Rights Act of 1964 to put private businesses “on notice” that they must “refrain from discriminating on the basis of race, whether under the label of ‘diversity, equity, and inclusion’ or otherwise.”

“Companies that engage in racial discrimination should and will face serious legal consequences,” the letter said.

Caren Ulrich Stacy
Caren Ulrich Stacy

One increasingly used tool to increase diversity in law firms is to become Mansfield certified. To achieve Diversity Lab’s Mansfield certification, law firms must consider at least 30 percent from historically underrepresented groups when appointing to leadership roles and promoting into the equity partnership, among a dozen other activities that focus on the path to leadership.

Diversity Lab founder and CEO Caren Ulrich Stacy said the program remains lawful and does not face an increased risk of litigation, even with increased scrutiny on diversity efforts; the practice is not used for making decisions about who is hired or promoted, and employment lawyers review each iteration to ensure compliance with federal and state laws.

“Mansfield asks firms and legal departments to track demographic data to determine whether underrepresented talent — women lawyers, underrepresented racial/ethnic lawyers, LGBTQ+ lawyers, and lawyers with disabilities — have the chance to be considered for leadership roles and activities,” Ulrich Stacy said in an email. “It offers opportunities for consideration to those who may not have been considered in the past and seeks to broaden access to important activities like participating in pitch teams, and to key benefits like origination credit.”

Bailey’s office did not respond to inquiries asking if racial discrimination in hiring is only illegal when used in the final hiring decision, or if he also considers it unlawful when considering whom to interview.

More than 160 U.S. law firms achieved Mansfield certification last year, and the number of registered firms grew in 2023. But it is far from the only way that firms can increase diversity. Mickes O’Toole, for example, tries to remove bias in the hiring process by having a diverse pool of interviewers. Among Lewis Rice’s DEI efforts are scholarships to first-year law students and an internship specifically for students at Harris-Stowe State University, a historically Black university.

Norwood said he sees no conflict between those or other Lewis Rice DEI efforts and the ruling or the attorney general’s reading of it.

“It is not race based,” he said. “It is based upon those individuals who have been economically disadvantaged or who are underrepresented in the community in order to enhance diversity within the legal profession, which I think is wholly consistent with the law as I understand it.”

In his view, there is not much reason to think that Missouri law firms will face legal issues.

“Our firm doesn’t have any quotas, and I don’t know of any law firms locally that do have quotas,” he said. “I believe that our DEI program and the DEI programs of corporations and law firms are designed so that their hiring practices and promotion practices do not run afoul of Title VII.”

We will know more about the impacts of the court’s decision in a year, and much more in 10. But the work to level the educational and professional playing fields could go on long after that.

“The problem wasn’t created in a year or two or 10 or a couple of decades. It was literally created in centuries,” Reese said. “To think that you can create a situation over centuries and resolve it in a couple of decades is, to me, unrealistic.”

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