Monday, August 24, 2020

Do 150 Law School Deans Reject Grutter?

Jason Mazzone

June 23, 2028 is on the horizon. That’s the date on which the Supreme Court “expects[] . . . the use of racial preferences will no longer be necessary to further the interest” of public law schools in “student body diversity.” Grutter v. Bollinger (2003). When, as seems inevitable, the Court confronts Grutter’s built-in expiration date, what will it make of this recent statement from 150 law school deans?: 

Preparing law students to be lawyers requires that they should be educated with respect to bias, cultural awareness, and anti-racism. Such skills are essential parts of professional competence, legal practice, and being a lawyer. We believe that every law school should develop such training and education for its students. . . . We believe that the ABA should require, or at least consider requiring, that every law school provide training and education around bias, cultural competence, and anti-racism.

In Grutter, the Court had a particular view of the compelling interest that justified the use of race in admissions. Importantly, it did not see student diversity as an interest in and of itself. Instead, student diversity was the means to the educational and broader societal missions of law schools. Diversity within the law school, the Court explained, “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” It “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” And it promotes law schools as legitimate “training grounds” for society’s “leaders.” The Court also found in Grutter that consideration of race in admissions was necessary to achieve these goals: there did not exist a race-neutral alternative.

The law deans’ letter seems to cast doubt on all of this. It suggests that over the past seventeen years use of race in admissions has not produced the interests that Grutter recognized as compelling. Instead, the deans report, “[w]e are in a unique moment in our history to confront racism that is deeply embedded in our institutions, including in the legal profession” and thus a brand new approach is required. So too, the deans letter suggests, there is in fact a race-neutral alternative: the training requirement the deans are now proposing. 

Perhaps one avoids these conclusions by saying the following: consideration of race in admissions has generated some of the contended benefits of diversity but additional steps are needed to fully secure the benefits. Perhaps. It isn’t the position the law school deans advance in their letter. And in this business, with a ticking clock, precision might be everything. 

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