Knots in the Pipeline for Prospective Lawyers of Color: The LSAT Is Not the Problem and Affirmative Action Is Not the Answer
Putting aside momentarily the debate over the appropriate use of affirmative action in law school admissions, I almost all would agree that increasing the number of diverse or underrepresented individuals in law schools, and subsequently the legal profession, is a laudable goal and one that will have a salutary effect on the legal profession and, ultimately, society. The debate, to date, has centered on whether affirmative action can lawfully be used to achieve that increase and, if so, whether the use of affirmative action is beneficial for its recipients. Further, both opponents and supporters of affirmative action agree that the elimination of the need for the continuing use of affirmative action is also a laudable goal and one that should be embraced societally.
In Grutter v. Bollinger, the Supreme Court almost wistfully concluded with dicta that affirmative action should not be necessary twenty-five years after the opinion.4 I have written an article in favor of the continued use of affirmative action (actually going so far as to suggest that even quotas should be lawful), yet I also believe that an optimal state of affairs in legal education is a world in which affirmative action (including, of course, quotas) is not used because there is nevertheless a proportionate representation of currently underrepresented groups in our law schools and, subsequently, in the legal profession. In other words, in an optimal society there would be no need for affirmative action and all would support the elimination of affirmative action in admissions because blacks, Hispanics, and Native Americans (the underrepresented minority groups) would be admitted to law schools at least in proportion to their percentage of the U.S. population without its use.