Racial Discrimination in the Marquette Law School?

We just came across something that we should have noticed over a year ago. But we’re going to post it now, since it raises a recurring issue -- the claim that the Marquette Law School is “too white.”

In the wake of a directive from the American Bar Association -- which has become increasingly activist and politically correct -- that American law school enroll more blacks and other minorities and break state law if necessary to do it -- Marquette Law Professor Christine Hurt posted the following on the blog Concurring Opinions.

This week’s events (the promulgation of new rules by the ABA on diversity admissions, publication of David Bernstein’s op-ed, Affirmative Blackmail, and the ensuing blogospheric discussions) have prompted me to post on a topic that I have been ruminating about for some time: admissions. At the Glom last year, I blogged a series of advice posts (here, here, here and here) from information gleaned after my first year on admissions committee. This is my second year on that committee, and I have to admit that the shiny has worn off a bit for me. I wanted to be on the admissions committee because I wanted to find out why we had classes with low percentages of minority students. Surely there must be some subconscious, yet insidious discrimination creating this result. I was going to ferret out this bias and squash it like a bug.

Presumably, Professor Hurt is saying this for rhetorical effect. She could not possibly have believed her Law School colleagues are a bunch of racists, could she?

What I found was a problem that I couldn’t fix. The problem is math. Prof. Bernstein and Thom Lambert point out that the ABA’s new rules show that the ABA has a conscious disregard for the rule of law. I would add that the rules also show a conscious disregard for math. For schools like Marquette, in the middle of the rankings, with a small faculty, administration and budget, cold, hard numbers are our problem when it comes to increasing diversity. Putting aside debates as to whether affirmative action is good, bad, constitutional, unconstitutional or whatever, the most affirmative action-minded admissions committee has to make very difficult choices in an environment of scarcity. Scarcity of applicants; scarcity of dollars.

Marquette’s problem is not that we don’t admit minority candidates. The percentage of minority candidates in our “admit” pool is larger than the percentage of minority candidates in our “applicant” pool. In fact, the percentage of minority applicants who become admits is larger than the percentage of nonminority applicants who become admits. However, the yield on minority candidates in our “admit” pool is quite low. These candidates have a lot of other opportunities. We do what we can: phone calls, scholarships, letters, emails, dinners, etc. I soon found out that to say that we discriminate against minority candidates is to say that we discriminate against candidates with 170 LSATs. We don’t end up with a lot because we don’t start out with a lot. And, no matter how many 170 LSATs we admit, our yield on 170 LSATs is very low, similar to our yield on minority candidates. These people have other opportunities, and our recruiting activities don’t change that much. If we were ranked higher, our yield would be greater. If our yield were greater, we would be ranked higher. See how that works, ABA?

However, the ABA now says that we are required to do more than just work with what we have. We need to commit resources to increase the number of minority applicants in our applicant pool. For instance, we could have a dedicated diversity admissions person, we could recruit in person at historically black colleges, we could hold minority applicant fairs, and we could have more minority scholarships. At present, our admissions office has one assistant dean and one office administrator. To comply, we would need to basically double our admissions budget. And our scholarship pool.

I teach corporate law, so I follow the recent white-collar prosecutions. Bernard Ebbers was criticized, and eventually punished, for blithely telling subordinates to “hit the numbers” without regard to the consequences. The ABA is also blithely telling law schools to do something without regard to the realities of numbers. I understand that in some situations, schools may have money, time and resources that they don’t want to commit to a laudable goal and will not until forced to do so. However, my impression is that many schools like Marquette will be caught in the middle because they actually do not have unlimited money, time and resources.

Being willing to “commit the resources” is a euphemism for giving black (and perhaps Hispanic) students more generous scholarship offers to induce them to come to your school.

Of course, in academia, prestige is also an important currency.

Marquette’s Law School, which is hanging by its fingernails at the bottom of the second tier of the nation’s law schools, can’t compete terribly well here either.

When Harvard Law School admits minority students who aren’t as academically capable as the white students they admit, they are still going to have pretty good minority students.

But when minority students who should be at Madison go to Harvard, and minority students who should be at Marquette go to Madison, Marquette has to accept minority students who belong at schools low in the third tier or in the fourth tier.

Or else fail to meet some quota.

Ultimately, shuffling minority student populations around does little good, although it serves the career interests of university bureaucrats and makes politically correct faculty feel all warm and fuzzy.

Until minority students graduate from high school with the same qualifications as white students, “diversity” is never going to be anything but a cynical con game. And of course, the problems begin long before high school.