To our law school's credit, when I was a third-year student, the school encouraged us to engage in dialogue with faculty as to how our isolation as women affected our educational experience. The second- and third-year classes had significantly more women and a women's law student association was formed. It was then that the sense of isolation began to diminish. However, in this context, we clearly were called upon to be the voice of women as part of our law school experience. While addressing academic issues, we were also addressing the lack of a women's restroom on the first floor of the law school.
Educational Deference
The deference given to a higher education institution by our Supreme Court is an awesome responsibility. It is certainly an important recognition by the Supreme Court that deference is given to the mission statements of colleges and universities in deciding how selective or elite their institution seeks to be and importantly that diversity is an essential element to the mission of educating lawyers and future leaders of our society. The Court's decision is laudable in its recognition of the educational importance of diversity in the student body and the richness gained by each student from the perspectives of their fellow students. The minority opinions of the Court, however, raise some interesting issues regarding the plurality's assumptions and address some historical decisions by educational institutions that should be given careful thought so history is not repeated. The plurality opinion has safeguarded possible abuses identified by the minority opinions. The individualistic and holistic nature of the Law School's review of race and ethnicity as a plus factor, as opposed to the "mechanistic" assigning of a number to an applicant's admissions score rejected by the Court, ensure a policy consistent with the law.
Justice Thomas certainly raises some hauntingly ethnic based decisions made by elite educational institutions as to how many individuals of one background were found to be "too many qualified individuals" in proportion to their numbers in society. In the present context, what if, for example, the K-12 institutions in our country do a dramatically better job in educating and preparing underrep-resented minority populations and that results in more qualified applicants to elite law schools than the percentage of that underrepresented minority in the general population? The Court's Opinion is there would no longer be a need for these policies and they could be "sunsetted." However, will there be protection to ensure that having addressed educational performance successfully, that there will not be a backlash where qualified applicants are found to be over represented in reference to their percentage in the population? Further, in the present context, what safeguards will be put in place to ensure that any constitutionally consistent policy is not applied inconsistently or abused by applicants? These are all significant challenges for our universities in tailoring policies consistent with the Constitution and reviewing them on a regular basis so that policy makers in our universities recognize the lessons of the past, the realities of the present, and the ever-changing landscape of our Nation.
25-year hope
In my third year of law school, as women law students in the '70s, we met with the Dean and indicated that we were not sure the faculty was aware of our issues and concerns and how certain jokes or being singled out on a continuous basis affected our law school experience. The faculty of the law school voluntarily met one-on-one or two-on-two with women law students. This type of dialogue continued outside of the law school throughout the '70s and '80s. The changing nature of American society 25 years later was reflected in law school class compositions of near equal numbers of men and women. Therefore, Justice O'Connor's reference to a 25-year hopeful sunset in reference to the current law school policy may not only reflect societal changes post-Bakke, but reflects the societal change as affected by the increased number of women in law school admissions over the past quarter of a century. The unanswered question is whether those same assumptions can be made today in the context of current societal conditions as to the underrepresented minorities referenced in affirmative action admissions policies.
Joy Roberts
Critical Mass
The Court's concept of "critical mass" sparked two provocative notions for me: (1) "token numbers of minority students" versus "critical mass" and (2) improving educational opportunities throughout our Nation's educational system. The practical question arises as to what numerically constitutes a "critical mass." For instance, in my 1997 entering law school class, I believe there were approximately 15 African American students out of 282 total students. To my law school's credit, I believe this was the highest enrollment of African American students the law school ever had and perhaps 15 African American students would constitute a critical mass within the confines of a university admissions policy. However, from my recollection, throughout my law school education there was an average of two to three African Americans in any given course, which could range from approximately 15 to 30-plus total students in a classroom. Therefore, the following questions arise: What is a meaningful number of minority students in a classroom? and, Do two or three minority students in a classroom feel isolated and/or as if they are the "voice" for their minority group?
Second, our elementary education system needs to provide enriching substantive training for our youth so that children from diverse backgrounds have an equal footing to compete for the best higher education opportunities. Ensuring diversity and equality of education at the elementary and pre-kindergarten levels is critical, otherwise affirmative action may always exist as a remedial measure for continuing educational inequities.
Educational Deference
Justice Thomas asserts that the State of Michigan has "no compelling interest in having a law school at all, much less an elite one." (p. 10, J. Thomas' Opinion). However, doesn't every state have a compelling interest in having an ABA accredited law school? ABA accredited law schools have satisfied a rubric of strictly scrutinized requirements including, but not limited to, the nature of the school's curriculum, quality of instructors and student body, and extracurricular activities available for further educational enrichment. Justice Thomas argues that because states such as Alaska, Delaware, Massachusetts, and Rhode Island do not have ABA accredited law schools, it is "further evidence that Michigan's maintenance of the Law School does not constitute a compelling interest." (p. 10, J. Thomas' Opinion). Yet, is the measuring stick for a compelling state interest in having a law school based upon whether every state in our Nation has an ABA accredited law school? Simply because Alaska and other states do not have ABA accredited law schools does not equate to Michigan not having a compelling interest in having an ABA accredited law school for in-state and out-of-state students to attend.
Second, Justice Thomas' assertion that there is "no pressing public necessity" in having an elite public law school is questionable. (p.9, Justice Thomas' Opinion). Isn't it plausible that students, parents, and the communty where a university is established have a public necessity in having an elite public law school? Can it also be argued that an elite public law school may serve the role of enhancing the quality of other public law schools within the state and nationally in order to maintain a competitive curriculum and training ground for future attorneys across the country? Furthermore, as the Court asserts, if law schools are the training ground for many of our national leaders, then arguably there is a pressing public necessity in ensuring that all students have equal access to the best legal education, whether at a public or private institution, as many legal opportunities are generated for law students based upon the quality or "elite" status of their law school.
25-year hope
The Court asserts, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." (p. 31, Opinion of the Court). However, considering the deeply riddled issues of race and equality in our society, it is uncertain whether the Court's hope can be achieved within the next quarter of a century. In the next 25 years, the issue of race as a factor in higher education admissions policies will surely be revisited in our educational institutions and perhaps in our courts. The more compelling national interest and challenge within the next 25 years is whether our nation will have evolved to a greater understanding of the diverse people that live within our country such that there will be substantial strides toward meaningful racial and ethnic equality. The answer to this challenge will determine when a sunset is needed for affirmative action policies in higher education institutions.
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