Law school admins unite to bypass affirmative action ban.

Law ​School⁣ Administrators Seek Ways‌ to⁣ Circumvent Supreme Court’s Ban on Race-Based Admissions

Top law school administrators are brainstorming ways to​ circumvent​ the Supreme Court’s ban on⁣ race-based admissions,‍ advising schools not to​ create a “record” of⁣ “discriminatory ‍intent” and ‍warning that socioeconomic preferences will ‌result in too⁤ many white and Asian students being admitted.

That advice, dispensed ‌at a legal⁣ conference in July, came from UC Berkeley Law School dean Erwin Chemerinsky and University of Michigan general⁢ counsel Timothy Lynch. Hosted ⁤by the American Association of Law Schools, the event focused on how institutions could use race-neutral means to achieve diversity.

When attendees questioned the ‍legality of ​such methods, arguing that they could be struck down because of their race-conscious motive, Lynch ‍stressed ‌the need for⁣ plausible ‌deniability.

“You ‌should be ⁣aware right now ⁣of the record you’re ​creating,” Lynch told⁢ the conference, which was ‌ostensibly devoted ⁢to helping schools comply with the Supreme Court’s decision. “What are your faculty ​saying ⁢in​ emails? What ⁢are they saying in public?”

Plaintiffs often look ⁤for evidence of “discriminatory intent,” Lynch explained, noting that the Supreme Court explicitly forbade backdoor racial preferences in its ruling. The ⁣”key question,” he said, is “what can you ⁣say right ⁤now is the race-neutral explanation for doing it, and how do ‌you avoid having your faculty colleagues muddy the record?”

“Great point,” replied Chemerinsky, who moderated the ⁣conference. The Berkeley Law ​dean⁣ had been caught on tape ⁢a few days earlier, ​in June, describing how his school gets around California’s ban on affirmative action in faculty hiring, joking‌ with students that‍ “if ​ever ​I’m deposed, I’m going to deny I said this to you.”

In another exchange, ⁣Lynch‍ warned that socioeconomic preferences were no substitute for racial ones—and​ appeared ‌to suggest that class-based ‍admissions help too ⁤many white and Asian ⁣students.

It “doesn’t do the trick⁢ demographically,” he ​said, because ⁢in states like Michigan, “there are ‍many more people ‍who are not underrepresented who are low-income.”

Lawyers⁣ who reviewed ‌footage of‌ the conference⁣ said it⁢ could form part of⁣ the very “record” Lynch warned against ​creating,⁤ exposing schools to legal liability and giving plaintiffs ample ammo for a lawsuit.

“If ​these people were ever sued for race discrimination, this video would be exhibit A to the jury,”⁢ said Samantha‍ Harris, an attorney who specializes​ in education law. “Even if the speakers could articulate a non-discriminatory reason for their policies, ​the video ‍calls into question their sincerity.”

Lynch’s statement‍ about socioeconomics⁢ was a‌ red flag, said​ Gail Heriot, ⁣a law professor at the University of San Diego who ‌sits on the U.S. Commission on Civil ‍Rights, ​and⁤ Dan Morenoff, the executive director ‍of the American Civil Rights Project, which litigates reverse discrimination cases.

“What’s the old definition of a gaffe? Saying exactly what ‍you mean,” Morenoff said. “It’s like​ they’re trying ⁣to assure they’ll lose the eventual litigation.”

Reached⁢ for comment, ‍Chemerinsky said the exchanges had been ‌taken out of context.

“The assumption of the conference—and of Mr. Lynch’s remarks and mine—was that schools will⁤ comply in good faith with the Court’s‌ ruling,” Chemerinsky said. Addressing the video from ​June, Chemerinsky added that⁤ Berkeley “does not consider race​ in any of its hiring and admissions decisions.”

The conference, which was ‍ posted on ⁣YouTube, ​is ‍perhaps ⁣the most brazen example yet of universities seeking to get around the Supreme ⁢Court’s ruling. Columbia Law drew criticism this month when it announced—and then​ rescinded—a requirement that ⁤applicants submit 90-second “video statements,” a move widely seen as a pretext for racial discrimination. Colleges⁢ across the country have‍ also⁣ added essay ‌questions ⁣ on “identity,” while‌ some law schools have waived the⁣ Law School Admissions Test, on which white ​and Asian students tend⁤ to outperform their black peers.

The conference⁢ suggests critics are ‌right to suspect an ⁣ulterior‍ motive behind these changes. It comes as conservatives are gearing up to ⁢challenge admissions programs—such as those put​ in place by Thomas Jefferson ⁣High School, an elite magnet program ⁤in Alexandria, Va.—that ⁢use zip codes and other colorblind criteria as proxies for race.

While the June affirmative‌ action ruling ⁢did not address such practices directly, courts have long barred ‍employers from adopting facially neutral job requirements to exclude women or ‍minorities. The same⁣ principle will likely apply to university admissions going ⁤forward, Heriot said.

“If a university‌ selects admissions criteria BECAUSE of the effect it anticipates the⁣ criteria ⁤will have‌ on the racial composition of the class, the ⁣criteria will ⁣be considered racially discriminatory”—and, after the⁢ affirmative action​ decision, a violation of‌ the law, Heriot wrote in an email. “Lynch makes ​it​ very‌ clear that this is ⁣what he’s suggesting.”

The University of Michigan offered its ⁤”complete support‌ to Mr. Lynch’s comments.”

“It is‌ our view that Mr. Lynch was a‌ strong advocate for​ compliance with the law⁢ across the institution,” said⁣ Rick Fitzgerald, a spokesman for the⁣ university. “And he offered his comments ​in the context of U-M’s lived experience.”

Fitzgerald ‍also ‌noted that Lynch, who​ did not respond to a request for comment, ‍began his remarks by saying he ​was “not⁢ providing legal advice.” That‍ caveat would probably protect him from a malpractice lawsuit, said Noah Peters, a‍ former solicitor of⁣ the Federal Labor Relations Authority, but wouldn’t​ stop his statements from being used as evidence against the university.

“Courts look⁢ to decision-maker statements to ⁣divine intent,” Peters said. Lynch’s “general advice—to resist ‍the⁤ constitutional obligation to not consider⁢ race—is ‌really disturbing.”

Though Chemerinsky did say⁣ the legality of race-neutral proxies remained “unresolved,” he⁢ seemed fairly sanguine about⁣ their use. As long as the program ⁤is “written and … executed in ⁤a race-neutral fashion,” he said, “I don’t ​see a problem.”

But other ⁣speakers seemed keen on having a‌ fallback ⁢plan should those programs go the way of affirmative action. Mark Alexander, the president ‌of ⁤the​ American Association of Law Schools and the faculty chairman of Villanova Law, suggested that religious ​schools ‍like⁣ his own might ‌be able to secure a First Amendment exemption⁣ to the ban on racial preferences.

As a “Catholic institution,” Alexander said, Villanova believes that “we⁢ are strengthened ⁣by individuals of ⁢diverse ⁢backgrounds. … If‌ we⁤ were not allowed to pursue those values,​ would that​ be a violation of our religious freedom?”

Probably not, said ⁣David Bernstein, a‍ professor at George Mason Law ⁣School who has⁣ written extensively⁤ about ⁤the conflict between free speech and anti-discrimination law.

“A⁣ long‌ line of precedents suggests that⁢ eliminating ‌racial discrimination ⁤is a compelling government interest“—meaning it justifies ​restrictions on the First Amendment—Bernstein told the Washington Free Beacon. Alexander’s argument is “a total loser.”