donald_jones_web.jpgBut freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want… It is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. – Lyndon Baines Johnson.

Race still matters. Blacks make up 12 percent of  the U.S. population, yet blacks comprise only 3.9 percent of the lawyers  in the United States. They make up four percent of the partners in minority firms and a little over six percent of state court judges. According to John Nussbaumer, while our society is becoming more diverse, the legal system, from lawyers to judges, remains predominantly white.  

History matters too. In the era of Jim Crow, which lasted from 1896, when the U.S. Supreme Court, in Plessy, placed its official stamp of approval on official segregation, until 1954,  in Brown, blacks were openly excluded.

De jure or  official  racism has disappeared  in the U.S. but institutional discrimination remains in place.  Institutional discrimination, in a moral sense, takes place when blacks are excluded by practices like pencil and paper tests which have little relationship to the job they seek to do.

Blacks are systemically excluded from law school by a test called the LSAT, the gate-keeper of law school admissions. Between 2003 and 2008, some 61 percent of African Americans and 46 percent of Mexican American students were rejected by every law school they applied to.  The white shut-out rate is only 34 percent. 

At the same time, there is no evidence that success on the LSAT means better grades and much less better lawyers. Law schools, nonetheless, use these tests as a proxy for merit, which they are not. The  schools are playing a numbers game. The intent may not be to create a slanted playing field that favors whites but that is the result.

Blacks today make up a little over seven percent of the nation’s lawyers, a little more than half of what might be expected if a level playing field really existed. One psychologist theorizes that blacks score lower on the LSAT because of stereotype threat. Decades of  racial propaganda says to blacks that society does not expect them to succeed on tests like this. The fact that they do less well, generally, is a self-fulfilling prophecy.

To overcome the artificial barrier of the LSAT, law school administrators admit that, as Justice Harry Blackmun said in Bakke, “To get past race (de facto segregation) we must consider race. There is no other way.” 

In a case called Grutter, the Supreme Court said that, to achieve “diversity,”  even state schools could take Blackmun’s advice and consider race. Grutter held that, as long as each person was considered as  an individual – that race was only one of many factors considered –the Constitution was satisfied. Following Grutter to the letter, The University of Texas sought to increase diversity. 

In 2008, Abigail Fisher filed a lawsuit to pull up the ladder that affirmative action represents. Hers was what I would call a final assault on affirmative action. Set-asides are long gone. Fisher argued for total color blindness, that the University of Texas’s policy of merely considering race violated her rights under the Equal Protection clause of the Constitution.

Deep down, Fisher’s legal claim rested on a story that, by the University of Texas considering race, she became an innocent white victim who was treated the same way as blacks were during the era of segregation. Justice Clarence Thomas made this argument explicitly.  History suggests, though, that this analogy makes no sense. The purpose of segregation was to promote white supremacy. The purpose of affirmative action is to promote diversity.  Affirmative action is, from an historical point of view, a remedy for the segregation of the past.

But we live in a post-Civil Rights era. The Warren Court is no longer sitting. Conservative presidents like Ronald Reagan and George W. Bush have stacked the deck against Civil Rights.

I thought Abigail Fisher’s “final assault” would have succeeded. It did not. The center held.  On June 24, the Supreme Court sent the case back to the University of Texas to see if race-neutral alternatives might be explored.

If Fisher had succeeded, it would have ushered in an era of basically lily-white law schools – in the word of the Coalition to Defend Affirmative Action, “a new Jim Crow era.”

So, for now, affirmative action in the U.S. gets a reprieve. Of course, the court did not endorse affirmative action but, in these times, in the words of Dr. King, a stalemate can sometimes be a moral victory.

*Donald Jones is professor of Law at the University of Miami.