Law School Administrators Huddle to Circumvent Affirmative Action Ban

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.”

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

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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?”

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