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ELITISM IN LEGAL EDUCATION:
THE MICHIGAN LAW SCHOOL AFFIRMATIVE ACTION DECISION MISSES THE POINT

Dean Lawrence R. Velvel
Massachusetts School of Law
JURIST Guest Columnist

The recent University of Michigan Law School case implicates certain matters that respectively are unfortunate and/or are almost certain to be issues of future contention in education and law. These matters were presented to the Supreme Court by the Massachusetts School of Law, a small reformist institution in northern Massachusetts.

MSL filed an amicus brief, taking neither side, which made a point that we believe no other brief made. MSL痴 brief explained that it is the desire to be elite that causes law schools to have to resort to affirmative action in order to enroll sufficient minority students. That is, desiring to be elite in a profession that is riddled with elitist thinking to a degree unequaled elsewhere, law schools rely largely or predominantly on the LSAT in their admissions processes. They demand high LSAT scores in order to be 兎lite. They do this even though they know that minorities have traditionally scored badly on the LSAT and will not be admitted in sufficient numbers when the LSAT is the major determinant of admission. Then, to overcome this elitist predilection which is deliberately built into their admissions processes, law schools engage in affirmative action in order to enroll minority people. Thus, the law schools knowingly discriminate against blacks initially, and then try to mitigate this by discriminating in favor of blacks. They thus discriminate racially twice, instead of adopting a non-LSAT based admissions process that would discriminate against nobody, but would instead consider each person individually and would result in ample admissions of minorities, as at MSL.

That law schools are engaged in an elitist, LSAT-based game which causes them to have to use affirmative action was a central, oft repeated theme of Justice Thomas dissent (which repeatedly used the word elite), a central point that Justice Scalia found 菟articularly unanswerable. (Scalia himself had prominently brought up the matter at the oral argument.) Yet, although the matter was called to the attention of Supreme Court reporters prior to the oral hearing, as far as we know only one reporter, Tony Mauro, saw fit to write about this before the argument or decision, and, with one minimal exception, none apparently has seen fit to write about it afterwards. For the press to ignore a matter so crucial that it became a central point of a major dissent seems to us typically irresponsible. We understand that before the argument and decision the point was being presented only by a small law school rather than by a school like Harvard, thus calling into play the press own (and sometimes even unconscious) predilections against the non-elite. We further realize that Justices Thomas and Scalia are disfavored by the press (and, in typical elitist fashion, did not mention the brief of the non-elite MSL even while they adopted its argument). Nevertheless, it is irresponsible for the press to have ignored and to continue to ignore the point raised by MSL.

We note that the deciding opinion of Justice O辰onnor chose to virtually ignore this central point of Justice Thomas opinion. In this regard, O辰onnor said only that requiring the use of a different system than the law schools twice racially discriminatory method 努ould require a dramatic sacrifice of diversity, the academic quality of all students, or both. That diversity would be sacrificed by a non-LSAT-based system is a palpable untruth (as evidenced by MSL痴 own experience). To claim that the academic quality of students would diminish is equally untrue, because it is a backhanded way of saying that very high LSAT scores relied on by Michigan and other law schools are the measure of academic quality, when this is widely known to be untrue, when Michigan itself said it is untrue, when the LSAT痴 sponsor (the LSAC) is working on new methods of testing because even the sponsor knows it is untrue, and when the LSAT is nothing but the successor to discriminatory, now discredited IQ tests. The incontestable fact, as Justice Thomas made clear, is that while a disfavored system like the anti-women discriminatory view of a southern military institution -- the Virginia Military Institute -- was overridden by the Supreme Court, the same Justices will allow a twice-discriminatory system 努here the status quo being defended is that of the elite establishment. Since a twice-racially-discriminatory system is upheld by Justices from elitist backgrounds when it is the view of their own highly elitist legal profession, while the discriminatory views of others (including even the University of Michigan痴 undergraduate program) are struck down, it must be evident that Justices are engaged in special pleading for their own profession.

The matters of elitism raised by Justice Thomas, joined by Justice Scalia, will not go away any time soon. Conservatives are outraged at the Supreme Court痴 rulings and will be pressing for the appointment of an anti-affirmative action Justice at the first opportunity. Law schools themselves are beginning to realize that the elitist, LSAT-based admissions system which creates the need for affirmative action is a bad system. And the LSAC itself is working on a new test to try to replace the LSAT. Moreover, it is a shame that the only Justices to tell the truth about what is occurring are two who, regardless of the race of one of them, are widely regarded as no friends of minorities or of civil rights. The remaining Justices seem to be too much a part of their profession痴 elitist system (from which Thomas and Scalia also sprang but which they are here assailing) to take action against it. But there will come a day when something will have to be done. Otherwise, even affirmative action will not lead to sufficient minority lawyers. (Nor, for that matter, will it lead to sufficient lawyers from working class backgrounds or from major groups of immigrants.)

It is awful that the press which covers the Supreme Court, and which seems to have bought into the elitist system to the point where it will not discuss the pervasive elitism which caused the problem, and instead writes articles that present abstract 田onstitutional-lawyer-speak about 田ompelling state interests and 渡arrowly tailored laws that is meaningless to the every-day person, as well as alleged but in practical reality meaningless differences between the University痴 and the Law School痴 methods of affirmative action, will not write about the elitism which has caused the problem in the first place and which must be abolished if the problem is truly to be cured.


Lawrence R. Velvel is Dean of the Massachusetts School of Law, and a graduate of the University of Michigan Law School.

June 27, 2003

GUEST COLUMNIST

JURIST Guest Columnist Lawrence R. Velvel is Dean and co-founder of the Massachusetts School of Law. He is a graduate of the University of Michigan Law School.