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Top law school administrators are strategizing ways to navigate the aftermath of the Supreme Court’s prohibition on race-based admissions practices. During a legal conference hosted by the American Association of Law Schools in July, UC Berkeley Law School dean Erwin Chemerinsky and University of Michigan general counsel Timothy Lynch offered guidance on employing race-neutral methods to achieve diversity amidst the affirmative action ban.
Chemerinsky and Lynch advised attendees to avoid creating a “record” of “discriminatory intent” while implementing alternative strategies. Lynch emphasized the importance of maintaining plausible deniability and cautioned against faculty colleagues inadvertently undermining the race-neutral stance. Lynch acknowledged that plaintiffs often search for indications of “discriminatory intent” in legal actions related to race-conscious policies.
During the conference, Lynch made remarks that socioeconomic preferences would not suffice as substitutes for race-based preferences, hinting that these preferences might disproportionately benefit white and Asian students. Lawyers reviewing the conference footage suggested that such statements might contribute to the very “record” that Lynch warned against, potentially exposing educational institutions to legal liabilities.
See also: Shift in Admissions Practices Triggered by Affirmative Action Ruling
Legal experts expressed concern that Lynch’s statements, particularly about socioeconomic preferences, could be used as evidence in future lawsuits related to discrimination, undermining the sincerity of institutions’ non-discriminatory justifications. Gail Heriot, a law professor, and Dan Morenoff, from the American Civil Rights Project, noted that Lynch’s remarks could potentially weaken schools’ litigation positions.
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Chemerinsky moderated the conference and clarified that the exchanges were taken out of context. He stressed that the conference assumed schools would adhere to the Supreme Court’s ruling in good faith. Chemerinsky also addressed a video from June in which he discussed Berkeley’s approach to circumventing California’s ban on affirmative action in faculty hiring.
The conference shed light on universities’ efforts to adapt to the affirmative action ban. Schools have introduced changes such as additional essay questions focusing on “identity,” alterations to admissions criteria, and the waiver of standardized tests. These adaptations have prompted concerns among critics that institutions might have ulterior motives.
Legal observers suggested that these changes could come under scrutiny in legal challenges, as courts have previously disallowed facially neutral requirements that indirectly discriminate against specific groups. The principles applied in such cases could extend to university admissions practices as well.
While the June affirmative action ruling did not specifically address certain practices, the underlying principles of barring discriminatory intentions could be invoked in lawsuits. Lynch’s statements, especially his suggestions about selecting admissions criteria based on their anticipated racial impact, raised concerns among legal experts regarding potential violations of the law.
The University of Michigan expressed its support for Lynch’s comments, emphasizing his advocacy for legal compliance across the institution. However, Lynch’s remark at the conference that he was “not providing legal advice” might offer some protection against malpractice claims but may not prevent his statements from being used against the university in legal proceedings.
The conference discussions revealed various viewpoints among administrators. Some, like Chemerinsky, appeared cautiously optimistic about the use of race-neutral alternatives, as long as they were meticulously executed. Others, such as Mark Alexander, president of the American Association of Law Schools and faculty chairman of Villanova Law, explored potential religious exemptions as fallback options.
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