Eboni Nelson, Ronald Pitner & Carla Pratt on "Race-Neutral Alternatives in Law School"...

ASSESSING THE VIABILITY OF RACE-NEUTRAL ALTERNATIVES IN LAW SCHOOL, Eboni S. Nelson, Ronald Pitner, Carla D. Pratt, 102 Iowa Law Review 2187 (July 2017)

"Over the past several years, law schools have experienced many challenges stemming from declines in student enrollment due to a shrinking applicant pool. The declining number of applicants is particularly problematic for law schools seeking to educate students in racially diverse learning environments. In light of recent challenges to the constitutionality of race-conscious affirmative action and the likelihood that President Donald Trump will make several appointments to the Supreme Court-- thereby shifting its balance toward the ideology of colorblindness--it is imperative to engage in a project that examines the relationship between racial categories and race-neutral identity factors in law-school admissions. Understanding the relationship between racial groups and certain race-neutral identity factors will help law schools comply with Fisher I's mandate that universities consider race-neutral means for achieving diversity before using race as a factor in their admissions processes. Understanding this relationship will also be useful for higher-education institutions seeking to enroll racially diverse student bodies in jurisdictions that do not permit the consideration of race in admissions, and may become necessary for all institutions if the Court overrules the Fisher and Grutter decisions. Moreover, the data from this study illuminates persisting structural inequalities for certain racial minority groups and rebuts the assumption that those privileged enough to make it to law school are insulated from the structural inequalities that race-conscious affirmative action historically sought to address.

This empirical study surveyed first-year law students at public American Bar Association approved law schools and asked them about race-neutral aspects of their identity, such as family background and educational-institution characteristics, to determine whether there is a relationship between their race and certain socioeconomic identity factors. The findings will enhance law schools' understanding of race-neutral admissions factors that may contribute to their abilities to assemble racially diverse student bodies, and will give them tools to experiment with trying to yield racially diverse classes without asking applicants about their race. Possessing such knowledge will greatly aid law schools as they develop and implement admissions policies in their efforts to provide greater access to students from backgrounds underrepresented in the legal profession while also fulfilling their commitment to educate all law students in a diverse learning environment."


Associate Dean, Carla Pratt - Penn State's Dickinson Law School

Associate Dean, Carla Pratt - Penn State's Dickinson Law School

Nelson, Pitner & Pratt survey the degree which socio-economic factors mimic race, the extent to which they are not in fact race-neutral.  To the extent certain factors can serve as a proxy for race, colleges and universities may, under Fisher I, use them to create constitutionally permissible affirmative action program, admissions committees can use them to either enhance or avoid racial diversity on campus.

Affirmative Action in college admissions and other issues relating to educational equity represent asymmetrically imperfect market information available to Black people and people of color.  While the courts focus on individual rights, the question with regard to closing the racial wealth gap, with regard to whether the market is meritocratic, whether the free market is freer for white people than for people of color is whether institutions that support the market (academia) provide less information to Black folks in the aggregate than to Whites.

Additionally, without human and social capital represented by knowledge, degrees and associations that attach to 'elite' college attendance, educational inequities also constitute asymmetrically imperfect market competition.

Defenses of the status quo relying on the alleged incapacity of Black people to compete within or adapt to elite institutions also represent asymmetrically imperfect market imperfection, in that it reinforces the myth of black inferiority, and therefore skews negatively market information about black people (in addition to that which is available to Black people).

- Andre L. Smith