Yale Law students reflect on race-conscious admissions
Alums and professors at the Law School, which produced two of the court’s sitting justices of color, weighed in on the impending ruling’s widespread impacts.
Tim Tai, Photography Editor
Two of the nation’s three sitting Supreme Court justices of color graduated from Yale Law School.
Today, Clarence Thomas LAW ’74 and Sonia Sotomayor LAW ’79 sit on opposite sides of a pivotal legal issue facing the court: race-conscious college admissions. The News spoke with students, law professors and alumni at Yale Law School to gauge community opinions on the court’s potential overturning of affirmative action and what it will mean for the school.
“Graduating from Yale Law School (and, thus benefiting from affirmative action) made all the difference in the world for my career and my life,” wrote Kevin Brown LAW ’82, a professor at Indiana University McKinney School of Law. “I have been a law professor for nearly 36 years. Simply put, that would not have been possible if I had not graduated from Yale Law School.”
The Court heard oral arguments for two cases brought forth by Students for Fair Admissions against Harvard and the University of North Carolina-Chapel Hill’s consideration of race in admissions on Oct. 31.
SFFA alleges that UNC’s policy discriminates against white and Asian students and that Harvard discriminates against Asian students.
“I think the allegation that have been thrown around in this case, that Harvard engages in intentional discrimination of any sort against Asian Americans or otherwise is completely unfounded and despicable,” said alum Seth P. Waxman LAW ’97, who is representing Harvard in this lawsuit, for an interview with The Harvard Crimson.
This fall, Yale Law welcomed the most diverse 1L class in its history. 55 percent are students of color and about 16 percent are first-generation college students. Legal commentator David Lat LAW ’99 said admissions at YLS “could change significantly” in the wake of a Supreme Court ruling against race-conscious admissions.
Expanding diversity has been a cornerstone of Heather Gerken’s deanship. In 2016, a diversity and inclusion committee produced a report with over 60 proposals about making Yale Law School a more inclusive environment.
“When I began my Deanship in the summer of 2017, the Committee’s report was an important touchstone as I shaped my administrative priorities,” Gerken wrote in a 2021 statement. “I am proud of the time, energy, and resources that so many members of this community devoted to ensure that many of these goals are being accomplished.”
A.J. Hudson LAW ’25 described student positions on affirmative action as overwhelmingly supportive, with the exception of a “small minority of ultra-conservative students in the Federalist Society.” Robert Capodilupo LAW ’23, President of the Yale Law School Federalist Society, declined to comment.
Last week, the News reported that SFFA shares donors with the Federalist Society, a conservative-leaning group of lawyers that began at Yale. All six of the Court’s conservative-leaning justices, including Thomas, have ties to the Society as either past or current members.
Steven Calabresi, visiting professor of law and co-founder of the Federalist Society, stressed in an interview for that story that the Society itself does not have a position on affirmative action, nor does it generally take a stance on pending legislation or litigation.
In a letter to the editor earlier this week, Calabresi reiterated that the Society does not have an organizational stance on affirmative action, but also noted that he personally supports race-conscious college admissions and hiring practices.
In a statement posted on Window, a student forum used as a replacement for the YLS student listserv that was disbanded over the summer, the Yale Law School Asian Pacific American Law Students Association wrote that “SFFA does not have the best interest of the Asian American and Pacific Islander (AAPI) community at heart.” The statement was approved by a supermajority of the APALSA executive board before being sent out to students.
The statement characterizes the legal argument presented by SFFA as a “means-end mismatch”, which uses potential discrimination faced by AAPI students as a way to “denigrate” BIPOC communities. The post goes on to suggest that potential discrimination against AAPI students should be used to promote better race-conscious admissions policies as opposed to the elimination of all affirmative action.
“SFFA’s focus on anti-Asian racism in college admissions is part of a long history of white supremacists weaponizing the “model minority myth,” the statement reads. “We unequivocally condemn this move, and we stand in solidarity… with BIPOC communities across the country.”
The letter not only condemns the evocation of anti-AAPI bias as a defense for anti-affirmative-action positions, it also emphatically states its support for affirmative action as a practice that remedies existing inequity.
APALSA also affirmed their solidarity with various YLS chapters of associations created for BIPOC students such as the Yale Black Student Association, Latinx Law Student Association and the Native American Law Students’ Association.
“Affirmative action remains essential for repairing past – and persisting – harms, as well as for generating diverse communities that enhance learning opportunities,” the letter reads.
Hudson said he believed that the majority of students recognize the necessity of affirmative action and that “most also know this is just further craven chipping away by the Republicans at the wins of the civil rights movement.”
“Yale Law School, much like many of our peer institutions, is not as diverse as we pretend it is, and that is to a great extent due to our unequal society,” Hudson wrote. “We are one of the most diverse law schools in the nation, undoubtedly, and still, we do not reflect this nation.”
Hudson attributes this perceived disparity between YLS’ student body and the nation at large to how the school defines some of its metrics around diversity. According to Hudson, Yale Law is overwhelmingly “still made up of the elite.”
In fact, a need for continued socio-economic diversity is a rare point of agreement for many in the respective pro and anti race-conscious admissions camps.
Lat has written at length about his opposition to affirmative action in his blog, “Original Jurisdiction.” He explained that many who oppose race-conscious admissions still support preference for socio-economically disadvantaged students.
Lat commended efforts within YLS administration to expand socio-economic diversity in past years, specifically pointing to the Hurst Horizon Scholarship unveiled last Spring. By Lat’s estimation, Yale Law is home to more first-generation students than it was when Lat was a law student. Lat said that he personally believes that YLS should weigh socio-economic diversity more heavily than racial diversity in their admissions process.
In an email to the News, law professor Vicki Schultz highlighted the “diametrically different” approaches that have historically been employed in higher education selection processes as opposed to that used by employers.
Schultz, who teaches courses such as Employment Discrimination Law and Workplace Theory and Policy, explained that anti-discrimination litigation has forced employers away from the “non-transparent, personalistic selection processes” that many university admissions officers typically use.
The professor referred to these different attitudes as “a remedial approach” in the employment context and “a diversity approach” in the higher education context.
“The oral arguments revealed the gig may be up,” Schultz wrote. “Perhaps, as Justice Jackson’s questions suggested, there is no way NOT to discriminate without permitting race to be considered for applicants whose people have been excluded historically for racial reasons. Thus, the Justices probed, what does it mean to actually consider “race”?
SFFA lawyers have posited that “an [institution] that treats people fairly will achieve diversity.” Schultz explained however, that in employment discrimination cases have not historically followed this assumption, opting for heavily reliance on numbers.
The number of minorities hired by a given company, Schultz said, is typically compared to benchmark figures for the number of minorities identified as qualified and available for the job in the relevant labor market.
In instances of significant discrepancies between hiring numbers and benchmarks, employers are typically presumed to have been discriminatory. Universities, however, do not use numbers, arguing that they do not use racial quotas or track numbers but instead “look at each individual applicant.”
“The Court’s rigid rejection of numbers in diversity cases has left the defenders of affirmative action in higher education without the tools the remedial approach gave lawyers in the employment context,” Schultz wrote. “Perhaps it is time for the defenders of affirmative action in the higher educational context to seek a rapprochement between the remedial and diversity approaches.”
While the YLS community boasts some of affirmative action’s most staunch supporters, it is also the alma mater of many of its most outspoken critics. Thomas ties his opposition to race-conscious admissions to his experience as a student at Yale Law.
“On the surface, Yale Law School was everything I’d hoped it would be,” Thomas wrote in his 2007 memoir. “The students were smart, the environment relaxed but intellectually exciting, yet I still felt out of place. I was among the elite, and I knew that no amount of striving would make me one of them.”
YLS alum David E. Bernstein LAW ’91, Professor at Antonin Scalia Law School at George Mason University, submitted an amicus brief in favor of the petitioner (SFFA). In his brief, he argued that the racial classifications used by Harvard in its admissions process are “imprecise, over and underinclusive, and are not narrowly tailored to achieve educationally beneficial diversity.”
Kevin Brown, who graduated from YLS eight years after Thomas, reflects differently on the experience of attending the elite institution as one of about 10 Black students at the time. Brown, who spent his first year of law school at Indiana University before transferring to Yale, explained that YLS’ use of affirmative action made all the difference in setting it culturally apart from University of Indiana, which did not consider race in admissions.
After attending YLS, Brown spent more than four years working at “the most prestigious law firm in the State of Indiana,” as the second attorney of color to be hired at any significant law firm in Indiana’s state history. In 1989, he went on to be one of the participants in the first Critical Race Theory workshops, “[launching] a different way to look at US law and legal institutions.”
“The 2 books, 90 other published pieces and over 350 speaking appearances that I have done over the past 36 years would not have happened [without affirmative action],” Brown wrote to the News. “I also would not have had the opportunity to influence the education of some 3,000 law students.”
Sotomayor, who attributes her admission to YLS in part to her status as “a perfect affirmative action baby,” also boasts keenly different experiences at the Law School to her SCOTUS colleague Justice Thomas.
In her 2013 memoir, “My Beloved World,” she reflected positively on her time as a student, remarking on the brilliance of her fellow classmates and specifically of the camaraderie among female students, which she described as “a sisterhood.”
“The intense pressure we all felt became a bonding experience, with competitive animus channeled outside the group while within it we made some friends for life.”
Law School Dean Heather Gerken and other members of the YLS administration declined to comment for this article.
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