Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation. A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.
For many years controversy has raged over whether employers, schools and other institutions give preference to lesser qualified individuals on the basis of race. Because these institutions fail to release meaningful statistics about their practices, they invite speculation that there is something to hide.
In late 1993 I saw a document displayed in the reception area of the admissions office at the University of California, Los Angeles, School of Law, that said race was a factor in some of its admission decisions. I wondered to what extent race was a factor, so I wrote a letter to the dean of admissions, Michael Rappaport, asking for the race, grade point averages, Law School Admission Test scores and admission decisions for the applicants to the 1993 entering class.
My letter stated that I did not want names or any other information that would violate a particular identifiable individual's privacy. I noted my right to the information under California's Public Records Act (Cal.Gov.Code § 6250), which is similar to the federal Freedom of Information Act. Dean Rappaport responded with a letter stating that the information was "not available." I wrote again, saying, in part, "I do not know what you mean by this. Did the records ever exist? If they existed, have they been lost or destroyed? Do they exist, but are 'unavailable' because you simply do not want to give them to me?" My letter closed with a citation to legal authority establishing my right to a statement under penalty of perjury explaining why the documents were "unavailable."
Since I did not receive a further response, I filed a lawsuit against the Regents of the University of California and Michael Rappaport for an injunction compelling them to give me the documents. Before the action went to trial the defendants gave me the documents that were supposedly "not available."
These documents reveal that in 1993, over 5,200 applicants were competing for 350 spaces in the fall entering class at the UCLA School of Law. Upon receiving UCLA's admission decisions, at least 52 of these applicants may have been very surprised.
Thirty of these 52 were rejected despite their GPA's of 3.5 and higher and LSAT scores above the 92nd percentile. Three of these 30 identified themselves as Asian; the other 27 identified themselves as white or declined to state their race (W/DS).
In contrast, 22 of these 52 were offered admission although 13 who identified themselves as black had GPA's of less than 3 and LSAT scores below the 80th percentile; six who identified themselves as Latino had GPA's of less than 2.94 and LSAT scores below the 71st percentile; and three who identified themselves as Native American Indian had GPA's of less than 3 and LSAT scores below the 71st percentile.
No offer of admission was made to any W/DS applicant having a GPA less than 3 and an LSAT score below the 80th percentile. This was despite the fact that 10 of the rejected W/DS applicants in this lower range had GPA's equal to or above 2.9 and LSAT scores equal to or above the 75th percentile -- a feat matched by only one of the 22 who were offered admission.
UCLA did more than simply reject 30 highly academically qualified W/DS and Asian applicants while offering admission to 22 blacks, Latinos and Native Americans with far lower academic qualifications. It also treated academically average individuals in a manner that suggests that race was a large factor in the admissions decision.
Among applicants with GPA's ranging from below 3.3 down to 2, and LSAT percentile scores ranging from below the 84th down to the 50th, 42 of 122 blacks, 32 of 155 Latinos and three of 18 Native Americans were offered admission, while none of the 201 Asian and only one of the 453 W/DS applicants in this range was offered admission. This was despite the fact that among those in the upper level of this range, whose GPA's ranged from below 3.3 down to only 3, and whose LSAT percentile scores ranged from below the 84th down to only the 75th, there were 127 W/DS and 35 Asian applicants.
It might be argued that race was not a significant factor in the admission offers to these 77 black, Latino and Native American applicants with average academic qualifications because they may have had other evidence of personal qualities warranting their admission. But that argument implies that only one of 654 W/DS and Asian applicants in this range had such evidence -- a dubious proposition.
There were 2,833 W/DS applicants. The Asian applicants totaled 1,051, while 487 were black, 563 were Latino and 73 were Native American. The rest were identified as Other (Non-White).
In summary, the documents show that some W/DS and Asian applicants with high academic qualifications were rejected while some blacks, Latinos and Native Americans with far less academic qualifications were offered admission. In contrast, W/DS and Asian applicants in this same lower range were not offered admission. The documents also show that average academic qualifications still allowed for the admission of blacks, Latinos and Native Americans, but virtually eliminated the possibility of admission for W/DS and Asian applicants.
UCLA School of Law publicly acknowledges that race is a factor in some of its admission decisions. The recently obtained documents help reveal the apparently large extent to which race, rather than individual academic merit, determines who can attend one of the nation's leading law schools. The documents also reveal that these institutions have something to hide.
A Daily Journal article on UCLA's admissions policy ("Class of '97 at UCLA Law Is Most Diverse," Dec. 19) said that according to Dean Susan Prager, the law school faculty had concluded that "UCLA had to make a contribution to bring minorities into the legal profession" and that the school "made a commitment to recruiting and retaining students of diverse backgrounds."
If the law school's decision that it "had" to do something and that it made a "commitment" to do something, is not the setting of a goal or target, then I don't know what is. Nevertheless, Dean of Admissions Rappaport is quoted as saying that the school has "no goals, targets or quotas." Perhaps Rappaport is unfamiliar with what the law school "had" to do and made a "commitment" to do, as revealed by Prager.
In the article, Rappaport, responding to my criticism, disputed the notion that minorities were given preferential status. But he admitted that race is a factor. This is nonsensical. If race is a factor in admissions, then somebody is given a racial preference and somebody else is given a racial disability. The documents I obtained indicate that in some cases, blacks, Latinos and Native Americans are being preferred and whites and Asians are being disabled -- all because of their race.
As evidence of UCLA's successful record, Rappaport cites the law school's most recent bar passage rate of 92.1 percent for graduates taking the exam for the first time. However, this statistic only shows the passage rate for those first-timers who took the exam. The statistic does not reflect students who dropped out or otherwise failed to get that far. I wonder what percentage of UCLA students whose race was an admission factor never got to the point of taking the exam, as compared with those students admitted without race being a factor?
Moreover, there are a few hundred thousand lawyers in this country. All of them passed a bar exam. However, as every practicing lawyer knows, some are better lawyers than others. This has nothing to do with race. Passing the bar exam merely means that a person has the minimum level of competency necessary to practice law. It does not indicate whether a person's level of practice will rise above that of the thousands of mediocre lawyers.
Because of the applicant pool they attract, some law schools don't have a realistic opportunity to significantly add to the number of lawyers who are better than mediocre. However, UCLA's applicant pool gives it an opportunity to produce lawyers who will not merely pass the bar exam, but become some of the nation's best lawyers. To the extent that race is an admissions factor, UCLA squanders that opportunity and loses its greatness.
If academic qualifications are the chief indicators of an individual's ability to study for and pass the bar exam, then logic dictates that the bar passage rate for the Class of 1996 probably will be less than it would have been had UCLA not rejected the 30 applicants with 3.5+ GPA's and 92+ percentile LSAT's, and offered admission to the 13 applicants with GPA's below 3 and LSAT percentiles below 80, the 6 applicants with GPA's below 2.94 and LSAT percentiles below 71, and the 3 applicants with GPA's below 3 and LSAT percentiles below 71.
The Daily Journal quotes Rappaport as saying that UCLA is "producing outstanding students, no matter what ethnicity." However, I have not heard Rappaport say that UCLA is producing the best students it can. Those who wish to lower standards for some individuals almost never talk about the concept of "the best."
Prager attributes the increased numbers of minority students to the efforts of the law school's faculty, beginning 25 years ago. But I have not heard her attribute the increased numbers of minority students to the efforts of the minority students themselves. Are black, Latino and Native American students more dependent on faculty members who make race an admissions factor or on their own ability to read, comprehend, critically analyze, logically think, write, and do the other things that lawyers must do?
Many of the lawyers who graduate from the law school will do work for the citizens of California. What do these citizens want UCLA to do -- produce the best possible lawyers or produce less than the best possible? I wonder how many Californians of any race, whose preservation of life or property is dependent on the skills of their lawyer, will thank UCLA for making available to them a lawyer who is less than the best possible?
The issue is whether there is a justification for UCLA to produce lawyers who are less than the best possible. Prager says students and faculty appreciate "an environment where there is a diversity of ideas and perspectives." What idea or perspective material to legal education will be neglected if there is no black, Latino or Native American student in UCLA's law school?
I am white, yet I believe that the 1964, '65 and '68 Civil Rights Acts are the best pieces of legislation passed in this century. I believe that ancestors of today's Native Americans were victims of mass murder. I am unaware of any idea or perspective that a black, Latino or Native American might have that is impossible for a white or Asian person to have. I am not aware of any evidence linking race with moral perspective or ideology. Nevertheless, apparently Rappaport, Prager and a majority of the UCLA law school faculty believe that simply having more nonwhite and non-Asian lawyers is sufficient justification for UCLA to produce lawyers who are less than the best possible. I wonder if the voters of California would agree.
Some black, Latino and Native American UCLA law students may have far better legal skills and may make far better lawyers than some white and Asian students. These minority students might have been offered admission even if their race was not a factor. However, thanks to UCLA's admissions policy, such black, Latino and Native American students now have suspect credentials. UCLA's policy has succeeded in stigmatizing, to a degree the Klu Klux Klan only could dream about, those black, Latino and Native Americans who could have gained admission without a racial preference.
Are there any black, Latino or Native American UCLA law students who would like to have won their admission strictly on the basis of their individual abilities, without regard to their race? Are there any who resent being stigmatized by UCLA as individuals who were not good enough for admission without consideration of their race and the race of their competitors? Are there any who wish to be judged on the content of their character rather than on the color of their skin?
Los Angeles Daily News, 12/11/94, shortened version, as modified.
Los Angeles Daily Journal, 1/10/95, p. 6, full version, as modified. The Los Angeles Daily Journal is the city's primary newspaper for the legal community.
Letter from UCLA School of Law's Dean of Admissions, Michael Rappaport, to Allan J. Favish, saying that the requested information is "not available." (48 KB)