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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.

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For Lawyers, Green's the Color that Matters

After publication of my article in the Daily Journal, "Race Matters at UCLA" (Jan. 10), six letters in opposition were published (Jan. 28, Feb. 17). Because of limited space, I only can make a few points in rebuttal.

Three of the letters discussed UCLA School of Law's most recent bar passage rate of 92.1 percent for graduates taking the exam for the first time. My February 18, 1995, letter to Dean Rappaport requesting attrition and bar passage rates for UCLA has not yet resulted in production of the information, although a letter from Dean Susan Prager says she is inquiring into the existence of the records. However, I did learn from the American Bar Association that for the year 1993-'94, for all students in ABA-accredited law schools, the minority attrition rate (for academic reasons) was 2.9 percent versus 0.9 percent for non-minorities. (The ABA included Asians among the minorities.)

I also learned from the California State Bar that the July 1994 bar passage rate for first time takers from all California ABA approved law schools was 90.8 percent for whites, 83.1 percent for Asians, 74.9 percent for Hispanic and 67.5 percent for blacks. Therefore, part of the cost of racial preferences is the admission of applicants who fail at the expense of rejected applicants who probably would have succeeded.

Five of the letters expressed the view that people get better representation from lawyers of their own race. Under this view, a white employer could refuse to hire minority lawyers on the basis that because of race, the minority lawyers cannot represent the firm's white clients as well as white lawyers. In contrast, I am in favor of prosecuting such an employer.

Moreover, black, Latino and Native American attorneys are going to work on cases that have nothing to do with race or minority clients. Whatever special abilities they may have for handling race-related cases will not help them when race is not material to the case. Assuming, as all law schools do, that undergraduate grade-point averages and LSAT scores are important indicators of intellectual ability, if you know nothing else about two lawyers competing to represent you in a case where race is immaterial, except that one was probably admitted under a program where intellectual standards were reduced and the other was admitted under more rigorous standards, whom do you prefer to represent you?

Two of the letters spoke about under-service of the minority community if too few minority lawyers were produced. As long as personal injury, civil rights and other cases can be taken on contingency and the cases are meritorious, there will not be a shortage of white lawyers to take the cases. Additionally, every black, Latino and Native American client who can pay an hourly fee for legal services will find a lawyer, even if all the lawyers are white. The operative color for most lawyers, of all races, is not black, brown, red or yellow -- it is green. For those without money, charitable legal services are available for people of all races.

One letter said that ideas about fear and dislike of the police "would not have come about if it were not for the minority attorneys, law students and advocates who voiced the experiences of our community." Long before there were racial preferences for minorities, at a time when there were racial preferences for whites, many white attorneys and law students fought against racially bigoted police practices. None of these whites had to be a direct victim of these policies in order to recognize them as evil and understand their effect on the direct victims.

The same letter said that Asian Americans are admitted "just as other African Americans, Latinos and Native Americans are." However, as I reported, 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, 77 of 295 of blacks, Latinos and Native Americans were offered admission while none of 201 Asians were offered admission. Therefore, which racial box on UCLA's application should be checked in order to most enhance the chances of admission, the black, Latino, Native American or Asian box?

Finally, several of the letters state that the quality of an applicant can be measured by factors additional to the GPA and LSAT score. One letter mentioned ethical behavior as an example. Additional factors like perseverance, moral courage, intellectual creativity unmeasured by GPA and LSAT should all be utilized as long as they are given appropriate relative weight. However, as demonstrated in my article, and ignored by my critics, the data proves that UCLA tends to find these additional factors in relatively low-scoring blacks, Latinos and Native Americans, not in similarly scoring whites and Asians. The argument that race is only one of several additional factors rings hollow when some individuals, because of their race, don't get the benefit of being evaluated by those additional factors.

Los Angeles Daily Journal, March 10, 1995, p. 7, as modified.  The Los Angeles Daily Journal is the city's primary newspaper for the legal community.


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