New Issue Brief: Affirmative "Re-action"

Bar associations have largely ignored the Supreme Court’s ruling in SFFA to omit affirmative action in university admissions decisions

NEW YORK, NY — Last year, after the Supreme Court rendered affirmative action unconstitutional in the context of university admissions, many commentators suspected institutions of higher education would find workarounds. In a new Manhattan Institute issue brief, Paulson Policy Analyst Renu Mukherjee has found this suspicion to be true. Since the Students for Fair Admissions (SFFA) decision in June, bar associations across the nation have issued guidance on how law schools, law firms, and lower courts should respond to the justices’ ruling. Mukherjee's review of the guidance from the American Bar Association, New York State Bar Association, and New York City Bar Association finds they are still encouraging law schools and law firms to ignore the Court’s holding.  

Bar associations are advising universities to continue granting admissions preferences to black and Hispanic applicants using methods that are race-neutral in theory but race-conscious in practice. These include having applicants write about their race or ethnicity in application essays and eliminating standardized testing requirements. Meanwhile, law firms are advised to simply continue their use of affirmative action; the bar associations suggest that because SFFA considered this policy only within the context of university admissions, the logic behind the decision is inapplicable to employment.  

On the upside, Mukherjee finds that bar associations are also advising law schools and law firms to pursue pipeline programs, initiatives for low- and middle-income high school and college students. Many of these programs identify candidates based on income without regard for racial or ethnic background, and grant free academic tutoring, standardized test preparation, mentoring, and other resources to help them enter the legal profession. Given that pipeline programs are in line with the Court’s holdings and teach students to take responsibility for their futures in a way that affirmative action does not, Mukherjee suggests that law schools and law firms should disregard racial preferences and focus on pipeline programs instead.

Click here to view the full issue brief.