Daniel O. Bernstine, president and Chief Executive Officer of the Law School Admission Council and president emeritus of Portland State University, recently spoke on "The Continuing Need for Affirmative Action" at the Sandra Day O'Connor College of Law.
Bernstine was the keynote in the Diversity Scholar Lecture Series sponsored by the Intergroup Relations Center and the College of Law.
Bernstine's address described the continuing need for affirmative action in law school admissions and the challenges facing those who continue to support the use of affirmative action to achieve meaningful diversity in law school classrooms.
"The U.S. News & World Report rankings have forced law schools to misuse tests," Bernstine said. "They are placing too much weight on the scores, which makes them less diverse because minority students tend not to score as well as other students."
Law schools have ceded the ranking to U.S. News, Bernstine said, and should develop other ranking systems, as business schools have done, to fight that monopoly.
Bernstine said that, while diversity has improved in the legal profession, it still lags behind other professions.
In 2003, U.S. Supreme Court Justice Sandra Day O'Connor's opinion in Grutter v. Bollinger explicitly recognized a current need for affirmative action practices in admission to law schools. She expected that, within 25 years, affirmative action would no longer be necessary, but Bernstine says law schools are far from achieving that goal.
"She was saying that the next generation ought to be able to achieve diversity," Bernstine said. "But that assumes a perfect world and we don't live in a perfect world."
Bernstine said part of the problem is in the pipeline, that minorities have a harder time entering and succeeding in undergraduate programs which means they have a harder time qualifying and succeeding in law school.
Although minorities don't score as well on the Law School Admissions Test, just as they don't score as well on the Scholastic Achievement Test required by most colleges, the test is not the problem, Bernstine said.
"The test accurately predicts what happens in law school," he said. "Or it predicts who will do well in the first year of law school, or those who will become law professors. But it doesn't predict who will become a successful lawyer."
Bernstine said the problem is exacerbated by the move to a global market.
"Employers are not just hiring the best American employees, they're hiring the best global employees," he said. "That makes it more difficult to achieve equality and redress some of the issues still there as a result of a history of discrimination."
His message to law schools: Don't worry as much about the rankings. Instead, look at applications holistically and remember the mission is to train lawyers, not only law professors.
Bernstine served as president of Portland State University in Oregon from 1997 to 2007, and was acknowledged as a highly effective president who helped build the university into the largest in the state, increasing its impact in Oregon, the nation and the world. Before moving to Portland State, Bernstine served for seven years as dean and professor of law at the University of Wisconsin Law School, where he was renowned for his administrative ability, dedication to students, and extraordinary faculty recruitment. He also has been interim dean and professor of law at Howard University School of Law in Washington, D.C., and general counsel for Howard University and Howard University Hospital.
Bernstine began his legal career at the U.S. Department of Labor. An expert on courts and higher education, he is the author of three books and numerous scholarly articles. He holds a bachelor's degree in political science from the University of California at Berkeley, a J.D. from Northwestern University School of Law in Chicago and an LL.M. from the University of Wisconsin Law School, where he did research in civil procedure and jurisdiction of courts.
The Law School Admission Council is a non-profit corporation whose members are more than 200 law schools in the United States and Canada. All law schools approved by the American Bar Association are Council members. Fifteen Canadian law schools recognized by a provincial or territorial law society or government agency are also included in the voting membership of the Council.
Headquartered in Newtown, Pa., the Council is best known for administering the Law School Admission Test. An average of 140,000 prospective law students take this test each year.