Why Diversity in Law School Matters

Dean Gardina provides telling examples that demonstrate why the value of diversity in a law school classroom is not an “academic” question.

A student sat in my office relaying an incident that had occurred in class the day before. The students were discussing a case where a mother had been criminally charged for leaving her children alone at night. Some students expressed a lack of empathy—if not disgust—for the mother’s actions. The student was uncomfortable with the tenor of the discussion. “My mom did that,” she said. “She left us alone every night when she went to clean offices. It’s how she paid the bills.” Her simple declaration changed the conversation. Students began talking about prosecutorial discretion and when it should be exercised instead of the mother’s behavior.

This is a small example of why diversity matters. It illustrates how different life stories, different experiences, and yes, even different races and ethnicities, can improve the educational experience for all students. Justice Anthony Kennedy recognized the benefits of diversity when he wrote in Christian Legal Society Chapter v. Martinez that “the process of learning occurs both formally inside the classroom setting and informally outside of it” and that students of different backgrounds often “stimulate one another to reexamine even their most deeply held assumptions about themselves and their world.”

In 2014, I was the co-president of the Society of American Law Teachers (SALT), the largest independent organization of legal academics in the U.S. Central to SALT’s mission is its commitment to “making the legal profession more inclusive and reflective of the great diversity of this nation.” The American Bar Association (ABA) agrees. According to the ABA, “Diversity in the legal profession is necessary to demonstrate that our laws are being made and administered for the benefit of all persons. Because the public’s perception of the legal profession often informs impressions of the legal system, a diverse bar and bench create greater trust in the rule of law.” In this context, diversity is defined broadly to encompass all persons of every background, gender, race, sexual orientation, age, and disability.

During my presidency of SALT, the U.S. Supreme Court accepted certiorari in Fisher v. University of Texas at Austin or what would become known as Fisher II. The question presented was “Does the University of Texas’ use of race as a consideration in the admissions process violate the Equal Protection Clause of the 14^th Amendment.” The SALT submitted an amicus brief in support of the University of Texas. In the brief, we argued that holistic review of applicants was necessary to achieve the broad diversity necessary to meet the university’s educational goals. And to be effective, holistic review must assess each applicant as an individual to the fullest possible context of his or her life, talents, and experiences. Race often provides a critical insight into the lives and experiences of applicants. “Race-blind holistic review is not only a contradiction in terms, it is also infeasible.”

In 2015, the court held, by a slim four-to-three margin, that the university did not violate the 14^th Amendment when it used race as a factor in a holistic admissions review. In 2022, a mere seven years later, a majority of the Supreme Court appears poised to, once again, overturn a long list of precedents supporting the use of race as one factor in a holistic admissions process. In short, an admission process can consider everything but race in its decisions.

Justice Ketanji Brown Jackson exposed the absurdity of that position when she posed a hypothetical situation in which two applicants to the University of North Carolina (UNC); both had families with deep ties to North Carolina—“for generations—since before the Civil War,” she said—but one applicant they would be a fifth-generation graduate from the institution, while the other noted their family members were enslaved and would not have been able to attend the school.

“As I understand your ‘no race-conscious admissions rule,’ these two applicants would have a dramatically different opportunity to tell their family stories and to have them count,” Justice Jackson said. “The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn’t be able to because his story is in many ways bound up with his race and with the race of his ancestors.”

It should be noted that UNC did not admit Black students until after 1950.

The Colleges of Law is diverse in the broadest sense of the word, and our graduates are better because of it. Any would-be-prosecutor sitting in the classroom the day the student announced her mother left them alone as children was exposed to the real-world impact of prosecutorial discretion. Our student demographics reflect the diversity of California. Our students range in age from 22 to 62; there are veterans and students with disabilities; there are students who have recently immigrated to the U.S. and others who have lived in California for generations. Each student brings with them a unique background and set of experiences. Classroom learning is enhanced because of those experiences, and ultimately, our legal system benefits as well.

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