Ken Davis, Dean of University
of Wisconsin Law School, Statement to the State Bar Board of Governors
January 22, 2003
"The
University of Wisconsin Law School has no plans to submit an amicus brief
in Grutter v. Bollinger, et al. for two reasons. First, it is my
understanding that only the Board of Regents can speak for the U.W. Law
School in a situation like this. Though I think it is fair to say that
an overwhelming majority, perhaps even all my colleagues, would strongly
support the Supreme Court affirming the Grutter decision of the
Sixth Circuit, we have always been careful, even when there has been overwhelming
faculty opinion on a particular issue, to be clear that we as members
of the faculty are speaking in our individual capacity only.
"Secondly, our admissions
policy, does not specifically take race, by itself, into account.
We talk in terms of admissions goals about producing lawyers who will
serve all segments of society. Without question, one of the objectives
of our admissions policy is to facilitate a diverse class in terms of
all aspects of diversity, including race and ethnicity - but also gender,
age, professional goals, life experiences, graduate education, residency
and much more. What we have tried to do is craft an admissions policy
that explains why we take all of these things, including race and ethnicity,
into account with the hopes that even if Grutter is reversed there
may well be room for us to continue to have students representing diversity
of all kinds. Nevertheless whatever the Supreme Court does will affect
our flexibility.
"I do not think it is appropriate for me to lecture
the Board about the importance of diversity at the Bar, but I would like
to identify a few things that might not otherwise come to your attention:
"One of the things we have always done on the Admissions
Committee at the U.W. Law School is look at the whole file. We look beyond
the numbers - grades and LSAT scores -- and we have done that for a variety
of reasons. Most obviously, we want students with different viewpoints
and personal experiences because we think a lot of the learning that goes
on is student-to-student, whether in classroom discussions or working
together on projects, moot court briefs, and so on. We are training people
who are going to serve and work with people of diverse backgrounds and
who are going to be leaders in the public affairs of the day, so we think
creating a learning environment that brings together people from diverse
perspectives is critical to a top-tier legal education. We have always,
for example, looked at an applicant's prior work experience, what an applicant
has done, and where the applicant comes from to try and build the most
diverse and interesting class we can. It is scary that there may well
be a decision that holds that we can look at the fact that someone had
a purple heart in the Gulf War, was captain of the high school swimming
team, or organized a community food bank in Racine, but can't look at
the fact that they are a member of a particular racial or ethnic group
with the kind of perspective and experience that may come from that. The
Supreme Court's decision is a matter of significant concern for us in
terms of our ability to build the kind of learning environment that we
think is important for a high quality legal education.
"The second factor is the role that I think we play
on behalf of the State of Wisconsin, and I will brag for a second. We
are without question the number one producer of professionals of color
in the state of Wisconsin. Put all the professional schools around the
state together. Nobody matches our record. We are a national law school
recruiting people on a national basis. I think that all of you who care
about this state and the diversity of the Milwaukee and state business
communities, the legal community, etc, can recognize our role in bringing
to the state of Wisconsin students, including students of color, who might
not without our admissions process be part of the growth and development
of this state.
"The University of Wisconsin Law School does not have
a quota system. If you look at our admissions numbers you might find,
for example, African Americans as a percentage of the overall class vary
from year to year, because we have a "whole-file" approach and
not a quota approach. One of the arguments that came up in the Michigan
case is the "critical mass" argument. We have experience in
what happens in classes when groups are relatively unrepresented. What
we hear is that it is really tough to be the only person of color in a
particular class. Whatever the implications of this for law schools that
are in fairly diverse settings, it is particularly critical for us because
we are in what is still a relatively non-diverse state, so we are in effect
trying to bring students of color in on a national basis. Being able to
have a group of students of color who can help tell an applicant we are
recruiting what Wisconsin is going to be like and to welcome that person
is significant. And, if our numbers start to shrink you can imagine the
trend, because students are going to say they do not want to be one of
five blacks in their first year class.
"Our student body, white students and students of color,
are following the Michigan case very closely. It is inappropriate for
me to ask you to do something, but I will say if I could go to our students
and say that the State Bar of Wisconsin is one of the few bar associations
in the United States that has taken an amicus position, it would be a
tremendous message to both our current and prospective students about
the commitment of their new home state to inclusiveness and would send
a very strong message."
