In January, the University of Texas School of Law in Austin filled a teaching position. The faculty hiring committee had reviewed roughly 800 applications and selected 50 to 60 for a more careful look. By the end of January, the committee had extended five offers, but two candidates were still vying for the last spot.
One candidate, Gregory Eaton Maggs, had "a résumé made in heaven," according to one faculty member. Maggs had graduated with highest honors from Harvard College and with high honors from Harvard Law School. He had clerked for Supreme Court Justice Anthony Kennedy. He had three publications in the Harvard Law Review, two on the subject of commercial law (an area in which U.T. desperately needed faculty with expertise). Maggs was working for Robert Bork, one of the leading legal intellectuals in the country. In addition, he spoke several languages, was a first lieutenant in the U.S. Army Reserve, and had set two records mentioned in the Guinness Book of World Records.
If Maggs's résumé was made in heaven, Elvia Arriola's was clearly not. Arriola graduated without distinction from Boalt Hall (the University of California at Berkeley's law school) and was working toward a Ph.D. at New York University. She had worked in New York as an assistant state attorney general. Arriola listed teaching experience as a writing instructor at Brooklyn Law School and as a kripalu yoga teacher.
On her application, Arriola said she preferred not to teach classes such as "U[niform] C[ommercial] C[ode], tax, corporat[ions], and trust and estates]." But she was willing to teach such classes as "politics" and "gender and legal history" (neither of which are staple courses in any law school's curriculum), as well as administrative and labor law. Arriola had published articles in the Women's Rights Law Reporter and the Columbia Human Rights Law Review on topics such as "Women in the New York City Construction Industry."
As one member of the hiring committee describes it, the decision was an easy one. He recalls a faculty member saying, while the committee deliberated, "In Arriola's favor, she does appeal to three constituent groups. She's a Hispanic, a woman, and a lesbian." Another faculty member noted, "Her scholarship isn't terrible." Given these overwhelming qualifications, the faculty did not hesitate; they chose Arriola over Maggs (who was, after all, only a white male).
The committee made the decision in the name of "equality," which, like "multiculturalism" and "sensitivity," is a very popular cliché on our nation's campuses. Under this understanding of equality, the idea of judging candidates as individuals, based on their skills and achievements, is just another in a long list of politically incorrect "isms"—in this case, "credentialism." Julius Getman, a law professor at the University of Texas, says credentialism represents "a narrow vision of excellence."
The University of Texas has broadened its vision of excellence to encompass factors that credentialism deems irrelevant. The law school not only hires faculty members with explicit reference to gender, race, and sexual preference, it chooses students using similar criteria and doles out substantial amounts of financial assistance on the basis of race. These policies are all the more outrageous in light of the Supreme Court's unequivocal mandate to the school in Sweatt v. Painter, a 1950 ruling that struck down the use of racial classifications in admissions.
The process that culminated in the hiring of Arriola illustrates how blatantly the University of Texas is violating that mandate. Professor Sanford Levinson, chairman of the faculty hiring committee at the law school, explains that the initial winnowing-out process relies on the traditional criteria: law school, law review membership, clerkships. Of the 800 applicants, about 760 candidates—those who did not identify themselves as members of minority groups—were evaluated this way. Levinson says the 760 nonminority candidates were pared down to 35 or 40 (the top 5 percent).
But race is a factor even at this early stage. Of the 800 applications, only 40 were from minorities. Levinson explains: 'We take a closer look at those who 'check off,' especially on race or ethnicity. Gender is different. Of the 40 minorities, we discarded at least 20 to 25…because the minimum qualification thresholds weren't there." So roughly 40 percent of the minorities advanced to the next stage.
"I endorse threshold criteria," Levinson says. "Out of the initial 800, most of the faculty can agree on the top 50 candidates. For example, Greg Maggs is someone everyone on the faculty agreed we should look more carefully at. The question becomes, How much weight are we going to give to achievements?
"It is not the case, as is sometimes alleged, that all you have to do to get an interview is show up with the right color skin. There are people who think we're much too ruthless with [minorities]. The fact is that a minority who graduates from a first-rate law school, even if their numbers are not so high, will get an interview. That's where the preference comes in."
Levinson contends that the minority candidates who got "a closer look" would have been in the top half of the applicants if the process had been colorblind. After all, they were all from top law schools. Asked whether a minority candidate had to have graduated with honors to merit closer examination, Levinson answers, "No, it's not dispositive.…Some did, some didn't."
What about a white male candidate with the same credentials as Arriola—no graduation honors, no law review membership or clerking, but some moot court experience and involvement in public-interest law? "We wouldn't give him a second look," Levinson says matter-of-factly. "We've got better. There is nothing compelling us to take a look at this white guy that we're talking about. He's not going to get a look from any of the top 10 law schools."
Faculty hiring is not the only area in which the University of Texas uses racial criteria. Recently released statistical evaluations of the classes admitted in 1989 and 1990 show that the law school also selects students on the basis of race. The admissions process begins innocently enough. An applicant's GPA is multiplied by 10, and that number is added to his or her LSAT score, which ranges from 10 to 48. This number is the applicant's "Texas index"—basically, his or her key to getting in.
The admissions committee then divides the applicants into racial pools and sets automatic admissions cutoffs for the various groups. In 1989 and 1990, the median index for blacks was 64, with no candidate above 64 denied admission. Hispanics had a median index of 66, with no candidate above 67 denied admission. For "Anglos" (non-Hispanic whites), the median index was 76, and the admission threshold was 78—14 points above that for blacks. "Other minorities" (presumably including Asians) had a median of 77, with no readily discernible automatic admission threshold.
This admissions system pits racial and ethnic groups against each other in competition for seats in the law school. Indeed, in recent years the admissions committee has relied on strict racial quotas, enforced by separate entrance requirements and separate waiting lists. This directly violates the Supreme Court's 1978 decision in Bakke v. University of California Regents, which held such practices by a state medical school unconstitutional.
The systematic discrimination against nonminority students extends to financial assistance as well. Several years ago, the law school doubled tuition for all students. Half of the additional revenue was to be dedicated to a scholarship fund that would be redistributed to students through the Office of Financial Aid. The office sets aside roughly half of the scholarship fund for minority students. This practice automatically excludes 80 percent of the admitted students from consideration. U.T. awards these "minority recruitment scholarships" largely without regard to financial need.
By contrast, nonminority students with significant financial need are often denied grants. They are forced instead to borrow heavily. To add insult to injury, needy students must pay artificially inflated tuition rates to provide funds that can then be turned over to affluent recipients of minority scholarships.
The use of racial classifications to exclude needy students from scholarship funds directly violates Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by any program or activity receiving federal financial assistance (a category that includes the University of Texas). On March 22, the Washington Legal Foundation, representing seven students, filed a suit in the U.S. District Court for the District of Columbia to require the Department of Education to enforce this prohibition.
The law school's racial discrimination has aroused concern in other quarters as well. The Daily Texan, U.T.'s student newspaper, recently ran an editorial that cited admissions statistics and questioned the constitutionality of the selection system. Furthermore, not all faculty members support the law school's preferential hiring policies. When the decision to hire Arriola was put to the faculty for a vote, she won by only 23 to 21.
Says law professor Lino Graglia: "The professors who participated in the hiring decision are, no doubt, good and compassionate people with the interest of the institution, the state, and the nation deeply at heart. Their chosen path, however, is toward the destruction of all three." Other faculty members and students also expressed outrage at the hiring committee's choice.
In early March, when another position opened up, the faculty offered it to Gregory Maggs, despite his obvious handicaps. He will be teaching bankruptcy this fall, when Elvia Arriola will begin teaching a course on employment discrimination.
Edmund D. Daniels and Michael David Weiss are law students at the University of Texas at Austin. Daniels is a plaintiff in the suit filed by the Washington Legal Foundation.