This year, I have used this column to reflect on the lawyer’s role as citizen – as member of a community that extends beyond family. Recent events at the Law School offer a concrete opportunity to discuss how lawyer-citizens can draw on their training to sustain their community under circumstances that threaten to divide it.
In December, a lawsuit was filed alleging that the Law School’s admissions policies discriminate unconstitutionally on the basis of race. By way of background, let me say that I believe the Constitution permits us the discretion to craft policies such as the one that our faculty adopted in 1992, and that our policy is in the best educational interest of our law school. (See story, p.17). But that is not my point here. Rather, I would like to remark on how the coming debate about our policies can strengthen our community.
The question of affirmative action in university admissions is one of the most widely debated issues of our time, even among people with no immediate financial or family stake in its outcome. It engages us not only as self-interested individuals, but also as citizens. And it is an issue where people of good will are found on both sides.
Regrettably, the national conversation about university admissions can easily turn querulous and accusatory. At times like this, I have great faith in the ability of well-trained lawyers to take the conversation to a higher plane, where competing values are acknowledged and discussed, where intensely held beliefs can coexist with self-criticism and mutual respect.
F. Scott Fitzgerald once wrote that the test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time. A first-rate lawyer has the allied skill of sympathetic engagement with counterargument – the ability to hold one set of beliefs while being able to imagine, articulate, and acknowledge the logic behind an adversary’s position. The cultivation of that skill is one of the most valuable elements of a legal education, and it is part of what motivates our desire to have a diverse, heterogeneous student body.
In the debate over law school admissions, the more our critics and supporters engage each other’s arguments sympathetically, the more constructive the debate will be for our community and our society. Thus, we who are committed to affirmative action in admissions should acknowledge that our critics are invoking a powerful theme: that people should be treated as individuals rather than as representatives of a race or ethnic group.
At the same time, our critics should acknowledge that our policy is also motivated by powerful concerns. At this point in our nation’s development, unflinching colorblindness would require us to disregard the ways in which race continues to shape Americans’ life experiences and opportunities. As the recent experiences of law schools at Berkeley and Texas demonstrate, colorblind admissions would dramatically reduce the degree of racial integration to be found in our nation’s finest law schools. And it would be significantly detrimental to the quality of education that we provide.
In a complex, imperfect world, we are often forced to make difficult choices among plausibly attractive values. In their roles as citizens, the best lawyers honestly illuminate these choices and thereby build understanding. Disagreement is inevitable, but distrust is not. To the extent we can help others to appreciate that fact over the course of this litigation, we will be achieving the highest ideals of our profession.
