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Belmont Law Review

Abstract

The Students for Fair Admission (“SFFA”) decision has upended how law schools conduct admission, changing the decades-old practices of considering race as one of many factors in the admissions process. Despite the narrow use of race in the admission process, the legal profession is still almost 81% white, suggesting the use of affirmative action has not been a substantial boost to minority enrollment in law school. Despite the low impact, the United States Supreme Court proceeded with a sweeping decision declaring the use of racial checkboxes unconstitutional and limiting the use of race in admissions to evidence of nonracial attributes an applicant might have, such as resilience. This change has forced nearly every institution in the country to reevaluate their admissions processes, and for those who have heavily focused on acquiring a racially diverse class, they are facing big changes. What the Court does not discuss in its opinion is what happens to all of the currently existing programs that help encourage students of color get ready for and enroll in higher education. From programs that help students with test preparation and academic support skills, there are now questions about the constitutionality of these types of programs and institutions’ relationships with them. This Article will explore one longstanding pipeline program, the Council on Legal Education Opportunity (“CLEO”), and how schools’ relationships with that program may change. This Article begins with a brief overview of the history of segregation and the founding of CLEO, it moves to a history of affirmative action litigation, and provides an in-depth analysis of the new SFFA case. Next, this Article will explore how the Dear Colleague letter distributed by the Department of Education and the Department of Justice impacts school action. Finally, the article will explore potential litigation from the perspective of CLEO, Law Schools, and students of color. The SFFA decision will result in many schools proceeding very cautiously with an eye toward potential litigation, with the outcome of the potential litigation being uncertain. In the case of CLEO, the most pressing question is what a court would consider as a proxy for race, and what can CLEO and Law Schools do to maintain their diversity goals while guarding against the appearance of using race in the admissions decision.

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