The Clinical Legal Education Association ("CLEA") is an
organiza-tion founded by clinical law teachers in 1992.¹ Among the principal
goals of the CLEA are to bring together all individuals involved in clinical
education, to foster the development of clinical methodologies, and to prepare
students for the practice of law by integrating clinical methodology into legal
education.

The CLEA is vitally interested in this case because personal experi-
ences, student feedback and academic analyses and writings of the constituent
members of the CLEA confirm that viewpoint diversity and racial diversity are
critical to training young lawyers to be effective counselors in legal clinics while
in law school and, later, to be effective advocates and advisors in the increasingly
multi-cultural legal profession. Should admissions practices such as the one

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¹     CLEA has a sixteen-member Board of Directors. One member of the
board, Suellyn Scarnecchia, is the Associate Dean for Clinical Affairs at
The University of Michigan Law School.

adopted by The University of Michigan Law School (the "Law School") be
forbidden, it would be extremely difficult, if not impossible, to achieve the
necessary diversity in the student bodies of law school classes. This, in turn,
would make it virtually impossible to provide to law students the sufficient and
continuing exposure to diverse viewpoints formed through racial, social and
cultural experiences that is central to challenging all students' beliefs and perspec-
tives, developing students' understandings of clients and others whose experiences
and views of society or the legal system may differ greatly from theirs, and,
ultimately, in providing the best possible clinical training and legal education.

I.       UNDERSTANDING VARIOUS PERSPECTIVES
THROUGH EXPOSURE TO DIVERSE STUDENT
POPULATIONS IS CRITICAL TO CLINICAL EDUCATION

In the view of the CLEA, a diverse student body in law school
classes, and specifically in clinical settings, is essential to exposing students to
differing perspectives and beliefs present in a modern multi-cultural society and to
permitting and forcing students to evaluate their own beliefs and viewpoints for
potential bias and ignorance of cultural context. These processes, in turn, result in
students becoming better able to understand and appreciate, from the perspectives

of their own clients within the clinics, the problems and issues they are asked to
analyze and resolve. This enhanced ability to view problems from the perspec-
tives of their clients makes the students better counselors and advocates, not only
in clinical settings but also in other areas of their future practices.

A.       Clinical Legal Education Is Essential To Teaching
Law Students Skills Necessary To The Practice Of Law

There can be no dispute that law school clinics are ideal settings in
which to teach law students essential skills necessary to the practice of law, such as
problem identification and solution, factual investigation, counseling and
negotiation. See American Bar Association Section of Legal Education and
Admissions to the Bar, Legal Education and Professional Development B An
Education Continuum (Report of the Task Force on Law Schools and the Profes-
sion: Narrowing the Gap) 234 (1992) (the "MacCrate Report"). "Real-client"
clinic instruction provides a unique educational opportunity for students to learn
and integrate professional skills and values into an actual practice setting.²
MacCrate Report at 238. Indeed, clinical legal education has become such an
essential part of legal education that American Bar Association accreditation

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²     Among the fundamental values of the profession is "acting in conformance
with considerations of justice, fairness, and morality" on behalf of a client,
and helping ensure that adequate legal services are provided to those who
cannot pay for them. MacCrate Report at 213.

standards now provide that each law school "shall offer live-client or other real-
life practice experiences ." ABA, Standards for Approval of Law Schools
(1996) (Standard 302(d)).

Over the last decade, the vast majority of law school clinical pro-
grams have adopted the theory that the lawyer-client relationship needs to employ
a client-centered approach. ³ See, Robert D. Dinerstein, Client-Centered Counsel-
ing: Reappraisal and Refinement, 32 Ariz. L. Rev. 501 (1990). A central tenet
of this approach is for lawyers to communicate and "connect" with clients in a
manner that elicits disclosure of complete and accurate information in order to
enable lawyers best to pursue their clients' true interests and objectives, not
simply interests or objectives that lawyers may believe their clients have or should
have. See, Michelle S. Jacobs, People From the Footnotes: The Missing Element
in Client-Centered Counseling, 27 Golden Gate U.L. Rev. 345 (1997) (hereinafter
"The Missing Element"). See also, D. Binder, et al., Lawyers as Counselors: A
Client-Centered Approach (1991); R. Bastress & J. Harbaugh, Interviewing,
Counseling and Negotiating: Skills for Effective Representation (1990).

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³     Full-time practitioners in every aspect of the law also try to engage in
client-centered counseling. Accordingly, skills learned in law school

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^{3 continued}     clinical programs have direct application in all aspects of law practice.

B.       American Law School Clinics Serve A
Predominantly Minority Client Base

While training student-lawyers in the profession, American law
school clinics operate largely to serve under-privileged clients. At various times
(and depending on the programs), law clinic students handle, among many other
types of matters, cases involving child advocacy, community economic develop-
ment, poverty law, low income housing, civil rights and asylum and refugee law.
In most instances, approximately 60% of the client base for law school clinics
consists of minorities with cultural backgrounds, levels of education and view-
points distinctly different not just from the non-minority client group but also
from one another. See, e.g., Legal Services Corporation, Serving the Civil Legal
Needs of Low-Income Americans (April 30, 2000), at
http://www.lsc.gov/pressr/EXSUM.p-df (with respect to representation in civil
cases, the Legal Services Corporation demographic statistics track very closely
with those for law school clinics). See also, U.S. Department of Justice Bureau of
Justice Statistics, Indigent Defense Statistics (1999), at
http://www.ojp.usdoj.gov/bjs/Id.h-tm (77% of black inmates and 73% of hispanic
inmates had court-appointed, publicly-financed lawyers).

C.       Viewpoint And Racial Diversity Are Critical To Law Students'
Self-Evaluation Of Biases That Might Lead To Misunderstandings
Or Rejections Of Their Clients' Actions, Attitudes Or
Viewpoints

For client-centered counseling to be successful in a law school clinic
setting, student-lawyers need fully and accurately to understand their clients'
viewpoints within the clients' own contextual experiences. This understanding is
essential for student-lawyers to be able to convey their clients' viewpoints accu-
rately to adversaries, judges or juries and to assist triers of fact to understand their
clients' stories within their clients' own contextual experiences. See, The
Missing Element, 27 Golden Gate U.L. Rev. at 373.

The achievement of these objectives is almost necessarily predicated
on the presence in the law school of a truly diverse student body. Clinical law
students working in the areas of, for example, poverty law, welfare law, child
advocacy, immigration and refugee law meet many clients who have backgrounds
and experiences totally foreign to, and often difficult even to comprehend by,
many or most law students.

With backgrounds that fall all along the spectrum of privilege, many
law students may also have subconscious biases regarding race, culture, social
status, wealth and poverty. To understand and communicate effectively with
clients from backgrounds vastly different from their own, student-lawyers must

first be able to identify their biases. They must then attempt to set aside their
biases and to consider the actions and objectives of their clients from the perspec-
tives of their clients and in the context of their clients' racial, cultural and/or
socio-economic backgrounds. ⁴

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⁴     Without intense evaluation of personal bias and consideration of clients'
actions and viewpoints in such context, student-lawyers tend to fall back on
stereotypes that lead to misunderstandings of their own clients and their
clients' actions and attitudes. Inevitably, such misunderstandings undercut
their clients' confidence and undermine their attorney-client relationships.
In one case described in the academic literature, for example, a black client
had missed an appointment with clinic students to discuss the client's case.
The students assumed the client was merely being irresponsible, although
nothing in the client's behavior up to that time should have led them to
believe so. In fact, the client's car had broken down on the day of the

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^{4 continued}     appointment. The students' assumptions about the client resulted from
their value judgments of the client based on his race. See The Missing
Element, 27 Golden Gate U.L. Rev. at 405-406. This case was particularly
problem-atic since the client had gone to the clinic because he allegedly had
been given traffic citations by two white state troopers without apparent
cause; and the client honestly believed they had been issued for no reason
other than that the client was "driving while black." The client's belief
that he had not been afforded equal dignity with white drivers was further
aggravated by the manner in which he was treated by his own counsel. Id.

For the student-lawyer, this process of self-identification and analysis
often begins and progresses through discourse with a racially, culturally and socio-
economically diverse mix of fellow student-lawyers. It is through this discourse
that students test their own perceptions about race, poverty and culture against
those of their peers. See, Suellyn Scarnecchia, Gender & Race Bias Against
Lawyers: A Classroom Response, 23 U. Mich. J.L. Ref. 319, 331 (1990) (setting
out student reactions to discussions of race or gender issues in law school classes);
Mary Jo Eyster, Analysis of Sexism in Legal Practice: A Clinical Approach, 38 J.
Legal Educ. 183 (1988)(discussion of confronting racism and sexism through
clinical education). This discourse enables student-lawyers to understand how
race and culture can form clients' worldviews and influence clients' actions and
objectives. It also enables student-lawyers to understand that, with respect to
many issues, there is no single, uniform minority viewpoint held generally even
by members of a single minority group. In essence, having a diversity of
viewpoints teaches student-lawyers to recognize personal bias, eliminate reliance
on stereo-types and undertake an unencumbered evaluation of each client's
background and problems to achieve each client's unique objective.

Clinical educators believe it imperative for this discourse and self-
identification to begin early in student-lawyers' courses of training. Indeed,

where student-lawyers enter into attorney-client relationships without being aware
of their own cultural biases — whatever they might be — myriads of harm can
result to clients. See, The Missing Element, 27 Golden Gate U.L. Rev. at 363-
374, 387-388 (discussing clinical case in which students' and advisors' failure to
understand their own cultural biases led to demeaning and patronizing treatment
of client and failure to achieve client's goal of obtaining judicial restoration of
client's dignity). See also, Peter Margulies, The Mother With Poor Judgment and
Other Tales of the Unexpected: A Civic Republican View of Difference and
Clinical Legal Education, 88 Nw.U.L. Rev. 695, 706-711 (1994) (discussing two
clinical cases in which the students' and the clinician's ingrained beliefs and
attitudes resulted in failure to gain a complete understanding of their clients'
sensibilities and needs); Margaret E. Montoya, Voicing Differences, 4 Clinical L.
Rev. 147 (1997) (cau-tioning lawyers to be mindful of potential for harming
clients' larger interests even while prevailing in lawyering efforts). Additionally,
early exposure to diverse viewpoints and discourse enhances the abilities of
student-lawyers to consider and resolve problems. ⁵ It teaches students to re-
examine rote solutions and develop creative approaches to clients' unique needs.

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⁵     A recent Gallup Poll survey of law students at Harvard University Law
School and The University of Michigan Law School showed that two-thirds
of the law students at these two institutions believed that exposure to racial

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^{5 continued}     diversity enhanced the abilities of students to analyze problems and find
solutions to legal issues. Gary Orfield and Dean Whitla, Diversity and Legal
Education: Student Experiences in Leading Law Schools, The Civil Rights
Project, Harvard University (1999) (at, http:// www. law. harvard.edu/ groups/ civilrights/publications/lawsurvey.html). "If a central question is
whether or not racial diversity broadens the intellectual life of the university
and enriches the educational experience in the student community, there are
only two reliable sources - the students and the faculty." Id.

D.       Exposure To Viewpoint And Racial Diversity Is Also Critical
To Training Law Students To Be Effective Advocates In
The Multicultural Practice Of Today's Legal Profession

The CLEA strongly believes that the struggle for diversity does not
end with law school. In the final analysis, exposure to a diversity of viewpoints
frequently equips lawyers to challenge and assess their own biases on a continuing
basis. ⁶ The ability to set aside prejudices, stereotypes or other pre-conceived
views helps turn student-lawyers into effective communicators and counselors.
Evaluating client concerns without the filtering lens of one's own biases will
continue to serve student-lawyers in their legal careers that are increasingly
international, multi-cultural and multi-disciplinary. See, e.g., Margaret Martin
Barry, Jon C. Dubin & Peter A. Joy, Clinical Education For This Millennium:
The Third Wave, 7 Clinical L. Rev. 1 (2000) (discussing the imperative need,
given the inevitable globalization of the legal practice, to refine and expand
approaches to teaching students how to interact with clients who are different
from them). ⁷

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⁶     Even experienced attorneys and clinicians who understand communication
dynamics can fall into the trap of having personal prejudice interfere with
effective lawyering. For example, one clinical law professor took a year-
long sabbatical to practice in the civil division of the Office of the United
States Attorney for the Eastern District of New York. As an academic, this
clinical law professor advises her students to maintain a neutral viewpoint
and avoid preconceived notions when meeting a client or witness who

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^{6 continued}     comes from an unfamiliar background or appears to have values and priori-
ties different from that of the student. However, at the start of her practice
with the United States Attorney's Office, the clinical law professor found
herself unable to set aside her own prejudices and stereotype-based views
when deposing a witness. As a result, she later reported, her own questions
became "impatient and judgmental," rather than fact-finding, and her
deposition was less than completely useful. Stacy Caplow, A Year in
Practice: The Journal of a Reflective Clinician, 3 Clinical L. Rev. 1, 24-25
(1996).

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⁷     Achieving racial and viewpoint diversity is not just a challenge faced by law
schools. A recent article by David B. Wilkins starkly condemns the hierar-
chy and structure of American law firms for their inability to recruit and
retain a racially and culturally diverse group of lawyers and explains why
such diversity is so important in the global legal marketplace. David B.
Wilkins, Why Global Law Firms Should Care About Diversity: Five
Lessons from the American Experience, 4 European J. L. Ref. 415 (2000).

II.       AN UNDERSTANDING OF DIFFERENT PERSPECTIVES
CANNOT BE DEVELOPED WITHOUT
A CRITICAL MASS OF MINORITY STUDENTS

The court below criticized the Law School's practice of seeking to
attain a "critical mass" of minority students on the grounds that, in concept,
"critical mass" is indistinguishable from a quota system. Accordingly, the court
ruled, the Law School's admissions practice could not withstand constitutional
scrutiny. Grutter v. Bollinger, et al., No. 97-CV-75928-DT, US Dist. LEXIS
3256 at *84 (Mar. 27, 2001). In making this determination, however, the court
below failed sufficiently to consider who the beneficiaries of the Law School's
practice are and how the practice relates to the underlying rationale for the need
for "critical mass."

Under Regents of the University of California v. Bakke, 438 U.S. 265
(1978), and its progeny, race-based quotas or set-asides are constitutionally
impermissible because they have the purpose and effect of directly benefitting the
members of a preferred group at the expense of others outside the preferred
group. ⁸ 438 U.S. at 319-320. See also, City of Richmond v. J.A. Croson Co., 488
U.S. 469, 496 (1989); Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757, 763 (6th

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⁸     As the CLEA understands it, the Law School does not use race as the
determinative decisional criteria for any of the 350 or so available spaces in
an entering Law School class. Instead, each applicant receives a
"holistic," individualized review of his or her entire file.

Cir. 1983). That analysis, however, is inapposite to what CLEA understands to be
the rationale behind the Law School's admissions program, and is certainly
inapplicable to the rationale behind CLEA's interest in significant diversity: to
attain a "critical mass" of diverse students for purposes of clinical training.

The Law School's admissions policy was adopted to aid the school in
achieving its stated goal of attaining a diverse student body, a goal whose legiti-
macy was explicitly approved in Bakke. ("[T]he attainment of a diverse student
body … clearly is a constitutionally permissible goal of an institution of higher
education." 438 U.S. at 311-312 (opinion of Powell, J.).) Witnesses testified in
the court below that "racial diversity is part of the diversity of perspectives
needed to enhance the 'classroom dynamic.'" See Grutter, US Dist. LEXIS
3256 at * 38-39. They testified that a "critical mass" of minority students is
required to achieve this diversity of perspectives because minority students need to
"feel free to express their views, rather than to state 'expected views' or
'politically correct views.'" Id. at *39. Indeed, they testified that "where a
critical mass of students are present, racial stereotypes are dismantled because non-
minority students see that there is no 'minority viewpoint.'" Id. Thus, based
on the record below, it is apparent that the benefits to be obtained from a "critical
mass" are not wholly intended by the law School to inure to minority students.

Rather, the concept of "critical mass" is designed to benefit the Law School as
an institution and every student in the law school.

From the perspective of the CLEA, the benefit to minority students
of having a "critical mass"of such students is no greater than the benefit received
by non-minority students. As addressed fully above, in Section I, a multiplicity
of viewpoints helps each student to test his or her own viewpoints and perspectives
by demonstrating both that minorities can and do have world views and experi-
ences that are foreign to non-minority students, and vice versa, and that there is no
single minority opinion or experience, just as there is no single non-minority
view. ⁹ This understanding is particularly and uniquely important in a clinic
setting where student-lawyers frequently encounter clients with backgrounds and
perspec-tives different from their own.

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⁹     The court below stated that viewpoint diversity and racial diversity are not
the same things and that the "connection between race and viewpoint is
tenuous, at best." Grutter, US Dist. LEXIS 3256 at * 82. While the
CLEA accepts the former conclusion, it disagrees strenuously with the
latter. The experiences of CLEA's members confirm that, while by no
means wholly uniform, members of racial minorities tend frequently to
have distinctly different reactions, responses and perspectives — and indeed
"viewpoints" — with respect to given factual situations than do their non-
minority peers. Thus, although minority students' views are by no means
uniform, their views frequently diverge, in different ways, from views
commonly ex-pressed by their non-minority counterparts. Viewpoints, at a
minimum, are informed by experience and, frequently, by racial diversity.

The issue then becomes whether these benefits can exist without a
"critical mass" of minority students. Both academic research and the
experiences of clinical law professors tend to show that they cannot.

In a more formal B classroom or clinical B setting, in the absence of
a "critical mass" of minority students, minority students often feel a lack of
support in voicing an opinion and, as a result, suppress their opinions. See, e.g.,
Kimber-le Williams Crenshaw, Foreword: Towards a Race-Conscious Pedagogy in
Legal Education, 11 Nat'l Black L. J. 1 (1989). Alternatively, minority students
may be reluctant to speak out due to perceived pressure to represent the Aminority
view-point@ despite the fact that no such consensus minority viewpoint may even
exist. Id. When this self-censoring takes place, the opportunity to hear,
challenge and learn from differing perspectives is lost. The educational
experiences of all students are made immeasurably poorer by such suppression of
divergent opin-ions. Indeed, this very classroom dynamic was the focus of the
testimony of Dean Kent Syverud in the court below. (See, Syverud, 5TR at 37-
48.)

A "critical mass" of minority students is also essential in order for
all students to be able to be exposed to differing perspectives in the various
informal settings that are central to the educational process. A small number of

minority students is simply insufficient to provide the opportunities for interaction
with much larger numbers of non-minority students on a routine basis in
unstructured, relaxed settings. Such settings often provide the opportunity for
much more open, frank and intense discourses and learning than does a structured
classroom (or even a clinical) setting, and in the views of many represents the
paradigm of the university experience. They provide, perhaps, the best
opportunity for law students to obtain the full benefits of diversity and to develop
the understanding that will prove crucial to their development in clinics during
law school and in practice after graduation. See Bakke, 438 U.S. at 312-13 n.48
(opinion of Powell, J., quoting Bowen, Admissions and the Relevance of Race,
Princeton Alumni Weekly 7, 9 (Sept. 26, 1977)).

For all the foregoing reasons, the CLEA respectfully requests that
this Court reverse the district court's decision, permanently lift the injunction and
remand the matter to the district court with instructions to enter judgment in favor
of the Law School.

Questions? Comments? Please send e-mail to diversitymatters@umich.edu.
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