Berkeley Law Segregates Its Black Students ... Really?

By Jonathan R. Tung, Esq. on October 05, 2015 | Last updated on March 21, 2019

It seems inconceivable that Berkeley Law administrators did't see this coming: the school's current arrangement of students looks like a form of segregation.

Law schools routinely break the incoming students into smaller sections, which Boalt calls "mods." It's standard practice that mods take 1L classes together. But Berkeley's current arrangement will all but ensure that every single African American student will get funneled into two "super-mods," leaving the other mods completely free of any black presence whatsoever.

Cultural Diversity: In the Shadow of Bollinger

Berkeley hoped to address the very issue of cultural diversity that is often cited from Grutter v. Bollinger. In Bollinger, SCOTUS clarified (or attempted to clarify) that permitting universities to implement a race conscious admissions process would allow schools to favor "underrepresented minority groups." The dissent argued that the University of Michigan's "plus" system was in fact nothing more than a quota in disguise, and, as a result, it was unconstitutional under Regents v. Bakke.

Berkeley claims that the law school "chose to ensure a 'critical mass' of underrepresented students in each mod, when possible." In prior years, minority students had claimed that they felt isolated when they were the only members of their racial group in the class. But now, who could blame the minority students for feeling patronized?

Damned If You Do, Damned If You Don't

What happened at Berkeley almost seems inevitable, given their approach. The inclusion and concentration of students based on color (for the sake of meeting a "critical mass") necessarily excludes other ethnic groups.

One can't help but at least feel a little sympathetic about schools who are forced to take some action, no matter how small, lest they appear callous. But a good faith attempt to address the problem could end up upsetting more people than it makes happy.

The solution isn't simple and there is a long history surrounding the issue. Legions stand ready to be offended with action ... or offended with inaction. It's doubtful that Berkeley had anything but good intentions when it attempted to tackle its diversity issue. Perhaps we can mark it down as an A for effort?

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