Tung Yin


Having survived the latest assault against affirmative action in Fisher v. University of Texas, the diversity rationale for affirmative action continues to rule the day in admissions offices across American universities, including law schools. Yet, there is a striking degree of uniformity about what actually constitutes “diversity;” law schools appear to strive for something around 60–70 percent white students, with the remainder divided fairly evenly among Asian American, African American, and Latino/Hispanic American students, with a handful of Native American students. With the exception of historically black colleges and universities, institutions that deviate too much from this conventional view of diversity are commonly assailed for their lack of diversity—even institutions like University of California, Berkeley, where whites are not even a majority of the student population.

This Article examines the costs of such a uniform conception of diversity. As an example, with so many law schools pursuing a small number of Native American applicants, the result is, with a few notable exceptions, student bodies that have a consistently tiny fraction of Native Americans (approximately less than 1 percent), which is unlikely to be any kind of critical mass. A different conception of diversity might accept that some law schools may end up with fewer Native Americans, while a few other schools would enroll significantly more, approaching a more reasonable critical mass; and the same would presumably be true for Asian Americans, African Americans, and Latino/Hispanic Americans. The question is whether having a relatively small number of schools with different notions of racial diversity (i.e., more concentrated in one of the three major minority groups) would provide alternatives for minority students who would like to be part of a group that is more than 10–15 percent of the overall student body. This Article explores the result of having some law schools being willing to admit student bodies that are just as diverse in white/minority terms but where the minority groups are not divided evenly.