What has been called affirmative action by some and racial or group preferences by others is in decline in America. Courts are striking down governmental programs using racial criterion as the standard for admission and other aspects of evaluation. Public opinion generally clearly opposes such preferences. Voter support for ending racial preferences in California is recorded. And yet calls for its maintenance and/or reformation remain a constant among various vocal elites in America. To wit, "Let us mend it – not end it." I would like to offer a different vision.

Our nation's history has been in large measure devoted in theory (although certainly not always in practice) to, as Jefferson put it, a "meritocracy" based on individual achievements and contributions within and to society. Certainly the goal of "equality under the law" for all individuals cannot now be repudiated. From the Enlightenment through the Declaration of Independence to Martin Luther King, Jr.'s declaration that "I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character," western civilization in general and America in particular has lurched toward this goal of eliminating preference based on membership in a group and sought the substitution of individual worth as its replacement.

Preferences based on group identification have very real practical problems as well as philosophical defects. In my view, a great disservice is done to those very individuals the programs are designed to assist. Admission to any program or institution on the basis of group membership sends an unmistakable message of inferiority and inadequacy to those who allegedly benefit from it. It says to them that unless some different and less rigorous standards of evaluation are used "you cannot gain entry." This is also true when preferential treatment is given to the offspring of "well born" and/or generous benefactors.

Moreover, such preferences sow the seeds of distrust, jealousy, and rancor between the various groups seeking special preferences (Blacks, Hispanics, Mexican Americans, women, homosexuals, lesbians, bisexuals, Asian Americans [not of Japanese origins], American Indians -- the list grows longer all the time). The resentment felt by very large percentages of those within non-favored groups is well established. I submit also that the primary beneficiaries to such group preference programs are the organizations and leaders thereof whose position, reputation and income depends in large measure on fostering the dependency of members of their group on such preferential programs. Thus, I disagree wholly with the view that "using race and ethnicity" in order to achieve a diverse student body is the "right" thing to do.

The benefits to society by a reliance on the value of individual worth seems to me indisputable and, contrariwise, the damage to society by deviating therefrom seems equally apparent. During the period of slavery and its progeny, lawfully imposed segregation, our society suffered terrible damage that remains even today and will be felt for decades to come. It was then that America so blatantly violated this foundation of individual worth and merit. To compound this past wrong with another wrong serves neither social justice nor individual equity. How is it right and just to reward Paul and disadvantage Bill because of an injustice done by Bob to Frank some many decades ago?

Although group preference was once used with bad intentions, group preference with good intentions is no less wrong and, in my view, still harmful to society at large and to those it purports to help (for reasons stated above). To perpetuate a reliance on racial and ethnic factors is to damage one primary goal of our society: to judge individuals on the basis of their character and abilities -- not on their group identification or membership.

Admission into law school has long been an arena in which battles over affirmative action/group preferences have been fought. It is, I think, fair to say that most institutions associated with this process have supported such programs vigorously in the past several decades. In my view it is time for those involved in the law school admission process to rethink fundamentally their approaches to the goal of racial, ethnic and gender diversity in law school and, more importantly, in the legal profession. There needs to be developed more effective, legal and constitutional methods of achieving diversity that are in the American tradition of reliance on individual talent and character.

I agree that the LSAT ought to be de-emphasized by law schools admissions bodies. It is after all primarily useful only in identifying the super-talented and those lacking in minimal skills necessary for success in law school. Rather, a close and probing examination of the merits of the individuals applying should be provided. Surely law schools can devise methods for such a process. Admissions officials should evaluate the performance of the applicant as a discrete individual. What are his/her goals, accomplishments, skills, commitments, aspirations, perseverance, character and other particular relevant personal traits? Expanded use of the Writing Sample offers one promising avenue to the goal of measurement of individuals based such questions. Perhaps preparation and submission of a personal portfolio could be utilized. More detailed letters of evaluation (not just recommendation) could be sought and used.  Let me hasten to note however that these somewhat subjective criteria offer ample opportunity in the admissions process to subtly favor those applicants whose racial/ethnic characteristics seem desirable (and to disfavor those not in those favored categories).  This should be resisted vigorously.  One way to do this would be to eliminate from the application process entirely any reference to race/ethnicity/national origin or related classifications.  Clearly this would stop racial discrimination/preferences.

Answers to these questions ought to play an increasingly crucial role in determining admissions decisions -- not what one's race, gender or ethnicity happens to be. Reliance on these individual traits will, I submit, result in the kind of diversity so generally sought. Casting a broad net throughout society to find such individuals is most appropriate and is surely desirable.