After Affirmative Action

Abstract

This is a time of crisis in legal education. In truth, we are in the midst of several crises. We are emerging from the COVID pandemic, a period of unprecedented upheaval where law students and law faculty alike struggled through physical challenges, mental health burdens, and decreased academic and professional success. The past few years also have seen a precipitous drop in applications to and enrollment in legal education. Simultaneously, students have been burdened with the skyrocketing costs of attending law school, taking on unmanageable levels of debt. And with the Supreme Court decision in SFFA v. Harvard, we are witnessing the end of affirmative action as we know it. As a result of the combination of these crises, and particularly due to the SFFA decision, we are likely to see a swift and dramatic decline of students of color—particularly Black and Latinx students—entering our nation’s halls of higher education, including our law schools. In this moment of looking to the future to consider “next steps” as we navigate these crises, many advocates and academics are struggling with how to move forward. My proposal is to build belonging. By increasing belonging on campus, law schools can contribute to an increase in retention rates for students of color. This is particularly critical at this moment not only because the numbers of students of color will likely be dwindling, but because the drop in diversity will inevitably cause even greater student marginalization on law school campuses with fewer opportunities for students of color to draw on others from their same background for mutual support. Failing to invest in Black, Latinx, and other students that are particularly affected by SFFA will leave them isolated and alienated, contributing to further academic and professional decline. Instead, by adding to students’ sense of belonging, schools can uplift and encourage them to persist through legal education and maximize their potential in practice. This Article lays a foundation for the importance of creating and sustaining belonging in legal education, particularly for students of color and in this moment where we are searching for answers after affirmative action. In introducing belonging as well as tying it to affirmative action, the Article shares broad context on the term and its application: what it is, why it matters, and how it has been lacking for students of color and other marginalized populations. Finally, this Article argues that increasing levels of belonging could maximize success for students who will need even greater support to survive and thrive in law school in the coming years