The University of California at Berkeley’s Critical Mass Policy: Racial Inclusion or Segregation?

Questions surround the implementation of a new “critical mass” system at the University of California at Berkley’s Law School that left some first-year sections without any black students.

Photo by the San Francisco News.

The Daily Californian, explained how the system works.   The University of California at Berkeley divides all of its first-year students into nine sections called mods, where students take all of their introductory courses.  These nine mods then funnel into three larger super-mods where students take different classes as they progress through the program.  This year, Berkley’s administration placed more minority students in certain mods to create a “critical mass,” but left one super-mod with no black students.

According to Berkley’s administration, the critical mass policy was implemented in an effort to ensure that minorities are not isolated throughout different mods, which had been a concern with previous mods.

According to Berkeley’s administration, the critical mass policy was implemented in an effort to ensure that minorities are not isolated throughout different mods, which had been a concern with previous mods.  Berkeley’s Law Dean, Sujit Choudhry, said that after hearing from a focus group last year comprised of students, faculty and staff, the majority of minority students reported feeling isolated as the only member of their racial group.

In an email sent out to the law school community, Choudhry appears to stand by the decision to implement the new system.  She further stated that “[the new system] promotes robust conversations and reveals the diversity of viewpoints within racial groups, and it can help dispel stereotypes that others may hold because people see that not everyone from a particular group is alike.”

The Daily Californian further reported that while four of the smaller mods had critical masses of black students, all mods contained underrepresented-minority students. While one of the “super-mods” had no black students, all mods had some Hispanic and Asian American students.  Although the University of California at Berkeley’s Law School says it was only responding to student complaints concerning diversity, the new “critical mass” system is receiving some backlash.

The blog, Above the Law Redline, referred to the system as “segregation” between minorities and whites and pointed out that if Berkeley does not have enough black students to place in each mod, it should simply admit more black students. The author stated that if the law school didn’t have enough black students to place in every mod, that was a sign they should simply admit more black students.  The author suggested this solution to the “solution” implemented by Berkeley that is seen as grouping the black students into a token section to achieve critical mass.  Berkeley, the author further suggested, should be trying to make their law school sections inclusive for all students.

While Redline and many others may share the view that Berkeley should admit more minorities rather than implementing a critical mass system, this statement is easier said than done.

While Redline and many others may share the view that Berkeley should admit more minorities rather than implementing a critical mass system, this statement is easier said than done.  Our country has had a tumultuous history concerning race.  This is evident specifically in the contexts of employment and education with the ongoing debate concerning affirmative action.

Since affirmative action deals with race, which is a suspect class, courts apply strict scrutiny in determining the outcome of these cases.  What is strict scrutiny?  In the educational context, the government bears the burden of proving that the reason for implementing the regulation is “unquestionably legitimate” and “narrowly tailored” to meet its educational mission. Although in the educational setting, courts give great deference to a university’s judgment, the court must still ensure that there is a “reasonable, principled explanation for the academic decision.”

[The applicable strict scrutiny test] states that “the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” 

The applicable strict scrutiny test for education cases comes from Regents of the University of California v. BakkeThe test states that “the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”  In other words, schools may consider race only as a factor in the admissions process.  Various other factors must be considered alongside race in order for a regulation or practice to be upheld as constitutional.

The Supreme Court recently heard arguments in the case of Fisher v. Texas, in which the parties debated about the undergraduate admissions policy at the University of Texas (UT).  The university implemented a “Top Ten Percent” plan, which automatically admits any Texas student who graduates in the top ten percent of his or her class, regardless of SAT score or other factors.  This plan guarantees that some minority students who would usually not be admitted to UT would gain admission.  Those who do not qualify under the Top Ten Percent Plan are evaluated under the “AI/PAI Plan” which is a multifaceted, individual review process under which applicants are evaluated based on Academic Index (AI) and Personal Achievement Index (PAI).

In a 7-1 majority decision, the Supreme Court applied the affirmative action strict scrutiny analysis and held that the District Court and the Court of Appeals gave too much deference to UT’s admissions programs by not assessing whether or not UT’s reason for implementing the admissions policies were constitutional under Bakke.

It is likely that if sued, Berkeley will have to articulate it’s reason for the “critical mass” system and show that the system is necessary for diversity on campus.

Like the University of Texas did, the University of California at Berkeley’s Law School may be opening itself up to litigation with such a controversial policy.  It is likely that if sued, Berkeley will have to articulate it’s reason for the “critical mass” system and show that the system is necessary for diversity on campus.  Berkeley, however, may have a legitimate reason for its critical mass system.

A new study published in the Journal of College and University Law at the University of Notre Dame found that maintaining higher levels of critical mass will make African American and Latino students feel more respected on college campuses.

William Kidder, assistant provost at the University of California Riverside, conducted the study and found that in comparing campuses, 98 out of 98 campuses where African Americans made up 5 to 10 percent of the student body reported feeling more respected on campus as opposed to campuses with a less diverse student body.

According to the UC Berkeley chapter of La Raza Law Student Association, further research by the Executive Vice Chancellor and Provost at Berkeley, Claude Steele has shown that students do not perform as well academically when isolated from other members of their racial group.  These studies found that isolation in the classroom can lead to a confirmation of negative stereotypes relating to ability, which in turn, can create negative psychological effects on minority students.  Unfortunately, this can lead to further poor academic performance.

[The] argument can be made that Berkeley’s critical mass systems and others like it, are simply masking the overarching problem – a lack of diversity and inclusion in higher education. 

Whether one believes that critical mass systems amount to segregation or in contrast, that these systems are necessary to promote diversity on college campuses, the argument can be made that Berkeley’s critical mass systems and others like it, are simply masking the overarching problem – a lack of diversity and inclusion in higher education.  This problem stems from a variety of long-standing issues within minority communities including disparities in income and education, and higher poverty rates.

In many cases, a host of issues can hinder African-Americans and other minorities from attaining higher education.  A 2014 study conducted by researches at Florida State University and Vanderbilt University found that the gap in college completion rates is attributable to pre-college factors such as family resources, academic preparation and community context.  Socioeconomic status and the amount of college preparation that minorities undergo before attending college have also been historically lower.

Although Berkeley is being criticized for the way in which it is trying to implement diversity, our goal as a society should be to make education as inclusive as possible. 

In the end, it must be recognized that the absence of diversity in higher education is a problem that remains unresolved.  Although Berkeley is being criticized for the way in which it is trying to implement diversity, our goal as a society should be to make education as inclusive as possible.  Chief Justice Warren, in writing the opinion for Brown v. Board of Education recognized this crucial point. He stated that “[t]o separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

This concept should always be at the forefront of our minds going forward, just as it was nearly six decades ago during one of the most influential cases in our nation’s history.  Whether UC Berkeley will face legal troubles is yet to be seen, but similar policies in the past have caused litigation.

Kendra Alleyne, Associate Editor Emeritus
About Kendra Alleyne, Associate Editor Emeritus (17 Articles)
Kendra Alleyne is a 2017 graduate of Campbell Law School and served as an Associate Editor for the Campbell Law Observer during the 2016-2017 academic year. She is from Lynchburg, Virginia and graduated from Liberty University for a degree in Broadcast Journalism. Over the summer following her first year of law school, Kendra worked as a legal internship at Colon & Associates, where she is currently still interning. Kendra also serves as the Public Relations Chair for Campbell University’s Black Law Student Association.
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