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ABA to Set New Bar Passage Standards for Accreditation:

National Law Journal

In general, the change would create a quantitative rule requiring law schools to demonstrate that 75% of their graduates passed the bar exam or to show that their pass rates were within a certain range compared with other law schools in the same jurisdiction. The change is technically a new interpretation of an existing accreditation standard. Almost all states require law students to graduate from an ABA-accredited law school in order to obtain a license to practice.... At a hearing last month before the Accreditation Standards Review Committee about the change, several prominent lawyers and scholars expressed their disapproval. Among them was General Motors North America Vice President and General Counsel E. Christopher Johnson, who argued that a bright-line rule would hurt minority enrollment because it would deter law schools from accepting applicants with lower scores on the Law School Admission Test.

Johnson is probably right, though another possibility is that pressure would come to bear on state bars to make their bar exams easier (which, as someone who doesn't believe in bar exams to begin with, I think would be a good thing). Meanwhile, one can question whether schools whose minority students pass the bar at rates well below 75% are doing those students much of a favor by accepting them despite low LSAT scores that predict future bar passage issues, taking their tuition money, and then leaving half or more of them without a career as an attorney.

Thanks to Paul Caron at TaxProf for the pointer.

William Spieler (mail) (www):
Considering there are already states with a sub-75% pass rate (Virginia was 71% for the July '07 examination), I would imagine that the pressure would hammer the state bars. I can't imagine any state would like having its state law schools get deaccredited.
2.2.2008 11:36pm
Wondering Willy:
A massive controversy surrounding the South Carolina bar exam revolved, in part, around the new Charleston School of Law's accreditation and abysmal bar pass rates.
2.2.2008 11:45pm
theobromophile (www):
Even if you tailor the bar pass rate to the state, it would be horribly circular, especially if the state is intent of failing a certain percentage of people, regardless of how many people take it. This standard would basically shut down lower-tier law schools.


who argued that a bright-line rule would hurt minority enrollment because it would deter law schools from accepting applicants with lower scores on the Law School Admission Test.

Unlike undergraduate school, students who receive a degree do not benefit from the degree: they must first pass the bar; financial aid is often minimal; and the rate-limiting step is after graduation, not during admissions or a weed-out process for difficult majors.

I've often thought that it would make the most sense (if Prof. Sander is incorrect about mismatch) to have top law schools draw up minority candidates that are statistically in line for the top three of four tiers, and allow third- and fourth-tier law schools to have minimal minority enrollment.

For fun, here are the data for California law schools, based on race, sex, and type of accreditation.

As for the actual bar issue: states will find a way to regulate the number of attorneys in the profession. The bar exam provides a crude mechanism for that. (Of course, it supposedly helps with quality control, but I fail to see how accreditation can be meaningful if the graduates of an accredited school are not prepared to practise law.) Most likely, states will require large fees, tighten character and fitness requirements, or create administrative hassles in order to reduce the number of practising lawyers.

As for a uniform, national rule: wow, so much for federalism and state regulation of their professionals....
2.3.2008 12:31am
Kovarsky (mail):
david, can you explain why you think the students (as opposed to society in general) would bve better off if they were just rejected from law school to begin with?
2.3.2008 1:26am
DavidBernstein (mail):
They may or may not be as individuals. If they were told, "come here and you have a 35% chance of becoming an attorney," some might still choose to come. But such information is at best obscured, and at worst is blatantly lied about, lest it discourage enrollment. Given that, I'd say on the average if you have the choice of going into or continuing a career in education, business, government, or what have you, you're likely to be better off doing that then spending up to three years and prodigious amount of money in a likely futile quest to become a lawyer. (Note that be definition, all minority law students are at least college graduates, and thus have whatever career opportunities their college degree would give them, plus alternate graduate school options.) But again, if students were given full information on their statistical chances of success, and chose to pursue that option anyway, I'd defer to their judgment as to what is best for themselves.
2.3.2008 1:37am
Kovarsky (mail):
david

i have a lot of problems with your logic, but the most overriding one is this - why is whether the candidate becomes an attorney a measurement of whether they were better off from going to law school. to make the point as starkly as possible, they have a 0% chance of being attorneys if they don't go to law school.

presumably what you mean to say is that they waste money on acquiring an asset (a JD) for which they do not obtain the return they anticipated. and while i think that's what you mean, that strikes me as sheer speculation, and speculation that strikes me as counterintuitive to say the least.

if you say that the JD causes the marginal candidates somewhere less than 90K (almost certainly way too high a number), they almost certainly recover that money over the balance of their lifespan, even if they don't pass the bar.

i feel like all of this is fairly obvious, so i feel like i must be missing something.
2.3.2008 1:59am
Ilya Somin:
if you say that the JD causes the marginal candidates somewhere less than 90K (almost certainly way too high a number), they almost certainly recover that money over the balance of their lifespan, even if they don't pass the bar.

I don't see how these people will "almost certainly" recover their investment if they don't pass the bar. Maybe the JD will somehow benefit their career in other ways (even if they never become lawyers). But it's certainly not very likely that a JD will net them 90k or more even without passing the bar, much less "almost certain."
2.3.2008 2:34am
David M. Nieporent (www):
I'm with Ilya; I don't see how Kovarsky thinks that someone who goes to law school and can't pass the bar will "recover" the money they spent -- not to mention the opportunity costs of going to law school.

Where's the "return" on a JD, absent a law license, Kovarsky? I can't imagine too many employers are impressed by a JD on a resume with no bar admission. A legal education (*) likely doesn't have much utility for most non-legal employers, and any employer who's at all savvy will ask the question of why the applicant isn't a lawyer. So it won't help you get the job and won't help you do the job. What else is there?


(*) Setting aside the likelihood that someone who couldn't pass the bar probably didn't get a very good legal education anyway.
2.3.2008 3:10am
Law Student (mail):
Wow, what a sound objection, don't implement a policy that will likely benefit the entire profession because it may decrease the number of bar-failing minorities enrolled in 3rd and 4th tier law schools. I hope this guy isn't writing the logical reasoning portion of the LSAT.
2.3.2008 3:11am
Kovarsky (mail):
ilya,

i wasn't the one who made the intial claim. the entire idea that letting in subpar candidates is bad for those candidates because some fraction of them won't pass the bar was david's point.

i'm the only one trying to apply the slightest logical rigor to the process. frankly, i don't even think the argument should be about whether the ones who don't get licensed ultimately amortize the 90K (a figure that i artificially inflated anyways). the relaxed standards for the group might be worth it - from the perspective of the group - even if some didn't make up the 90K.

to be clear - i don't really have a problem with the broader idea expressed in the post, but i have problems with the analytics that seem to underlie the claim that the group of marginal admitees is necessarily better off not getting admitted. the collective response from you and david seems to be that "well, some of fraction that don't get licensed won't recoup the 90K because the JD helped them do something else." not only is that, i think, a rather small part of the point, but it's the entire premise of david's point and lacks any empirical support whatsoever.
2.3.2008 5:26am
Kovarsky (mail):
I'm with Ilya; I don't see how Kovarsky thinks that someone who goes to law school and can't pass the bar will "recover" the money they spent -- not to mention the opportunity costs of going to law school.

I'm with myself; I don't see how <>Kovarsky thinks that you can show that it is not true that someone who goes to law school and can't pass the bar will recover the money they spent.
2.3.2008 5:29am
Mr. Liberal (mail):
There are definitely too many lawyers.

Despite that, I think the bar exam is ridiculous, having very little to do with the practice of law. If it is supposed to limit the number of lawyers, it is doing a horrible job.

The problem of not enough opportunities to become a lawyer for minorities needs to be addressed by government programs (like vouchers?) that increase the number of opportunities for minorities before law school.
2.3.2008 6:42am
DavidBernstein (mail):
"the collective response from you and david seems to be that 'well, some of fraction that don't get licensed won't recoup the 90K because the JD helped them do something else.'"

No, you've missed the point entirely. It's not that the JD helped them do something else; it's that without the JD, they would have been doing something else, and they wasted three years (look up: "opportunity costs") and 90K pursuing a law career instead. Not to mention the demoralization costs.

Perhaps it's true that some fraction of those who don't pass the bar would want the JD anyway, will recover their costs, and will still be better off if they didn't have the JD. That goes back to what I said earlier: give them full information in advance, along the lines of "people with your LSAT who graduate from our law school have a __% chance historically of passing our state bar." This can be given to all students, for that matter. The group (which I think is quite small, but Kovarsky thinks otherwise) that wants the JD regardless won't care. The much larger group that goes to law school because they want to practice law can then have more information.

BTW, contrary to the tenor of Kovarsky's comment, the ABA's own accreditation guidelines currently prohibit law schools from admitting students who they think won't succeed in making it through law school and passing the bar. But the guidelines also state that this should not be interpreted in a way to discourage "diversity". So the ABA's current position is that white students are not to waste their time and energy on law school if they are unlikely to succeed, but law schools are encouraged to essentially defraud minority students.
2.3.2008 7:58am
Happyshooter:
E. Christopher Johnson is a professional diverse. Everything he has gotten has been the strength of his race and being an okay to good lawyer.

Saying he is concerned about black lawyers and law students is like saying water is wet--a true fact but nothing worth noting.
2.3.2008 8:47am
FantasiaWHT:
My question is what will it do to Wisconsin with its diploma privilege? (I read somewhere that New Hampshire will be joining Wisconsin this year, anybody know if that's true?)
2.3.2008 9:06am
JohnAnnArbor:

but law schools are encouraged to essentially defraud minority students.

Probably only "underrepresented" minorities, if the schools follow their normal pattern.
2.3.2008 9:17am
JRL:
I propose a 5 year freeze on failing anyone who takes the bar exam!
2.3.2008 9:32am
Kovarsky (mail):
is your ankle getting a little better?
2.3.2008 10:23am
Rego park 4:
I wonder what would happen if Pat Robertson' law alumni would be required to have IQ < 50?
2.3.2008 10:33am
Kovarsky (mail):
david,

look up: "opportunity costs"

ok, look up "data."

i hardly think that tone was necessary. usually it's the lsapses in civility of other commenters that make me quit a thread, but congratulations, you're quite the auteur at times.

by the way, instead of carelessly invoking the idea of "opportunity costs," i'd think for a second about what it is that someone who applied but did nto get into one graduate discipline might be doing with that time. guess what - they usually go back to school in another discipline. of course, you could accuse me of having no data on that, and that response would be rich . . .
2.3.2008 10:33am
Oneell (mail):
Here's what I don't quite get:

That goes back to what I said earlier: give them full information in advance, along the lines of "people with your LSAT who graduate from our law school have a __% chance historically of passing our state bar."


I didn't pay too much attention to the application process while I was applying, but my understanding was that most schools admit students that are generally in a pretty narrow range of LSAT scores... Like ten points or so... Since bar passage rates are pretty easy to find (they're like the first thing you see in the rankings) don't we already see what the chances are? I mean if you are getting accepted to X school you probably have an LSAT that is nearly identical (statistically) to most everyone else in the school... Whatever the school's bar passage rate is, is probably what your chances are... Que no?

I suppose the exception would be for those students who somehow get into schools with LSATs significantly lower than the norm at that school, but I haven't run into any of those... A handful of kids with scores higher than the norm who chose based on scholarship $$$, but not many, if any, with deviantly low scores...
2.3.2008 10:35am
b.:
Re: Recovering the total cost of a J.D. for underachieving law school grads

Contract work in major metro areas pays quite well, I hear, even for those not admitted to a state Bar. J.D.s who are willing to hop from one job to the next the whole year through can make close to six-figure salaries in NYC.

Paralegals are also well-paid in many markets.

A wage earned at either job should be more than sufficient to cover the 3-year tuition and opportunity costs at all but the most expensive law schools. Many state schools, moreover, are quite the bargain for newly-minted grads working as contractors or paralegals.

Few applicants to or students at law school are likely to aspire to either of these jobs; but neither do many average students/applicants aspire to insurance defense work; nor do many excellent students/applicants aspire to document review at AmLaw 100 firms.

I agree that a greater quantity and quality of data should be made available to law school applicants about bar passage rates and employment prospects, but I reject the notion that all of one's dreams need be fulfilled in order to justify a stint at law school.
2.3.2008 10:42am
Zyzzogeton:
David Bernstein says he doesn't "believe in bar exams". I don't believe in law schools. Just make the bar exams, MUCH MUCH tougher than they are, and allow anyone who can pass such a very tough bar exam, and demonstrate the requisite good character, to be admitted to the bar. The benefits are that eliminates the waste of time and resources in law school, and there would be fewer lawyers since only the very bright would be able to pass. Of course, that would never, never, never happen.
2.3.2008 11:17am
theobromophile (www):
if you say that the JD causes the marginal candidates somewhere less than 90K (almost certainly way too high a number), they almost certainly recover that money over the balance of their lifespan, even if they don't pass the bar.


I'll fight you on the $90,000 figure. Is that tuition alone, or does it include the living loans that people have to take out, unless they want to be homeless and eat at the local soup kitchen? While they would have these expenses anyway, they would, absent law school, have a job that would pay them and would not be paying interest on the money it takes to buy spaghetti and pay rent. (Currently, Stafford PLUS loans have a 3% loan origination fee and are, I think, at 8.25% interest.)

I once looked up the cost of tuition, room, board, etc. at the top group of law schools. (While there are some state law schools that are less expensive - UF, at approximately $9,000/year for tuition, comes to mind - even third tier schools are in this cost range.) Data are here.

End result: even for public law schools, students will take on approximately $130,000 worth of debt. For privates, that number is closing in on $200,000. Off the top of my head, in 1994, the average white student had about $46,000 in loans, and the average black student, $65,000.

That is before interest, and that does not consider the time value of money (i.e. money earned in 2008 that is not used to pay off loans may be invested). Frankly, there is no way you can say that a J.D. always pays off, especially if the student in question does not pass the bar.

I mean if you are getting accepted to X school you probably have an LSAT that is nearly identical (statistically) to most everyone else in the school... Whatever the school's bar passage rate is, is probably what your chances are... Que no?


Your LSAT is probably similiar unless you are an underrepresented minority, in which case it is about five or ten points lower than average. Law schools know that, below a certain LSAT, the student's chances of passing the bar drop dramatically. Be it a matter of aptitude, drive, or ability to take multiple-choice exams, it is still there.

Blacks are four times as likely to not pass the bar on the first attempt compared to their white peers and are six times as likely to never pass. This holds true across all schools. Again, for fun, look at the California data I posted above. For first-time test takers, black students have a pass rate of about twenty-five percentage points below their white peers at similar institutions.
2.3.2008 11:38am
MDJD2B (mail):
The ABA can't implement this reform fast enough for me!

(Conflict of interest warning: I'm planning to take the Bar exam in 2 states this July.)
2.3.2008 11:56am
Jim at FSU (mail):
Translated to English:
"No more black law schools."

Here in Florida, FAMU Law was created explicitly for the purpose of "making more black lawyers in Florida." They have soaked up millions of dollars from the Florida government to this end. Their student body is heavily black and has a bar passage rate somewhere in the 50-60 percent range (even more embarrassingly, a lot of the passing students have been white). Guess who isn't getting accredited?

75% bar passage requirement is going to make it a lot harder for new schools to have affirmative action programs because every student they let in despite lower qualifications is going to go straight to their their bar passage rate.

I personally don't understand why "diversity" is prestigious for a law school but "high bar passage rates" are not.
2.3.2008 12:00pm
v_site:
I am currently a law student. I do not know if the bar exam system needs to be changed. However, I will admit being puzzled by the bar exam system.

Unlike undergraduate school, students who receive a degree do not benefit from the degree: they must first pass the bar; financial aid is often minimal; and the rate-limiting step is after graduation, not during admissions or a weed-out process for difficult majors.

This paragraph got me thinking about the medical exam system. In talking with friends who went to medical school, I was struck be the multistep process for passing their exams and getting licensed. http://www.nbme.org/index.html

Maybe law schools need to do the same thing. Bar exam step 1 after first year of law school based on traditional common law courses. Bar exam step 2 after second year of law school based on upper division law courses. Bar exam step 3 after working as a lawyer for at least one year. (Of course, this step would require the Law to recognize that newly minted law students should probably not be thrust on the public until the recent students have learned some practical applications of the law. A more likely alternative is that Bar exam would be two steps: after first year and third year of law school.) Pass all three parts (or possibly two parts) and you pass the bar. Fail a part and you slow down the process. And if you fail early on, you may reconsider whether you can handle the Bar exam and cut your losses by dropping out.

As for whether law school attendance should be required in order to take the Bar exam steps, I leave that discussion for others.
2.3.2008 12:10pm
Benjamin Davis (mail):
I am skipping all the comments here as I expect them to say many things we have seen before. I want to bring up a comment of the Dean of McGeorge Law School (Elizabeth Rindskopf) that the legal profession is the least diverse profession with only 4 per cent African-Americans and she was terribly embarassed about this. Then Dean Grossman of American University pointed out that the US News and World Report has schools report diversity but does not put that into the calculation for purposes of ranking. This was during sessions at the American Association of Law Schools in January. If you get no benefits for being diverse and the profession is so profoundly pale in comparison with other professions then you get what you see you are getting. The ABA standard is more of the same of using "standards" to make sure the bar is set high enough so that significant numbers of blacks can not get in. It's just back to good old tokenism.

Finally, if everything is so hunky dory ( a la Chief Justice Roberts terrible opinion this past term in the Seattle and Louisville cases) in this country I must assume that the content of Obama's character is the only issue in voter's minds - particularly white voters but also black voters and Latinos and Asians - not the color of his skin. If that was the case I guess Andy Cuomo's "shuck and jive" comment or the comments of Rangel and Johnson (racial code in blackface) should be ignored. I also have a bridge in Brooklyn for sale.

If race is still part of the mix for black people, then affirmative action should be part of the mix. And please no more paternalism about blacks who fail law school. People take the shots they are accorded - some win, some lose. But I have never met someone who regretted getting the shot.

To give you an idea of how recent all this really is this is the 60th anniversary of the Ada Sipuel v/ University of Oklahoma in which she had to fight to have her dream which was to study at the University of Oklahoma Law School as a black woman. 60 years. For a 52 year old, that is like yesterday.

Peace,
Ben
2.3.2008 12:35pm
neurodoc:
I suppose the exception would be for those students who somehow get into schools with LSATs significantly lower than the norm at that school, but I haven't run into any of those...
Wouldn't this rule operate something like those team salary caps in pro sports, or perhaps the inverse thereof? The better schools will always be comfortably higher than whatever bar pass rate may be chosen as the cut point, and thus free to take a good number of individuals with low LSATs and less likelihood of eventually passing the bar. It will be the schools far down the food chain that will have to be more selective, denying admission to those with poor prospects of becoming attorneys, that is if they can attract enough relatively strong students for the school to continue in business.

Do law schools disclose enough about the LSATs and GPAs of those who matriculate that one can know how many weak (defined by LSATs and GPAs) students there are in one of their classes? Perhaps people share LSAT scores with some of their friends, but I can't imagine personally surveying one's classmates to find out who among them may have had significantly lower LSATs ("...LSATs significantly lower than the norm at that school, but I haven't run into any of those...").

Now at the risk of embarassing myself - was I a "lawyer" the minute I graudated law school and only an "attorney" months later when I was notified I had passed the bar? Black's makes no such distinction, but I have heard some do so. DB speaks of a "futile quest to become a lawyer," so if his usage is correct, then a law school diploma doesn't make one a "lawyer," only passing the bar will do that, and there is no difference between "lawyer" and "attorney"?

I am reminded of the joke riddle: Q. What do you call the person who graduates last in his medical school class? A. Doctor. But that joke/riddle won't work for law schools, will it? Any thoughts about why it should be that US medical schools flunk out so few students these days, and very, very few US medical grads fail to pass state licensure exams, while that isn't the case with law schools and bar exam pass rates? (50 years ago, the dean often greeting the entering medical school class and told the students in front of him, and it was always a "him," to look at the students sitting to their right, their left, and behind them, one of whom wouldn't be around 4 years later at graduation time. My father recalled that very clearly. Hasn't been that way in medical schools for decades, though.)
2.3.2008 12:40pm
Wondering Willy:
Ben,

So what's the solution to the fact that blacks appear to do much worse in academic arenas than whites? At the end of the day, if black people are underrepresented in law because they are not, as a group, as capable, then shouldn't the solution be to try to figure out the reason for this underachievement and address that?

As a student at a second tier law school, I noticed the effects of affirmative action quite plainly. Very few of the black students in my class were even close to the top, because all the black students who would have been that good were sucked upwards to a fist tier school via affirmative action, where they were no doubt fair-to-middlin' as opposed to at the top of the class.

Why do so many people fail to understand that affirmative action is such a bad idea precisely because of this mismatch problem?
2.3.2008 12:49pm
DavidBernstein (mail):
Kovarsky, if "tone" concerns you, you shouldn't have written "i'm the only one trying to apply the slightest logical rigor to the process."
2.3.2008 12:50pm
Wondering Willy:
Neurodoc,

My personal opinion is that a J.D. makes one a lawyer/attorney/esq., but an unlicensed one until bar admission. However, I believe there are some unlicensed-practice-of-law decisions in some states that go the other way, saying that holding yourself out as a lawyer prior to licensure is a no-no.

I cannot imagine, though, that there are any cases out there where an unlicensed J.D. said "I'm a lawyer" but did no legal work and was still jacked up for the unlicensed practice of law or something similar.
2.3.2008 12:52pm
Craig Oren (mail):
One of the difficulties -- not the only one, to be sure -- is that, at least in my observation, law school professors have become more reluctant to give low grades. That means that virtually everyone admitted to law school gets through, even if he or she should have been screened out sometime during law school.
2.3.2008 12:57pm
Craig Oren (mail):
I meant to add one more thing: that emphasis on bar exam #'s may well lead law schools to turn the last semester of law school into a bar review course. But that not only takes away a semester that could be learning new subjects, but it also puts pressure on the teachers in the first five semesters to emphasize bar preparation. As a Property teacher, I would not like this. I don't want to recite rules of law; true, I want to cover them, but I am much more interested in getting students to read cases carefully and to think cogently about issues. OK, two straight postings are enough!
2.3.2008 1:00pm
DavidBernstein (mail):
I didn't pay too much attention to the application process while I was applying, but my understanding was that most schools admit students that are generally in a pretty narrow range of LSAT scores... Like ten points or so... Since bar passage rates are pretty easy to find (they're like the first thing you see in the rankings) don't we already see what the chances are? I mean if you are getting accepted to
X school you probably have an LSAT that is nearly identical (statistically) to most everyone else in the school... Whatever the school's bar passage rate is, is probably what your chances are... Que no?

I suppose the exception would be for those students who somehow get into schools with LSATs significantly lower than the norm at that school, but I haven't run into any of those... A handful of kids with scores higher than the norm who chose based on scholarship $$$, but not many, if any, with deviantly low scores...
When it comes to "diversity" admittees, many students are in fact admitted with LSATs significantly lower than the norm. You can get an idea by reading the district court opinion in Grutter, which recounted the stats at U. Mich., and you can then extrapolate to the pool available to lower-ranked schools. Law schools beyond the top ones (which get the best students of all backgrounds) are aware that if they admit students with an LSAT below "X", the chances of bar passage are very low, and they admit them anyway, to satisfy "diversity" requirements.

Ben: "If race is still part of the mix for black people, then affirmative action should be part of the mix. And please no more paternalism about blacks who fail law school. People take the shots they are accorded - some win, some lose. But I have never met someone who regretted getting the shot." I have. But either way, do you object to giving students an idea of how good their "shot" is in advance? If your law school knows that students with, say, 142 on their LSATs historically have an 18% chance of ultimately passing the bar, should such students be admitted anyway, and without any warning?

I've noticed that none of the defenders of current practices ever want to answer the question as to whether if current practices indeed benefit their supposed beneficiaries, why law schools won't, and should not be required to, reveal the success rate of these practices.
2.3.2008 1:11pm
Zathras (mail):
The 2 possibilities mentioned is that either lower schools lose accreditation or the bar exams get easier. There is a third possibility that several of the lowest schools already do: flunk more students. A few of the lowest schools admit a lot of students, take their tuition for a year or two, and then flunk out half the class. That way, those students do not effect the bar pass rates, and the schools get the tuition money. With these bar passage requirements, more schools will probably go to this model.
2.3.2008 1:15pm
v_site:

I meant to add one more thing: that emphasis on bar exam #'s may well lead law schools to turn the last semester of law school into a bar review course. But that not only takes away a semester that could be learning new subjects, but it also puts pressure on the teachers in the first five semesters to emphasize bar preparation.

Some schools are already taking the law school as bar review route by requiring classes during the second year based on bar exam topics. Of course, students will probably still do BAR/BRI, etc. because the "cost" of failing the bar is too high to risk not passing.

BTW, can anyone provide me with a reason/reference why this 75% bar passage rate should be the gold standard, not some other percentage? It seems that me that an exam given AFTER students successfully complete law school should have a 98% or higher passage rate. If not, what was the purpose of law school in relation to the bar exam?
2.3.2008 1:21pm
TerrencePhilip:
I meant to add one more thing: that emphasis on bar exam #'s may well lead law schools to turn the last semester of law school into a bar review course. But that not only takes away a semester that could be learning new subjects, but it also puts pressure on the teachers in the first five semesters to emphasize bar preparation.

Craig,

I don't know about the effect this might have on the first 2 years, but the third year of law school is widely known to be a bore for most students; perhaps something practical like a systematic focus on the bar exam would be a good thing.

As for the subject of David's post: upping the pressure on law schools wrt bar passage certainly would hurt minority admissions, which is why I have a hard time believing this change will be implemented. Some state bars might play along by dropping failure rates but I wouldn't count on that effect being too large- state bars have a host of other concerns, some legitimate (if 35% of what you grade is just not lawyer-quality work, why should you harm the the public by pretending otherwise?) and some illegitimate (i.e. protectionism and limiting entry). The 75% rule could be the end of a number of historically black law schools.
2.3.2008 1:34pm
Brian G (mail) (www):

but law schools are encouraged to essentially defraud minority students.


Just about all of the minorities at my law school especially the really preferred ones didn't pay dime one to go to law school. I would love to know the correlation between race-based free rides and bar failure.
2.3.2008 2:10pm
Benjamin Davis (mail):
The solution is doing a better job of educating poor blacks and poor people generally (both family and society doing a better job). That costs money, time, and commitment in a way that I simply doubt there is enough political will in this country. As a graduate of Phillips Exeter Academy and comparing that to the public school to which my son goes, it is like two different planets. Fortunately for some but not enough, those elite schools are still making the effort to bring in students of promise "from every quarter" to benefit from an extraordinary education and have a chance to get on an accelerated track in their life.

Then doing a better job of hiring people and a better job of preparing them for promotion, promotion etc. The obvious advantages of some (Mitt Romney son of a three term governor, John McCain son of the head of the Pacific fleet and grandson of an Admiral - all at times when it was simply impossible to imagine a person of color anywhere near those positions) should make us aware of just how steep a climb it is. I was fortunate to be the son of an extremely rare black foreign service officer that made it easier for me to make the transition quickly.

But, centuries of hostility towards significant presence in intellectual activity by blacks is still being overcome.

Ending residential segregation would be another way, but I know that is not going to happen in my lifetime.

Since there is no political will, we have the modest figleaf of affirmative action. Far too little, but the best we can do in a country that has a hard time addressing in anything other than an ad hoc manner by private charity - issues of racial, economic and social disparities. Some call these issues of racial, economic and social justice.

Best,
Ben
2.3.2008 2:21pm
Houston Lawyer:
The implementation of this should be interesting. In Texas, only Texas Southern University (Thurgood Marshall School of Law) doesn't meet this standard. This is the only majority minority law school in the state. I can't imagine that the ABA will actually enforce this standard in such a way as to shut them down.
2.3.2008 2:25pm
Wondering Willy:
Ben,

You speak of students of promise from every quarter being admitted. Is it really your contention that law schools discriminate against minority "students of promise"? Or are you saying that the black kid with a 140 LSAT is a "student of promise" while the white kid with a 140 LSAT needs to consider being an assistant manager at Walmart instead of law school?

And why should law schools (and law firms and, ultimately, clients) pay a price by having incompetent students and lawyers who got where they are primarily because of the color of their skin? Law schools and law firms and clients are not the reason that poor people don't get good primary and secondary educations, so why should they have to pay for it in the end? If it turns out that blacks (or whites or Asians or insert socio-racial-ethnic classification here) are disproportionately unqualified to be lawyers, why is it incumbent upon the legal profession to do something about it?
2.3.2008 3:07pm
A (mail) (www):
This is not only a great idea, but necessary to prevent the growth of for-profit law schools that are stealing many from kids who think they will have a chance at making 150k a year coming from Cooley Law School.
2.3.2008 3:12pm
David Friedman (mail) (www):
It seems to me that there are two different mistakes one would like law schools to avoid:

1. Admitting students who won't benefit from admission and probably won't pass the bar, in order to raise the racial diversity of their student body.

2. Rejecting students who will benefit from admission but will still have a lower than average chance of passing the bar, given where they are starting from, in order to raise the school's bar passage rate.

Hence it seems to me that if you are going to have accrediting standards, they ought to be based on some measure of "value added" rather than "quality of graduates" (as measured by bar passage rates). The fact that a school can get a student who starts at the 99th percentile LSAT to pass the bar isn't much evidence that it is worth going to.

My conclusion is that if the ABA is going to set standards along these lines they should be based on both bar passage rates and entering LSATs. Ideally, they could run a regression for each state with LSAT as the independent variable, bar passage probability as the dependent variable, and so find, on average, the probability that a student who starts with a given LSAT will end up passing the bar.

Using the results of that regression, they calculate what the bar passage rate ought to be for a given class at a given law school if it is providing an average education. If the actual rate is more than a fixed amount below that, the school doesn't get accredited.

That way accreditation provides the information that matters to the student--how much more likely am I to pass the bar if I go to this school or that?

Of course, I also have reservations about other parts of the system--but at least, if they are going to do this part, they ought to do it right.
2.3.2008 3:34pm
Oneell (mail):

When it comes to "diversity" admittees, many students are in fact admitted with LSATs significantly lower than the norm. You can get an idea by reading the district court opinion in Grutter, which recounted the stats at U. Mich., and you can then extrapolate to the pool available to lower-ranked schools. Law schools beyond the top ones (which get the best students of all backgrounds) are aware that if they admit students with an LSAT below "X", the chances of bar passage are very low, and they admit them anyway, to satisfy "diversity" requirements.



That's interesting... I'd never read the dist. court opinion... It's a lot more interesting with the stats...

I agree that schools should have to make all their data available to prospective students. It's not really fair to ask students to make a six figure commitment without giving them a clear picture of what they're getting. I don't think, though, that pulling these schools' accreditation is the right thing to do... If a guy with a low LSAT score wants to go to law school, despite the substantial risk that he will not pass the Bar, who am I to say he shouldn't get a shot at it... As long as he's making an informed decision, he should be able to pay his tuition and give it a try...
2.3.2008 3:38pm
ERH:
This is an incredibly stupid idea that only goes to show the ABA is really really worried about the Dept. of Education taking some serious action in regards to accreditation practices. To apply the same standard to those taking the New York Bar as to those taking the Georgia Bar, ignores the real difference in difficulty between the two.

Here's a short list from ILRG of schools that would fail the 75% test.
U. of Arkansas-Little Rock
Pepperdine University
U. of Wyoming
Loyola Law School
St. Mary's University
U. of San Francisco
New York Law School
Willamette University
New England Sch. of Law
U. of California-Davis
West Virginia U.
Catholic U. of America
Pace University
Gonzaga University
Cleveland State U. (Marshall)
Appalachian School of Law
Thomas M. Cooley
U. of Denver
Hofstra University
U. of Nevada-Las Vegas
Syracuse University
U. of Detroit Mercy
Howard University
Duquesne University
Southwestern Univ.
Regent University
Widener University
Western New England
Touro College (Fuchsberg)
Vermont Law School
Santa Clara University
U. of Baltimore
U. of the Pacific (McGeorge)
Arizona State University
Nova Southeastern University
Texas Southern University
Northern Kentucky U. (Chase)
CUNY-Queens College
California Western
Franklin Pierce Law Center
Roger Williams University
Barry University
Chapman University
St. Thomas University
U. of the District of Columbia
Golden Gate University
Thomas Jefferson
Whittier Law School
Southern University
Western State University

Let's face it, the ABA would be in court faster than you could say injunction if they tried to pulling these schools accreditation.
2.3.2008 4:20pm
Tony Tutins (mail):
ERH raises a good point: different states have higher or lower pass rates. Given a one-size-fits-all standard, to maintain ABA accreditation, California schools might require that their "at-risk" students take the bar in Illinois, for example.
2.3.2008 4:31pm
Skyler (mail) (www):
Am I alone in wondering what the heck the federal department of education has to do with graduate level accreditation?
2.3.2008 4:44pm
Skyler (mail) (www):
ERH, I can't speak for the other schools, but St Mary's has about an 83% or 84% bar passage rate.
2.3.2008 4:45pm
TerrencePhilip:
ERH,

are you saying there are valid legal grounds to strike down this rule if it is adopted? What would that be?
2.3.2008 4:47pm
David Friedman (mail) (www):
Different posters seem to disagree about what the bar passage rates of specific schools are. One possibility is that some of them are looking at what fraction of students pass the bar exam the first time they take it and others at what fraction eventually pass it. I gather both criteria have been considered in various versions of the ABA proposal.
2.3.2008 5:04pm
DavidBernstein (mail):
Skyler, for students to be eligible for federal student loans, the school must be accredited by the agency given the power to do so by the DOE. In the case of law schools, that is the ABA.
2.3.2008 5:07pm
ERH:
TerrancePhillip,
I think we both know that lack of legal grounds has all too rarely stopped someone from filing a suit. But I can easily imagine a school or student arguing that you should not apply the same bar passage standards to California and Wyoming.

Skyler,
You may be right. As I said these numbers were from a single source.
2.3.2008 6:24pm
Stephen M (Ethesis) (mail) (www):
I fail to see how accreditation can be meaningful if the graduates of an accredited school are not prepared to practise law

If they were told, "come here and you have a 35% chance of becoming an attorney," some might still choose to come. But such information is at best obscured, and at worst is blatantly lied about, lest it discourage enrollment.

The solution is doing a better job of educating poor blacks and poor people generally (both family and society doing a better job). That costs money, time, and commitment in a way that I simply doubt there is enough political will in this country. As a graduate of Phillips Exeter Academy and comparing that to the public school to which my son goes, it is like two different planets.

It would be nice if kids graduated from law schools thinking like lawyers. It usually takes them 4-6 years out from law school before they do, or before they are qualified to handle things unsupervised.

The only thing a law school graduate can do unsupervised a year or so out of law school is teach law school.

It would be nice to see a complete change in legal education so that like doctors or nurses or other professionals, those who pass the bar exam could actually be considered competent to handle legal tasks on their own without supervision.

If there were true, placement of graduates would be a lot easier.

I'm impressed, btw, about the data as to NYC's contract law payments. The poster is saying that even flunking the bar exam one can break $100k. Given that law employment is bi-modal, with the second peak well below $100k, I'm surprised there isn't a rush.

Locally, contract lawyers are independent contractors, paying all of their own taxes, Social Security, etc., no benefits and most top out at about $60k a year. Only top 25% of the class, top 50 law school, several years of experience and a bar license, last time I talked to a friend who was recruiting them. New York is definitely a different market.

Though I've known several paralegals making $20k to $30k a year who had law degrees. So there is employment there with a JD and no bar license, but it didn't look too attractive to me.
2.3.2008 8:17pm
A (mail) (www):
You people can't read. It explicitly states "or to show that their pass rates were within a certain range compared with other law schools in the same jurisdiction." The 75% will obviously never happen; there will definitely be comparisons to the states average bar passage rates. Schools that do much worse than the state average will and SHOULD lose accreditation.

There are FAR too many new law schools that have recently been accredited--schools that should never have been accredited but the ABA loosened their policies. There are too many lawyers, too many law schools, and too much deception being delivered by fourth tier law schools who charge more per year than their graduates can even earn!

WAKE UP PEOPLE
2.3.2008 8:25pm
anon3470587 (mail):
More fallout from Loyola 2L (law blog celebrity, Wall Street Journal lawyer of the year for 2007, Above the Law blog lawyer of the year for 2007.)
2.3.2008 8:34pm
Tony Tutins (mail):

Schools that do much worse than the state average will and SHOULD lose accreditation.

The world does not work like Lake Wobegon. Half the schools perform below average. Eliminating the bottom tier will cause formerly above average schools to fall below the average. Based on historical performance, eventually the only ABA school left in California will be Stanford: the mean median and mode school, as well as the best and the worst.
2.3.2008 8:41pm
Waldensian (mail):

There are definitely too many lawyers.

The suspense is terrible. Are you going to tell us how many lawyers we SHOULD have? What's the methodology for figuring that out?
2.3.2008 9:20pm
David M. Nieporent (www):
I'm with myself; I don't see how Kovarsky thinks that you can show that it is not true that someone who goes to law school and can't pass the bar will recover the money they spent.
Cute, but I see you don't explain the mechanism for how they will recover the money. Going to law school and not passing the bar is about like spending three years of one's life lighting piles of money on fire. How exactly do you "recover" that? I discussed two ways:

* Getting a better job because one has a JD on one's resume.
* Doing a better job (and hence getting raises, etc.) because one has a legal education.

Which do you think applies? Or do you have an alternate theory?
2.3.2008 9:38pm
tvk:
Well, this certainly poses interesting disparate impact problems. If you are the worst law school in an "easy" jurisdiction (e.g. South Dakota), you'll easily pass the 75% threshold. If you are a somewhat below median (but not very far below) school in a "hard" state such as California, you're toast.

And once we start disaccrediting the low performers in California, we raise the median among the remainder, so a vicious cycle begins. Someday, UC Davis (76% pass rate) will be the worst law school left in California.
2.3.2008 10:51pm
Wondering Willy:
It strikes me that Mr. Bernstein's comments about "value adding" points to the best method for accreditation. The best solution here would be to do away with government loans entirely, do away with the requirement most states have that a person attend an accredited law school as a prerequisite to licensure, and let the free market take its course.
2.3.2008 11:46pm
Benjamin Davis (mail):

Ben: "If race is still part of the mix for black people, then affirmative action should be part of the mix. And please no more paternalism about blacks who fail law school. People take the shots they are accorded - some win, some lose. But I have never met someone who regretted getting the shot." I have. But either way, do you object to giving students an idea of how good their "shot" is in advance? If your law school knows that students with, say, 142 on their LSATs historically have an 18% chance of ultimately passing the bar, should such students be admitted anyway, and without any warning?

I've noticed that none of the defenders of current practices ever want to answer the question as to whether if current practices indeed benefit their supposed beneficiaries, why law schools won't, and should not be required to, reveal the success rate of these practices.



Yes I object to giving someone the proverbial "idea" of how good their shot is ahead of time. I am not god.

First, anyone who takes the LSAT would know the scores run from 120-180. So someone with a 142 I believe would think that they are at some risk of not being admitted to any law school, at some risk even if they are admitted of not making it, and at some risk if they make it of not passing the bar.

Second, if they apply, that 142 for me personally is not enough to determine what is going on with that student applicant. This position is partially due to a presentation I heard in 2002 or 2003 from a high LSAC representative which led me to understand that the LSAT scores were correllated (spelling? sorry it is late) positively with higher family income. Put another way, richer kids tend to get better scores. So if it is a rich kid with a 142 or a poor kid with a 142 I look at it differently. If it is a poor kid who has a UGPA that is high that would influence me thinking about them. They would seem to have discipline and grit. If they took on a difficult major and even had a lower UGPA that would influence. I would know the life experiences from the essays the student wrote. If the student wrote me a compelling essay with that 142 and an appropriate UGPA I would be willing to make a pitch. If I saw something "special" (whatever that means) I would pitch the committee to give them a shot. The committee in the environment of the US News and World Report might not be willing to take that shot and I would lose. And increasing the number of minorities in the profession would be something that would concern me. But if the committee were willing to go along with my pitch and vote the person in, then if they sought me out, I would tell the person that I saw something special in them and they have to work extra hard to make it but they are getting their shot. They determine whether their shot works for them not some numbers or percentages. But otherwise I would give them the same experience as everyone else in my class.

Maybe my aversion to that kind of information being handed out comes from an experience freshman year at Harvard College. I was unsure what I wanted to do in life and thought it would be good to take a test offered by the Office of Career Services that would help you identify your "aptitudes". I do not remember what my aptitudes were, but I remember the person from the Office of Career Services telling me that because I had taken the test I was X per cent likely to graduate summa cum laude. Apparently taking the test reduced my percentage as compared to those who had not taken the test. I found the pre-determination aspect of that repugnant. It reminds me of GATTACA - a wonderful movie where at birth the life chances for everything are determined. Ethan Hawke is destined to be a street sweeper but ends up being an astronaut - his dream.

Michelle Obama talks about this in her standard stump speech. People told her she could not graduate from Princeton and I believe she says she graduated with honors. She also said that people told her her test scores were too low for law school but she has been a lawyer and passed the bar and worked as a lawyer (I think that is where she met her husband). Over the centuries there have been people (always for our own good) that tell African-Americans are not good enough, or grades are not good enough, or scores are not good enough. Yes, just like in all groups there are those for whom that is true. But, there are others who have something special come off them and for one or another reason, someone with the power to do it gives them a chance to take their shot. That has happened to me many times when hundreds of applicants equal or better according to this or that criteria were also competing. I appreciate those people who took a chance on me.

Also, please understand too that there is a fundamental imperative given American history that people have perceived very clearly since at least 1960-61 to integrate the legal profession. And in the present state of the United States that will include affirmative action for the reasons I described above.

So I see no purpose in using my authority as a representative of a law school to discourage someone in pursuing their dream even with their 142. I think the 142 on its own would be discouragement enough. But, if they can tell me a compelling story, I am willing to give them a look.

I regret that the US News and World Report has the effect of indirectly suppressing the dreams of people through the competition for ranking of law schools that does not give a real damn about this need to integrate the legal profession.

Finally, if the person who has the 142 has a family willing to give the school $500 million, should I vote to admit them? Here it is clearly not on merit, but it is on the fact they are rich. Should that happen? Maybe not? Does it happen? Of course, I think there is a book on this. Is it unfair? Yeah it is but schools need money. As Booker T. Washington was famously quoted in asking about whether Tuskegee Institute would accept tainted money. He said, "t'aint enough of it." Obviously I am making a joke but I am also pointing out that people can get into schools with 142 LSAT's for many reasons so do not think 142's admitted to law schools are reserved only for African-Americans.

As to letting people know those percentages, I would suggest David that you put the basis for those numbers up on a website and people can google them to see your take on their chances based on LSAT.

I prefer to tell people to send me their compelling story so I can consider them. If you do not apply, you never know if you can get in. I am not one to encourage self-censorship or self-exclusion. Too many people have encouraged that for too long, especially for African-Americans through incredible efforts to discourage.

I will put up on my faculty website tomorrow under historical documents a letter my uncle received from Carnegie Mellon trying to discourage him from applying to the drama school in 1942 (always done with good intentions). Just look at the UToledo College of Law faculty page for me and scroll down to historical documents tomorrow afternoon looking for "George Corrin 1942"

Best,
Ben
2.4.2008 12:03am
ReaderY:
I don't usually comment on law school issues, but it does seem to me that having multiple sets of exams, with one right after the first year, would be valuable. It would let marginal candidates, and their schools, know their status earlier and make a more informed decision about what to do.

Most other professional schools have multiple exams which include an early indicator. Graduate schools generally have a set of qualifying exams after the first year or two which weed out marginal candidates. Actuaries have a long series of exams. Etc.
2.4.2008 12:32am
theobromophile (www):

Most other professional schools have multiple exams which include an early indicator. Graduate schools generally have a set of qualifying exams after the first year or two which weed out marginal candidates. Actuaries have a long series of exams.

Engineering and the pre-med track have weed-out courses.

As for the money factor....
While many African-American students get scholarships, law schools often mandate that students obtain a certain GPA if they are to continue to recieve the money. 50% of black students are in the bottom 10% of their class by the end of 1L year. Many of them drop out (at a rate 2.5 times higher than their white peers) and they cite "financial reasons." Basically, they don't want to take out loans for the full cost of an additional two years and they lost their scholarships.

If law school were free or functionally free (ex. an engineer who can't get hired to do engineering may not be worse off than a humanities major), the bar pass rate wouldn't be an issue. As it is, with lost opportunity costs for college graduates and the staggering amount of loans (or money from parents that could be allocated elsewhere), the bar pass rate is a very real issue that ought to be addressed.

Benjamin,

Below a certain LSAT, a student either lacks the intellectual aptitude to pass the bar, or is so bad at taking multiple-choice tests that he will never pass the bar. Yes, richer kids get better scores, but they may spend more time (and money) prepping, have better educations, and have better-educated (and more intelligent) parents.
2.4.2008 1:42am
DavidBernstein (mail):
"As to letting people know those percentages, I would suggest David that you put the basis for those numbers up on a website and people can google them to see your take on their chances based on LSAT."

The problem, Ben, is that I don't have those numbers; you need the LSAT data for students, and then match it with the bar pass data. The law schools and the state bars could provide this data, but they aren't telling (see attempt by Sander et al to get the relevant data from the California bar). But I've spoken to administrators at several different schools who have acknowledged that there is a score below which they knew that their students start to have real trouble getting through law school and passing the bar. I'll be happy to join you in lobbying the ABA to require law schools to release this information on publicly available websites, or at least to researchers who can make
the data available on websites.

The problem, in any event, is not that law schools are taking in students who have a special story despite their low LSATs that leads the schools to believe that they will "beat the odds." It's that the ABA has, in effect, required law schools to take in students even when they are reasonable confident they won't beat the odds, lest they get in trouble for not having sufficient "diversity" in admissions, with the ABA focusing solely on inputs.

As for Michelle Obama, I haven't heard her story (and I don't trust politicians' stories in any event absent independent confirmation), but at least re law school there is an obvious methodological problem with relying on the stories of those who "made it" and not those who didn't. The former group is, by definition, more successful, and therefore much more prominent and vocal. Those whose promise was set back by wasting three years in law schools and more time futiley studying for the bar tend not to advertise it, and rarely wind up in a position to "be heard" by the legal profession.

Finally, the ABA bars law schools from admitting law students likely to either not succeed in law school or fail the bar, so there is a professional consensus that such prediction is possible, and should be used--but only for non-URMs.
2.4.2008 2:55am
DavidBernstein (mail):
Oh, and btw, I see M. Obama went to Harvard Law, which is not where the problem for bar passage for African Americans lies. At such schools, African Americans have very high bar pass rates, it's at 3rd and 4th tier schools where success rates are abysmal.

And given that she got into Harvard, if she claims people told her "her test scores were too low for law school" then she is at best stretching the truth, as Harvard Law does not accept students of any race who are marginal for law school.
2.4.2008 3:04am
David M. Nieporent (www):
I don't usually comment on law school issues, but it does seem to me that having multiple sets of exams, with one right after the first year, would be valuable. It would let marginal candidates, and their schools, know their status earlier and make a more informed decision about what to do.
They've got those. They're called "finals."
2.4.2008 3:12am
rarango (mail):
Too many law schools and lawyers; too few medical schools and physicians--since lawyers appear to be at least as intelligent as physicians, convert the law schools to medical schools and fix two problems.
2.4.2008 10:28am
Carolina:

The problem, in any event, is not that law schools are taking in students who have a special story despite their low LSATs that leads the schools to believe that they will "beat the odds." It's that the ABA has, in effect, required law schools to take in students even when they are reasonable confident they won't beat the odds, lest they get in trouble for not having sufficient "diversity" in admissions, with the ABA focusing solely on inputs.


Agreed. The ABA's accreditation process has resulted in the crassest sort of quota system, where the only number that matters for "diversity" is how many URMs (under-represented minorities) are in a school's 1L class. What happens to these students after they start law school is immaterial to the ABA.

To the extent increasing the number of URM lawyers is something that the ABA believes is important, and clearly it is, the criteria should be how many URMs are graduating and passing the bar.
2.4.2008 10:32am
Benjamin Davis (mail):
David,

I am sorry. I saw you cite an 18 per cent number so I figured that was a number published somewhere that is based on a study of some kind. Where does it come from?

I have no interest in lobbying the ABA or schools to bring out data that will put more pressure on schools not to take chances on "beating the odds" (a great term) candidates.

On 142's and 4th tier schools, if I remember right the numbers at Texas Wesleyan which was a fourth tier school, a 142 would have to have an extraordinary compelling story to be admitted to Law School so I am wondering whether that number is a realistic number on which to base the discussion.

The "problem" may be elsewhere, but in fourth tier and second tier schools where I have taught, I have seen people of color flunk out as I have seen whites flunk out after the first year. I do not remember a person flunking out in the second or third year. So the shot is in the first year it seems to me. And I have seen people that I considered extremely bright and capable flunk out. Maybe it is writing the exam or taking multiple choice. I am not sure. But I have seen that happen. I still think it was OK to give them their shot.

Admissions is an art not a science.

Fair enough on politicians statements. Although there is one that I love which is what former President Chirac once was reported as having said that "A Politician's promises only bind those who believe them."

I think the ABA is telling schools to do something about diversity in the profession. Now "reasonably confident" is one of those wonderful phrases that allows us to place bars low or high. We can say things like "he would not do as well as this other student."

As to rich kids doing better, yes money has its privileges. But if the distribution of money is not one that tracks with race etc, then the issue has to be for the polity what is it going to do about it. Is it going to allow hierarchies to be reproduced over and over (the rich get richer). Is it going to do something to deal with racial, social and economic disparities? If you do not want that to happen, vote for people who promise you the status quo.

Best,
Ben
2.4.2008 10:32am
Pliny, the Elder (mail):
The truth remains that most law schools are simply unwilling to weed out the non-performers. The year that I taught full-time at a second-third tier law school I flunked three students (two black females and one white male), the most of any faculty member. One of these students wrote material one step above gibberish. The student did an independent study (obviously no blind grading) with another faculty member that semester and received an A. How puzzling!
It is clear that the professor did not want to flunk a black female. wheereas I would have had to afformatively, no pun intended, change the grade after the fact.
(My best student by far was a mixed race female.)
2.4.2008 1:33pm
DavidBernstein (mail):
"If your law school knows that students with, say, 142 on their LSATs historically have an 18% chance of ultimately passing the bar,"

That was a hypothetical.
2.4.2008 1:48pm
rarango (mail):
Pliney: nice to know the Independent Study scam is used in law school--It was the administration's choice in History of World Civ 101 as well, whenever the wrong ethnicity received a failing grade.
2.4.2008 2:10pm
Cullen (mail):
I wasn't aware, until this post, that among the factors relevant to the ABA in its accreditation process is the rate at which graduates are admitted to the bar.

From a consumer protection perspective, that's not an unreasonable position. Most, but not all, law students go to law school with the intention of practicing law in some manner, for which bar admission is a prerequisite. If a law school has a historically bad record for preparing its students for bar passage, that's a relevant piece of information that may well be relevant to the accreditation process, not to mention students' decision making regarding potential schools to attend.

That said, when I was in law school there was little if any attention paid to the prospect of the bar exam. I cannot think of a single class I took that had as its express aim, to any degree, providing me a minimum amount of information that would prepare me more for the bar exam. Of course, there was plenty of information that ultimately proved useful to the bar exam. But that information was provided in the context of fleshing out an analytical scheme more, to my mind, than as a means toward readying any of us to take a particular test.

That, though, was consistent with the focus of the academic inquiry at my law school. My impression is that my school's approach was pretty typical of most schools: law school was intended to teach students the analytical and research tools for being a good lawyer. The bar exam, obviously, tests whether applicants have a minimum fund of information upon which they can draw when representing clients. Those are two dramatically different pedagogical values. In my experience, the latter is substantially easier than the former.

More to the point, I knew of many law professors who were decidedly of the view that their mission was to train lawyers, not to provide bar review prep. Again, I suspect that sense was bron of the view that training lawyers was a higher and better calling than drilling students on flash card memorization of likely bar exam questions and answers. I tend to agree.

It also bears mentioning that bar passage is a governmental, or in some states quasi-governmental, test imposed as part of the state's obligation to regulate a particular type of commerce. That regulatory function is not at all the same as the pedagogical and profession building functions of law schools.

All of which is to say that it's a mistake, I think, for the ABA to focus on bar passage rates. I do think, though, it would be a good idea for law schools to provide their students regular bar-review assistance in the last year of the curriculum. Fifteen years ago, after spending almost $40,000 on law school, I then spent another $3,500 on a BAR-BRI bar review course so that I'd be more assured that the first $40,000 wasn't, in terms of my ability to earn a living in my chosen vocation, wasted. It'd be nice to see law schools recognize that their students and alumni are, in large part, successful only to the extent they are also members of a bar.

Cullen
2.4.2008 2:18pm
Benjamin Davis (mail):
I stand corrected David. It is a hypothetical and I should have picked up on that. As I said before I think a 142 would have an extremely difficult time without an extremely compelling story getting into law school. I think 148's would be closer cases but that is not based on anything except personal memory.

As to flunking people, you need to keep a 2.0 the first year to stay at our school so folks with too many D's can flunk out.

Best,
Ben
2.4.2008 2:40pm
theobromophile (www):

see attempt by Sander et al to get the relevant data from the California bar

Because I'm a total nerd and I have all this data handy, here's the press release.


As I said before I think a 142 would have an extremely difficult time without an extremely compelling story getting into law school.

Not necessarily. Third and fourth tier law schools have to dig that deeply into the minority candidates unless they want their classes to be lily-white.

Benjamin - check out the bar pass rate data for California, which is broken down by race. The differentials are huge. Most of those who fail the bar are clustered in the third and fourth tier schools - really the ones at issue here (mismatch effect aside).

If you are feeling bored, the LSAC has a tool for determining likelihood of admission based upon UGPA and LSAT. With a 3.0 and a 142, there is about a 25% chance of admission at about two dozen schools. (To be terribly blunt, whether or not you are in that group depends upon your race.) Prof. Sander's "Systematic Analysis" article includes race-based data for the UMich Law system. It is available here. To make your life really easy, the summary of the data is on pg. 39 of Acrobat Reader and pg. 405 of the law review article.

The data grid (LSAT/GPA, number applied, number admitted) by race is available here. UMich, in 1999, accepted 18 black students with LSATs of 153 or below. This is not some second-tier law school; it's a top 10, without a doubt.

As to flunking people, you need to keep a 2.0 the first year to stay at our school so folks with too many D's can flunk out.

A charming theory, except that most law schools do not give Ds. My law school publishes the percentile ranks and grade distributions. Even going back to the class of 2003, long before grade inflation, the bottom 5% of the class was in the 2.8 range. (Undergraduate grade inflation began to happen, incidentally, around the time that race-based preferences started to become popular.

Okay, I'm done linking to every law school AA article ever written... at least for the duration of this afternoon.
2.4.2008 3:41pm
Benjamin Davis (mail):
Theobromophile,

Thanks for being a nerd and bringing all that together. California Bar Results are here. Hope that worked. Will come back to that below.

1) Mismatch theory - here is a link to the way the mismatch theory really worked for my uncle in 1942 - Someone inside the hierarchy decided that it was a mismatch for a Negro of promise to deign to think he could go to Carnegie Mellon. George Corrin 1942 letter. Hope that worked. Always someone to say African-Americans are mismatched and should step downward for their good - but of course not anyone else. Sanders is from a long line of persons who have run that rap - always in the interest of the blacks. Please mismatch me! It is being in the toughest spots that you get a chance to grow the most. I am not a wilting flower my friend.

2. 142. What can I tell you? I was on the Admissions Committee at a 12 year old fourth tier law school and as of 2000-2003 I do not remember us going down to a 142. I guess that gets rejected as being anecdotal but I can only go with what I know. At my current school, I also do not see us going down to a 142. Period. I would think that a student with a 142 would pick the schools to which they would want to apply and call Admissions to ask what are their chances and be told that it is extremely unlikely they would be accepted. This 142 hypothetical is turning into a canard.

3. LSAC mechanism. Hey thanks for bringing that together at.

I tried it at 2.0 and at 142 and found one school where the person would be within the range with a 142 but no schools where a person with a 2.0 would be in the range. I tried to do it with a person with a 142 and 4.0 but the technology burped. That might be a person with a compelling story. But I will keep looking.

4. Please be blunt - I am not sure why race determines whether you are in that group. Do not see how the chart tells you the race of the candidates in that group my friend at those schools.

5. U Michigan data grid. I looked at the data grid for our friend the Black with a 142. I saw blacks who applied and at all UGPA's no one was admitted. I saw that also for whites. As you go up the grid, I would imagine that there may be a shot given to include more blacks than whites at a given UGPA/LSAT level (there would be a nice curve to be created here by someone). While the lowest UGPA admit for black students was in the 2.25 -2.49 range (a person with a 164-166) the real cutoff starts around the 2.75-2.99 level for blacks and at the 2.50-2.74 level for whites. So the affirmative action is for whites with lower GPA's then blacks under this grid!

6. I have met with students I have given D's or F's every semester since I started teaching in 2000 at a fourth tier law school and 2003 in a second tier law school. My colleagues and I at both schools give D's and F's. From my work on the Academic Policy Committee reviewing persons who seek readmission I assure you that students flunk out of different races and genders. Please let me know what your law school is and where the data that you describe is. If those rankings are for people who graduate - obviously that means that those who flunked out are not included. And that data would include upper level classes too which may be more easily graded then first year classes where the pedal hits the metal.

7. Bar Passage Rate for California. Thanks. I took a look at it and Bar Passage Rates by race and gender are different. I fully expect that Bar Passage Rates for whites are higher. California is a very difficult bar and blacks as a group are starting behind in the race given this country's history. The question for me is whether those who failed on the first try or second try or never passed regret going to law school. And whether those who never passed are able to lead lives of meaning where they are at. Giving more people a shot who have never had a shot does not seem like a bad thing to me and I fail to see why that is the case. By the way, when blacks start passing at a higher rate than whites, wouldn't you expect that the test will be changed? That is what happened with the IQ if I remember right when it was first introduced. Women scored higher than men so they changed the test to make men equal to women.

So thanks for all that stuff which I appreciate getting. For me the conclusion is that we need more affirmative action unless we are willing to do more about racial, economic and social disparities then America seems to be willing to do.

Peace,
Ben
2.4.2008 6:48pm
neurodoc:
rarango: Too many law schools and lawyers; too few medical schools and physicians--since lawyers appear to be at least as intelligent as physicians, convert the law schools to medical schools and fix two problems.
Any data to support "at least as intelligent," or is the operative word there "appear"? (I do think that law schools sharpen the minds of those they turn out as JDs in a way that medical schools don't with their MD products, but that is a different matter from inate intelligence.)
2.4.2008 8:13pm
DavidBernstein (mail):
"This 142 hypothetical is turning into a canard." I don't see how it can be a canard when the search engine Theobromophile shows several dozen law schools that admit students with a 142 (though not including Toledo).
2.4.2008 10:13pm
Bruce Hayden (mail) (www):
Too many law schools and lawyers; too few medical schools and physicians--since lawyers appear to be at least as intelligent as physicians, convert the law schools to medical schools and fix two problems.
The difference is that the AMA strictly controls the number of medical schools and the number in each class of such, while that does not happen in the practice of law. I would suggest that the reason for that is obvious - lawyers go to law school and many are litigious by nature. It is hard to fathom why the AMA would not be in violation of the antitrust laws. Some MDs I know who work closely with the system (adjunct profs, running residency programs, etc.) have also pointed out that the AMA tries to predict the need for physicians a decade or two out, and has failed miserably.
Any data to support "at least as intelligent," or is the operative word there "appear"? (I do think that law schools sharpen the minds of those they turn out as JDs in a way that medical schools don't with their MD products, but that is a different matter from inate intelligence.)
One source might be the infamous "The Bell Curve" showing that average IQ levels for doctorate degrees, excluding doctorates of education, tended to be similar. The theory for why doctorates of education tended to have lower IQs is that most of them were working teachers who essentially got their doctorates by attending class, where it was close to impossible to fail.

But that really doesn't make much sense, when comparing MDs to JDs, given the disparity in numbers. I would think that the top 10,000 of each would be comparable, but since the number of med students is artificially set so low, the average qualifications of MDs are liable to be much higher.

Which brings me to a hypothesis, that this is a way for the ABA to cut down on the number of lawyers by cutting out many of the lower tier law schools without as clearly violating the antitrust laws as they would if they strictly followed the AMA model. I would think that a large percentage of attorneys would love for there to be many fewer lawyers entering the practice. The ABA certification would not be all that worrisome, except that many states (including the two where I am licensed) have a two track system, with those graduating from an ABA accredited school being immediately allowed to take the bar, but those from non-accredited schools having to practice law for a number of years first. So, yanking ABA accreditation this way would tend to immediately reduce the number of people able to sit for the bar in many, if not most, states.
2.4.2008 10:19pm
louisvillelawyer (mail):
I think the ABA is trying to prevent situations like the "American Justice School of Law." Get on PACER and read the Complaint filed against the law school — it is really awful.
See also:

Courier Journal article
2.4.2008 10:27pm
Benjamin Davis (mail):
I stopped getting blocked and was able to run the program under different hypos. 142 cases do seem to occur according to this list.

I tried out the 142 and 2.0 UGPA and there is a chance of getting in that is more than the 10 per cent level at 6 out of the 185 schools. The chance does not seem very high. I tried it at 142 and a 4.0 and the number of schools interested goes up significantly as does the percentage likelihood. I did not do a tier analysis. I expected that result as a school might look at the GPA and say this person is a lousy LSAT taker but a very disciplined student (adjusting for quality of school they are at and difficulty of the program which would affect that assessment). I see nothing wrong with that.

Thanks for the tool. My experience at a fourth tier and a second tier with 142's stands corrected. I still do not know why we have to assume they are black, mostly black etc.

By the way have you seen the Vernellia Randall, Whitest Law Schools report 2004 and 2005 available at Whitest Law Schools. A different take on these issues that I would imagine is rarely seen.

Best,
Ben
2.4.2008 11:10pm
theobromophile (www):

Please let me know what your law school is and where the data that you describe is. If those rankings are for people who graduate - obviously that means that those who flunked out are not included. And that data would include upper level classes too which may be more easily graded then first year classes where the pedal hits the metal.

I'll email that info to you; please keep my identity somewhat quiet. :p

To answer the question: people who flunk out are included in the rankings until the next semester. (A student who does very poorly this 1L year, then leaves, will be included in the class rankings up through January of 2009, when the 2L Fall ones replace the old ones.) You'll understand better when you see the distributions.

I don't think that mismatch is paternalistic; it would actually apply to anyone with a good story but credentials that give one pause. There is no reason to put people in a situation in which they are unprepared to succeed. I don't think that affirmative action is the answer; as the supposed beneficiary of it, I frankly hate it. (Female engineer. It was not until I survived the weed-out courses that people stopped saying that I "only got accepted because [I'm] a woman." If it's not happening, the specter of it is damning. If it is happening, you're putting people in situations where they will be outgunned.)

Given that 1/2 of black students end up in the bottom 10% of their class after 1L year, I don't think this is idle, theoretical back-and-forth speculation. The data for all of this is frightening for any affirmative-action advocate.
2.4.2008 11:46pm
theobromophile (www):
While the lowest UGPA admit for black students was in the 2.25 -2.49 range (a person with a 164-166) the real cutoff starts around the 2.75-2.99 level for blacks and at the 2.50-2.74 level for whites. So the affirmative action is for whites with lower GPA's then blacks under this grid!

That's a bit dishonest, intellectually. Look at who applied and who was accepted.

Acceptance rate depends on LSAT as well as GPA. You cannot compare a student with a 2.5 GPA and a 170 LSAT with a student with a 2.6 GPA and a 150 LSAT, then claim that an acceptance of the former equates to affirmative action.

Of the 34 white students with a GPA of 2.5-2.74 who applied to UMich, only one was accepted (thus rendering your version of "cut-off" rather silly, as the 2.9% acceptance rate for that GPA range is lower than the 4.5% acceptance range for black students with a 2.25 to a 2.49, and a 2.5-2.74!). That one white student's LSAT was above a 170.

Blacks with GPAs in the 2.5-2.74 range had a 22% acceptance rate - seven times higher than that of their white peers. The highest LSAT of that group was in the 164-166 range - which is about a half of a standard deviation below the one lone Caucasian acceptee.

So: seven times the acceptance rate, LSATs are lower. Oh, yes, it's affirmative action for whites!

Analysis of GPA range 2.75-2.99:

African-American students: 31 applied, one accepted. One applicant had an LSAT in the 164-166 range; one more had an LSAT in the 161-163 range. The remaining 29 applicants had LSATs that are 158 or below. The admittee had an LSAT in the 148-150 range.

Caucasian students: 77 applied, 6 accepted. Lowest LSAT of acceptees: 164-166 (five applied, one accepted). Three of the six students had LSATs above a 170.

You are basically saying that, as white students post a single acceptance for five applicants, where black students post none for one applicant, in exactly one LSAT/GPA data set, there is affirmative action for whites in that GPA range.

Such crap.

(Incidentally, not a single African-American who applied to UMich had an LSAT above 170. Only three reached or exceeded 167. Whites in the 167-180 range had an acceptance rate of 89%.)

By the way, every single black student with both a GPA above a 3.0 and an LSAT above a 159 was accepted.
2.5.2008 2:25am
theobromophile (www):
The fifth line in my third paragraph out to read, "2.25 to a 2.49, and a 22% acceptance rate for those with a GPA of 2.5-2.74!). That one white student's LSAT was...."
2.5.2008 2:27am
Benjamin Davis (mail):
Theobromophile,

Thanks for the information offlist. What I understand is that at your school an adjustment is made taking out those who flunk out which is fine. That confirms that people flunk out there which is the point I was trying to make from my experience. So much for the no one flunks canard.


Acceptance rate depends on LSAT as well as GPA. You cannot compare a student with a 2.5 GPA and a 170 LSAT with a student with a 2.6 GPA and a 150 LSAT, then claim that an acceptance of the former equates to affirmative action.


Of course you can compare those students - one may be great at doing tests but intellectually lazy in school in an easy major and the other might be not so hot on doing tests but working very hard in a demanding program at a difficult school. That is qualitative stuff I recognize that has to be looked at in looking at the whole picture. Be a little more flexible about it.

I no doubt can not convince an engineer as a non-engineer about the statistical part of this. My point was that in looking down the right side column at Michigan at the three groups starting from 2.75 to 2.99 and going down on GPA what I noticed is that at the 2.75-2.99 level for blacks the acceptance rates narrowed dramatically and kept being narrow going down. That kind of contraction did not happen at that rate at the 2.75 to 2.99 level for whites but did happen at lower GPA's for whites. You are reading the same table and coming up with an analysis that says it should be read differently. I will read it my way and you will read it your way. Peace be upon you.


I don't think that mismatch is paternalistic; it would actually apply to anyone with a good story but credentials that give one pause. There is no reason to put people in a situation in which they are unprepared to succeed. I don't think that affirmative action is the answer; as the supposed beneficiary of it, I frankly hate it. (Female engineer. It was not until I survived the weed-out courses that people stopped saying that I "only got accepted because [I'm] a woman." If it's not happening, the specter of it is damning. If it is happening, you're putting people in situations where they will be outgunned.)


I agree with you. There is no reason to put someone in a position where they can not succeed. But there is also no reason to not put someone in a position they are seeking because you think that is the best thing for them is not to get a chance to try. Accept them or reject them but (please!) not for their own good. For blacks, deal with the fact that your school (meaning schools generally) has never had blacks at all or only tokens "always for good reasons". Think about "is this a person who maybe has a chance." Take a risk. One reason I used to apply to first tier schools over lower tier schools was that first tier schools were sufficiently secure in their self-esteem that they might take a chance on me.

I would also ask "succeed in whose terms?" In the terms of the person or the terms of someone else? For example, once I saw advice being given on how first year law students have to work so that they too can be "Barack Obama". Now I think that is great to want to be President of Harvard Law Review and later run for President, but does that have to be ALL of our definitions of success? I mean, how about someone who wants to practice law in a small town have a quiet life with a family - has no interest in going to New York and becoming a corporate greedhead. Does that make them less "successful"? I do not buy into a narrow view of what success is. I am thinking that getting out of law school and having a decent life is a reasonable definition of success. Success is relative to one's definition of success. Failure is flunking out. Other than that we are in the range of different types of success.


On your experience as an engineer, I hear you. I have heard that kind of stuff also. It seems pretty obvious to me that the people saying those dumb things to you in the weed out courses were trying to psyche you out. Fortunately for all of us, you did not listen to that crap and made it to the next level. I know that story all my life. "It can't be done." "You are not good enough." and then when I do it "It was lucky." All mind games to make you deny your worth and accept a smaller piece of the pie. More BS piled higher and deeper I think.

I am looking at the persons who got D's and F's (over the years at various schools at which I taught first year contracts) in blind grading and all I can say is that your lowest 10 per cent rule being a black thing does not hold in my experience.

And even if it did, what is gained by replacing that 10 per cent with a 10 per cent that is not diverse? I mean you are going to have a bottom 10 per cent. Aren't they mismatched too? Why is putting blacks lower such a social good today when in 1961 it was not? That is part of what I do not buy in these analyses.

Anyway, I enjoy discussing these points with you and others and adding my two cents to the debate. Please take a look at the letter I linked to above received by my uncle when he wanted to go to Carnegie Mellon in 1942. I will tell you the rest of the story. He had a white woman who he had worked with at a playhouse write a letter of recommendation assuring the Dean that my uncle was the "right kind of Negro" and "was not interested in being out on stage but in the back in stage design". He would be willing to accept the "menial roles" if needed. That uncle was then accepted at Carnegie Mellon. He later went on to Yale Drama School. He was the designer for the set for the Nixon-Kennedy debates. Note the mismatch crap he had to put up with. Fortunately, he was smart enough to find a way to get the "gate blocker" to let it go and let him take his shot. He did very well when given his shot. And he has gone on to have a wonderful life with two great kids (both went to Exeter) and grandkids and all kinds of wonderful stuff that is totally cool. The letter of appreciation from my grandfather to that white woman is quite moving also but that is really way too much family stuff for a blog.

Peace,
Ben
2.5.2008 8:02pm
theobromophile (www):

what I noticed is that at the 2.75-2.99 level for blacks the acceptance rates narrowed dramatically and kept being narrow going down. That kind of contraction did not happen at that rate at the 2.75 to 2.99 level for whites but did happen at lower GPA's for whites. You are reading the same table and coming up with an analysis that says it should be read differently. I will read it my way and you will read it your way. Peace be upon you.


I Excel spreadsheeted a lot of this. I'll send it along.

As for success, giving people a chance, etc....

1) "Success," as I define it, means getting through law school having gotten an education, understood the law, and reached out to the (well, at my school, amazing) opportunities available to students - journals (not just Law Review), Fed Soc, clinics, externships, independent research projects, researching with professors.

While the amount of money I'm taking out in loans nauseates me, I do think that my legal education has been great. (Sure, I complain, but that's law school in a small town.) I've been able to do interschool moot court, write on a journal (that I love), Fed Soc, research with a prof, do independent research, take classes that I love, and have professors tell me at the end of the semester that I've contributed a lot to discussion.

When I say that I worry that black students are being put in a position where they cannot succeed is that, again, half of them are at the bottom of their class. (Of course, someone has to be there, but it shouldn't be dominated by a racial group.) The drop-out rate is 2.5 times higher than for white students. Most journals have a competitive write-on system, so students who are outgunned (and getting bad grades) don't have the opportunities to do those things. Some are based on grades. Clinical placements (in my school, I think) are partially based on grades. Professors request transcripts before accepting students for research positions.

2) Mismatch. If you were to replace a lot of the affirmative-action admits with non-AA admits, the bottom 10% that would still be there would NOT be outgunned. A law school could easily find twenty people who are equally as qualified as their other admits for the spaces - they just can't find twenty minorities.

Admissions is a zero-sum game. A spot given to someone to "take a chance" is one NOT given to someone who is a more solid bet, but with the wrong skin colour. Law schools monitor the compositions of their classes very carefully during admissions; they manage to, every year, have nearly the same percentage of black students. (David Bernstein may have mentioned this upthread; if not, I think he's mentioned it elsewhere.)

I think this debate boils down to you simply not understanding the huge influence that race plays in law school admissions. It is not a thumb on the scale; it is not a few points on the LSAT; it is not a few extra GPA points, possibly to make up for a lackluster freshman year performance (which would be expected if a college admitted a student who has potential but a bad high school education). It is a MASSIVE preference, dwarfing that given in undergrad.

You say it's paternalistic to deny the seat. I say they have no right to it unless they are objectively qualified for it and competitive with other applicants. Affirmative action is not individualised; it is not used to give a promising student with a tough life a chance; in fact, it eviserates the notion of civil rights - rights of the individual. AA is, at its core, the right of a group of people to undermine a meritocracy.

It is, IMHO, incredibly important to have a diverse legal profession. (Ditto medical.) The people who are admitted to law school now will, twenty years down the road, be judges, politicians, academics, professors, civil rights attorneys, and running law firms. That does NOT mean that every effort used to achieve those ends is valid.
2.6.2008 1:32am
Benjamin Davis (mail):
"Success" That is a great definition of success and I hope you achieve your success. Just accept that other persons coming from different histories may have different visions of success. For example, my idea of success was getting a summer job in international work so I could have an international career. Absolutely none of that is in your vision of success. But we can both be successful on our terms without me denigrating your goals or vice versa.

Again, assuming those students at the bottom are black and outgunned, since all this is based on concern about those blacks who are supposedly outgunned, isn't the question how those blacks that are outgunned feel about being there? If they are not quitting does it not suggest that they appreciate the opportunity and are fighting back. Maybe ma and dad were not judges, but so what?

I just have a hard time with all this hand-wringing for those "po' outgunned blacks" when what I really suspect based on the history and the vitriol is that it just drives some people crazy that someone they consider "undeserving" is getting a break because society thinks it is important to change the shape of the future.

If the blacks were all at the top of the class, trust me, there would be something else said. Remember the admissions of Asians and the efforts to reduce the number of asians to keep enough places for whites at places like Berkeley? Remember in a generation before about jews and elite schools and the quotas to keep down the number of jews? It is all about who is considered in and who is considered out in a given period.

Numbers like 2.5 times always look suspicious to me because they are usually comparing a couple of percentages that really do not differ that much like for example "X if four times more likely to" comparing "1 per cent" and "4 per cent". There is likely some level of absolute minimums working here as the flunking of one black student counts more because THERE ARE SO FEW BLACK STUDENTS IN THESE LAW SCHOOLS to be the denominator!

AA admits. Yes, I will stipulate that law schools could be all white made up of only persons with the highest GPA and LSAT (though that would likely discriminate against asians but that would be another discussion too wouldn't it?). I will stipulate that the entering class at elite colleges could be made up of only persons with perfect SAT and GPA's way over 4.0 because they took AP courses. That is the way you want to determine the meritocratic "elite defined at this time".

Let's see, Harvard was founded in 1636 and in each period since then of course the "elite defined at that time" went there. Of course many were dullards but, hey, that was OK because that was the "elite defined at that time." Or maybe we should call them the "deserving worthy" as opposed to the "rabble". So in some way shape or form we have done that form of selection for 334 years (taking 1970 as a point where more integration happened in those venues). We have had 38 years of trying to shape that differently. You want to stop that for those "po' outgunned blacks". I do not want to stop. I think it is enough that if a person does not do well enough they flunk out. I am willing to try to bring people in from the rabble who tell me a story that makes me want to give them a chance. So be it.

How about defining a "mismatch" in a very simple way. A mismatch is a person who flunked out. A person who did not flunk out is not a mismatch. They just are at a low level in their class. If they aspire to work at Sullivan and Cromwell there is a mismatch between their performance and their goals. But if they aspire to open an office and put up their shingle that might not be a mismatch.


I think this debate boils down to you simply not understanding the huge influence that race plays in law school admissions. It is not a thumb on the scale; it is not a few points on the LSAT; it is not a few extra GPA points, possibly to make up for a lackluster freshman year performance (which would be expected if a college admitted a student who has potential but a bad high school education). It is a MASSIVE preference, dwarfing that given in undergrad.


The fun thing is that there is the argument that whites are overrepresented in law schools as a percentage of the population, so race is a factor that is working FOR whites. I recognize that will come as a shock as this is a discourse that is not part of the "mainstream" discussion.

At every law school I have taught at, I have not seen this huge legion of black law students taking up vast numbers of seats. You see maybe two or three - does not seem like this huge deal to me.

But let me put this to you in another "iconic" kind of way. Is Barack Obama being evaluated on the content of his character or also on the color of his skin? If you speak honestly you will admit that the color of his skin is part of the debate going on? I mean I have had white students speak to me candidly about his race being an issue for them. So if we will at least admit that evident point, might I ask again what I have asked before in this space, "What is your plan for integrating the legal profession?"

Show me your plan that will get us to a more integrated legal profession (part of the promise of Brown) with integrated law schools at all levels etc.


You say it's paternalistic to deny the seat. I say they have no right to it unless they are objectively qualified for it and competitive with other applicants. Affirmative action is not individualised; it is not used to give a promising student with a tough life a chance; in fact, it eviserates the notion of civil rights - rights of the individual. AA is, at its core, the right of a group of people to undermine a meritocracy.


I say no one has a right to any seat at any school. They apply and the school decides whether they should be admitted. If the school admits them the person has a right to that seat. I think I just saw a couple of court cases at Michigan that said affirmative action is individualized at one school (the law school) but not at the other (the undergrad) and that the law school program was fine but the undergrad was not. I personally think that this kind of narrow parsing simply trivialized the huge issues of economic, social and racial disparities, but it would seem that from those decision the Supreme Court did seem to recognize that some affirmative action is individualized just as some is not. So please recognize what the Supreme Court did.


It is, IMHO, incredibly important to have a diverse legal profession. (Ditto medical.) The people who are admitted to law school now will, twenty years down the road, be judges, politicians, academics, professors, civil rights attorneys, and running law firms. That does NOT mean that every effort used to achieve those ends is valid.


We agree on this point. You see what is done to get minorities in law schools as huge. I look around the country at the quality of schools in minority neighborhoods and all the rest and what I see is that what is done is minuscule. So what you see depends on what lens you are using. I do not see enough being done.

I look forward to your spreadsheet. I am glad you are having a great experience.

I am not sure I have responded to everything but I have tried to be responsive. I hope someday that we meet and talk. You can see my picture on my website. If on some occasion you see we are in the same place, please introduce yourself as it is a pleasure discussing these things with you in this open forum. I know fine people at your school and your writing speaks well of the training at your school and, most importantly, of you. Maybe someday you will be one who has to look across the country and grapple with making it a place where 300 million people feel included. It is a terribly difficult task.

Best,
Ben
2.6.2008 2:22pm