Prof. Paul McKaskle of University of San Francisco comments:
As to the main issue raised in the post and by most commentators–the issue of affirmative action to increase the number of African-American attorneys, as I noted at the outset, the real problem is, in terms of law schools as a whole, there are simply not enough “qualified” applicants (whatever “qualified” may mean). Top tier law schools can admit whatever percentage of African-American students that they feel is appropriate and most will at least graduate and pass the bar. Second tier law schools will have more problems (given that African-American students who most closely resemble the qualifications of their white students have been accepted at top tier schools) and probably the African-Americans actually admitted will do less well in law school and on the bar. Further down the pecking order the likelihood of admitting a “sufficient” number of African-Americans to satisfy “diversity” or whatever goal a school (or the ABA) deems appropriate who will be successful becomes even less likely. So, the goal of increasing the number of African-American lawyers will not be met. All that will have happened is that the “better” schools will have successful African-American students (though a disproportionate number of them will be at the bottom of the class) and lesser schools, no matter how many African-Americans are admitted, will have a poor success rate in graduating them and getting them past the bar exam.
The main measure used by law schools as to whether law students will be successful is the LSAT. It is a rather imperfect measure to say the least, but no better measure now exists except how one does in the first year of law school. At my law school, the co-efficient between LSAT and ultimate passing of the bar is .30. The co-efficient between first year law grades and passing the bar is .90. The LSAT really doesn’t tell much about a particular individual, rather it tells much about large numbers of individuals. Of the hundreds of individuals who have, for example, a 170 LSAT, the only useful information for a law school is that some fairly high percentage of them (perhaps 90%) will do well in law school. But some much smaller percentage of the 170 LSAT scorers will do poorly and may even flunk out. Of the hundreds of individuals who have a 140 LSAT, a very small percentage will do well in law school (perhaps only 5 or 10%) and most will do poorly and are likely flunk out. When a law school fills a first year class, it tries to maximize the number who will do well and minimize the number who do poorly. The obvious answer, admit as many high LSAT scorers as possible. (Most law schools do take other factors in consideration, mostly undergraduate grades. The correlation between ugpa and law school success is much weaker than for LSAT, but the two in combination is slightly more predictive than either one alone. But, LSAT is the primary determinant in admissions at most law schools–at least those law schools which cannot fill the entire entering class with students with 170 or better LSATs such as is likely at Yale.) I teach at a law school with “wobbles” between second and third tier status on the USNews listings (though our median and quartile LSATs are well up into the second tier) and if we wanted to double the number of African-American students actually enrolled we would have to accept students in the low 140s are even high 130s LSATs to reach this goal. Based on past statistics, the likelihood that very many of these students would graduate and become successful lawyers is very small.
One commentator suggests that even a small increase in African-American lawyers is better than none. Perhaps so, but at what cost. Most law schools cost in the neighborhood of $30,000 a year, and while there are some scholarships (especially at top tier law schools) the “additional” African-Americans admitted at lower tier schools are likely to have to finance their entire education. There is also income lost by postponing alternative employment. Thus, most of the cost of African-American students who fail is going to be borne by segments of the African-American community. If ninety percent of the African-American admittees admitted to top tier or near top tier law schools succeed, very likely that, overall, it is good for the African-American community as a whole (especially since at top tier law schools there is likely to be generous financial aid). But if only half succeed at a lower tier law school, is this a worthwhile bargain for the African-American community? (I have at least one colleague who thinks so.) But I think it is far more questionable as to the worth to the African-American community if only 20% or 10% succeed. If one out of five succeeds, the resources of the African-American community has had to invest close to a half-million dollars for each successful lawyer, and that doesn’t count the psychological cost to those who failed. That is a moral question upon which I think it would be interesting to hear the opinion of the ABA.
I’m not convinced that he quite has all the numbers right, but I do think his comment reflects the growing discomfort by many professors at law schools outside the top tier, including professors who generally favor affirmative action, that “diversity” requirements that fail to account for the relevant applicant pool are forcing schools to admit students whom the schools know are statistically unlikely to ever become attorneys. Professor McKaskle makes additional interesting, related points. Read the whole thing.
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