Thanks to Legal Skills Prof Blog for highlighting my paper "Some Thoughts on the Future of Legal Education: Why Diversity and Student Wellness Should Matter in a Time of 'Crisis'"

Abstract:     

"Some vocal critics have loudly proclaimed that the challenges of law school economic have reached "crisis" proportions. They point to the well-known facts about recent developments in the market for law schools. Law schools have experienced a precipitous drop in applications. The global recession decimated the legal job market. To make matters worse, rising tuition has resulted in increasing debt loads for law graduates.

In light of the changes in the legal marketplace, stabilization of the budgetary picture is currently the first priority of virtually every American law school. Faculty members have been let go. Staffs reduced. Enrollment of students - and the collection of tuition revenues - have critical budgetary consequences.

Linked to the economic "crisis" facing law schools and students was deep concern with each school's relative placement in the much-watched U.S. News and World Report law school rankings. These rankings, among other things, affect admissions and enrollment, and thus budgetary bottom lines for law schools.

Much less publicized concerns with legal education involve non-financial issues. The lack of racial and other diversity of students attending law school, and ultimately entering the legal profession, and faculty, has long been a problem. In addition, today's students demand a more humane legal education and are asking for additional academic support, career and mental health counseling, experiential learning opportunities, and more. The costs of the additional services and programs have further added to budgetary pressures on law schools.

This Essay contends that law schools should strive to address the noneconomic as well as the economic problems with modern legal education. In a time of considerable change, this is a most opportune time to consider and implement deep and enduring improvements that benefit students as well as the entire legal profession."

Congratulations to Professor Peter Lee, recipient of the 2016 Distinguished Teaching Award! The honor, made possible through the generosity of Bill and Sally Rutter, was presented at the "Celebrating King Hall" event last night at the ARC Ballroom on the UC Davis campus.

Professor Lee receives the award from Dean Kevin R. Johnson.

Professor Lee addresses attendees at "Celebrating King Hall."

For more photos from the event, visit the School of Law's Facebook album and Instagram.

On March 3rd, the Student Wellness Committee (SWC) sponsored its first public panel entitled, "Managing the Legal Beast: Panel Discussion on Navigating Law School and the Legal Profession with your Mental Health Intact."  The primary goal of the panel was to open discussion about the challenges for mental health wellness that law students and attorneys face, and discuss how the King Hall community (faculty, staff, students) can address these challenges.  A secondary but equally important goal was to normalize mental health struggles and begin to open the dialogue on how common and shared these challenges are among lawyers and law students in particular.   

I was pleased to be part of a panel that discussed questions about mental health and its challenges from three perspectives: law students, law professors, and practitioners.  Also on the panel was Professor Katie Young, currently a post-doctoral fellow at Stanford, who described her current book project on the law school experience with a realistic view of the stressors of law school and how they exacerbate existing mental health challenges and may produce anxiety and depression for students who previously did not experience these conditions.  The second panelist, Pamela Cohen, an experienced staff attorney with Disability Rights California, the Protection and Advocacy organization for the state funded to represent the interests of people with disabilities, addressed the difficult questions of disclosure of mental disabilities, more specifically, when and if to disclose and why.  She called for students, faculty, and administrators to change the culture from within.

In my segement of the presentation, I focused on the much needed culture shift around individuality and autonomy as fundamental democratic values and how they work at cross purposes to de-stigmatizing mental disability.  Shared inter-dependency and relational autonomy is more reflective of how people interact and demystifies how people actually succeed in law school and in practice.  I also discussed the prevalence of depression and anxiety among the general population --e.g., 1 in 4 people will experience depression in their lifetime--and its higher prevalence among law students--e.g., approximately 1 in 3 law students.  I attributed the disproportionate numbers among law students to at least three factors. First, the changing economic climate that results in fewer available "dream jobs" for law students and the realization that the passion which brought them to law school may not translate into a job in that area (at least at first).  Second, we celebrate imbalance--that is, people who sacrifice self-care in law school and legal practice get celebrated as "hard workers" and "devoted, tireless advocates"--rather than emulating the person who strives to balance law school or legal practice with self-care (eating well, exercise, social support networks).  Third, and relatedly, students come to law school as complex individuals with diverse interests and hobbies and after a short time this rich, deep complexity is reduced to a singular identity--law student.  These three factors take a toll on the person emotionally, physically, and psychologically.  

I also talked about how faculty can help identify law students in need of additional support and begin to shift the culture of silent suffering and stigma attached to mental disabilities.  For example, class attendance can be used as a way to check in on students' learning and also their mental health.  Students who are on call in larger classes and fail to attend class may potentially signal that they need additional support or assistance.  It's a good idea to reach out to these students personally and offer support and an open door.  Also, mental health challenges may be a sign or result of academic difficulties.  With that in mind, it can be useful to design courses to include formative assessments and periodic substantive checks to get a sense of where the class stands.  It's also important to pay attention to students' body language and facial expressions which may signal not only confusion with the materials but general lack of energy, motivation, sometimes associated with depression. Included in my presentation was a quote from Justice Louis Brandeis that I think is particularly apt for law students: "If you would only recognize that life is hard, things would be so much easier for you."

Approximately 30 law students attended the panel with strong support from the Dean's Office.  In attendance were Senior Associate Dean Madhavi Sunder and Senior Associate Dean Hollis Kulwin. I shared a note of support from Dean Kevin Johnson, who could not attend because of another commitment outside of the law school.  

I am at the Association of American Law Schools (AALS) Annual Meeting at the New York Hilton Midtown.

Here is a rundown of the panels in which King Hall faculty members are speakers or moderators.

"The ADA at 25: Implications for People with Mental Disabilities"
Speaker from a Call for Papers: Jasmine E. Harris
Topic: "I take up the question of what remains to be done in an area that the ADA has not (and perhaps could not) reach: state regulation of sexual expression of people with mental disabilities."

"Service: Challenge, Opportunity and Passion" and "Teaching and Outsider Status"
Plenary Session at the Workshop for Pretenured Faculty of Color
Speaker: Kevin R. Johnson

"Indian Tribes, Same-Sex Marriage, and LGBT Families"
Speaker: Rose Cuison Villazor
Topic: Marriage Equality in American Samoa

"Animal Rights: From Why to How"
Speaker: Angela P. Harris
Topic: "What can the animal rights movement learn from other social movements seeking racial equality, rights for women, LGBT individuals, indigenous peoples, and individuals with disabilities?"

"Transactional Lawyering and Contractual Innovation"
Moderator: Afra Afsharipour

I just posted an entry about these and other King Hall-related activities at AALS (including an alumni reception and our faculty members in leadership positions) over on the Dean's Blog.

I authored an essay that appears in the current edition of Hispanic Ourlook in Higher Education magazine. I wrote about the challenges in launching the new University of California Undocumented Legal Services Center and the unique legal needs of undocumented college students and their families.

Undocumented Legal Services Center staff members meet to discuss cases: Legal Fellow David Gomez, Legal Fellow Desiree Fairly, and Executive Director María Blanco.

An excerpt:

Over the last year, the University of California has been constructing a form of student services never before seen in higher education. In building the University of California Undocumented Legal Services Center, UC is demonstrating how it truly can be on the cutting edge in serving students and the greater community.

Announced last November by the UC President Janet Napolitano, the new center has already begun serving the unique legal needs of undocumented students. Housed at the UC Davis School of Law, home of a well-established Immigration Law Clinic and leading immigration law scholars, the center serves undocumented students and their families on UC campuses without a law school. The campuses - Merced, Riverside, San Diego, San Francisco, Santa Barbara, and Santa Cruz - are spread throughout the Golden State.

The student need is clear. Many of them are eligible for deferred action or other types of immigration relief that stabilizes their daily lives and, as a result, helps to improve their academic success. The idea behind extending services to the families of undocumented UC students involves a well-researched phenomenon: students are in a better position to excel in their studies if their families are not at risk of removal.

Read the full essay here at Hispanic Outlook in Higher Education magazine.

A two-day conference at UC Hastings will celebrate the work of Professor Emeritus Bill Ong Hing.

May 19 and 20 -- save the date!

Bill is an expert in immigration law and policy, Asian American legal history, civil rights, and much more. Throughout his career, he has pursued social justice by combining community work, litigation, and scholarship. He is founder and continues to serve on the board of directors of the Immigrant Legal Resource Center. He also serves on the National Advisory Council of the Asian American Justice Center and is an advisor to the Black Alliance for Justice Immigration and the Asian Law Caucus. He is the author of numerous academic and practice-oriented books and articles on immigration policy and race relations. His books include Ethical Borders - NAFTA, Globalization and Mexican Migration (Temple Univ. Press 2010), Deporting Our Souls - Values, Morality and Immigration Policy (Cambridge University Press 2006), Defining America Through Immigration Policy (Temple Univ. Press 2004), Making and Remaking Asian America Through Immigration Policy (Stanford Press 1993), Handling Immigration Cases (Aspen Publishers 1995), and Immigration and the Law - a Dictionary (ABC-CLIO 1999). His book To Be An American, Cultural Pluralism and the Rhetoric of Assimilation (NYU Press 1997) received the award for Outstanding Academic Book in 1997 by the librarians' journal Choice.

Co-authored with Dean Kevin R. Johnson. Cross-posted from Justia's Verdict.

Over the next month or two, tens of thousands of admitted applicants will make decisions about which law schools to attend. One tool that many will no doubt use to guide their decisions is the annual U.S. News & World Report rankings, which will be released in a little over a week. Many analysts criticize the methodology (or various aspects of it) that U.S. News employs to rate law schools (and some folks doubt whether all the nation's law schools could ever be meaningfully graded according to any single set of criteria.) But, for the time being at least, U.S. News remains the most looked-at, and seemingly influential, ranking system out there. For that reason, in the space below we offer-based on our collective experience in both evaluating other law schools and having our own law school evaluated-five pieces of advice for making the most sophisticated use of the rankings that U.S. News is poised to unveil.

#1: The Importance of Trends: Remember That Each Year's Rankings Capture a Snapshot in Time

The rankings that are set for release on March 10 present a great deal of raw and processed information, but they data they contain-and the bottom-line rankings they assign-represent only a snapshot in time. Any sensible consumer of the rankings should look not just at one year's result, but at a longer track record, perhaps attaching more weight to a five-year average rather than to any single year's numbers.

To be sure, sometimes there is, as to a particular law school or type of law school, a clear trend line-in particular components within the ranking or as to the bottom-line performance - and it may be important to try to discern what accounts for any such consistent assent or decline. More commonly, a school may bounce around somewhat because of short-term factors, such as a bad year in passing the bar and/or placing graduates in jobs, or an anomalous drop in application volume or quality due to some administrative gaffe or regional downturn. Such volatility is itself a basis on which the U.S. News rankings are often criticized-how much could a school's overall quality really change within the space of a year?-but taking a somewhat longer view may partially address that criticism and make the bottom-line ratings more meaningful.

In looking at changes over time, it is important to realize that certain parts of the U.S. News evaluations very rarely move much from year to year. This would include a school's reputation rank among other law professors who are surveyed (which accounts for 25% of a school's overall ranking) and its reputation rank among lawyers and judges who are polled (which accounts for 15% of the overall result). The relative quality (compared to other schools) of a school's student body-as judged by median LSAT scores, college GPAs, and the school's acceptance rate-also has tended, as an historical matter, not to change tremendously in a single year (but rather evolves much more gradually), but this factor has itself become a bit more volatile in recent years as the national decline in application volume has hit some schools harder than others. Other factors, such as the percentage of graduates who are placed in law-related jobs at or nine or ten months after graduation, bar pass rates, and dollars-per-student spent by a school (more on that later), have tended to fluctuate much more, and thus may account more for the year-to-year changes in bottom-line rankings.

One might argue that the parts of the U.S. News survey that are more stable are more reliable and thus should be taken more seriously than the overall rankings. There is something to that, but even these stable components have been open to significant criticism. The response rate by lawyers and judges who are polled has often been quite low, and the integer-based scale (ranging from 1 to 5) on which law professors, lawyers and judges are asked to place schools is not sufficiently finely grained for people to draw the kind of nuanced distinctions that the U.S. News rankings purport to depict overall. Moreover, it may be that larger law schools, with more graduates, may have an easier time making a positive impression on judges and lawyers, simply because members of the bench and bar may be more likely to encounter recent alums of schools that pump out more graduates. (There are other, smaller aspects of the U.S. News methodology-such as student-faculty ratios-that might tend to inadequately reward economies of scale and thus favor small schools.)

#2 The U.S. News Data Is Necessarily Limited in Scope

In addition to being limited in time, the data that U.S. News employs and presents every year is limited in scope. Among the data that it ignores is how diverse a law school's faculty or student body is. We have argued (in an earlier series of online columns) that this information concerning racial/ethnic (and perhaps other kinds) of diversity ought to be incorporated into the rankings. Most law school faculty and administrators around the country believe that diversity within a school is a helpful plus in a world where graduates are going to encounter and serve clients of various different backgrounds. Yet U.S. News has declined to include a diversity component in its overall scoring (although it separately presents raw data as to racial diversity). As we have explained before, the main reason U.S. News has offered for not including diversity-that some schools are located in places where diversity is harder to accomplish-simply doesn't wash. Some schools are located in places where there are fewer high-LSAT performers in the community, yet we still include median LSAT as a rankings input because we think a law school student body's LSAT performance is a relevant characteristic. If, as the Supreme Court has held and as most people in academia believe, a diverse school is pedagogically better than a less diverse school, all other things being equal, then we should develop a way to have diversity count for at least something when we evaluate and rate schools. In the meantime, prospective students can find helpful data on each school at the ABA "Standard 509" website.

#3. Distributions Within Each Law School Student Body

While we are talking about the makeup of the student body of each law school (which many prospective students would find an important factor since law students often learn from, and are judged by the outside world by, the company they keep), we should point out that the data that U.S. News weighs most heavily-median LSATs and GPAs-while relevant to an assessment of student-body academic strength, itself can mask important differences within each student body. Two law schools may have similar medians, but they may have very different LSAT scores and GPAs at the 75^th and 25^th percentiles within their student bodies. Let us compare, for example, using 2014 data, Northwestern and Cornell, both excellent law schools with undeniably strong student bodies. Northwestern's LSAT median was a 168, and its median college GPA was a 3.75. Cornell's were a bit lower on both-a 167 and a 3.68. But Cornell's 25^th percentile LSAT and GPA were somewhat higher than Northwestern's (166/3.55 compared to 162/3.53). How could the school with higher medians have lower numbers at the 25^th percentile? There could be a number of possible explanations. Northwestern may prefer applicants who have either a very high LSAT or a very high GPA (sometimes known as "splitters"), whereas Cornell may prefer people who were reasonably (but not quite as) high on both metrics. Perhaps Northwestern's 25^th percentile LSAT is lower because it has enrolled more students who have been out of college for a longer period of time, in which case LSAT scores may be less important than real-world accomplishment. Or maybe some different reason altogether.

We are not suggesting here that having medians that diverge from a school's 25^th percentile numbers is inherently problematic (although it might be problematic for law schools that, unlike Cornell and Northwestern, have many low LSAT performers and that may have low bar pass rates); instead, we are simply saying that when an applicant is looking at the student bodies of schools in which s/he is interested, it may make sense to look at more than medians. We note, in this regard, that the ABA "Standard 509 Report" website has a good tool that enables users to search and compare law schools along these axes.

We should add that if critics believe that U.S. News creates a perverse incentive for schools to admit "splitters" (perverse in the sense that pedagogical considerations would otherwise incline these schools to admit folks who present reasonably strong LSAT scores and GPAs instead), there might be ways to tweak the U.S. News student-quality formula, but any such changes could create other incentives or disincentives about which other observers might complain.

#4. Looking Behind the Employment Numbers

Two final observations warrant mention. First, one of the most volatile-and thus influential as to many schools' rankings in a given year-factors in U.S. News is the percentage of graduates who have a full-time, long-term, law-related job ten months after graduation. Certainly a school's ability to help place its graduates is an important factor in any decision about where to attend law school. But note, importantly, that the percentage employed in full-time, long-term, law-related jobs does not by itself convey any information about the particular type of jobs a school's graduates are getting. U.S. News does not present or make use of salary data (although it did decades ago); it does not break jobs down by geography; as of last year it did not even tell consumers how many jobs are funded by the graduate's law school or home university. We should add that some law school- or university-funded jobs are quite meaningful and reasonably paid, whereas others are less so. In any event, here too, the ABA provides much more finely grained data on job type and salary; applicants should consult the web page on which the ABA collects and presents the employment surveys for all ABA-approved schools.

#5. Follow (or at Least Examine) the Money

Finally, speaking of money, we should point out that there is one factor in U.S. News as to which the underlying data and the use to which U.S. News puts it are harder to see and thus harder to analyze, and that is the so-called "faculty resources" component that looks at "average fiscal expenditures per student for instruction, library and supporting services." This inscrutable factor accounts for about 10% of a school's overall score and often determines where a school lands within a bunched-up grouping. For example, if one looked at all the other major U.S. News components-peer academic assessment, lawyer/judges assessment, median LSATs/GPAs, acceptance rates, placement rates, bar pass rates, student-faculty ratio, etc.-Yale should be tied with, or even slightly behind Harvard. And yet Yale consistently beats Harvard for the top spot in the rankings by a non-trivial margin; last year it was four overall score points out of a possible 100. And this difference seems likely accounted for by the fact that Yale spends more-although precisely how much more is hard to know-per student than any other school by a significant margin.

Now four points out of 100 in the U.S. News overall score may not seem like a lot, but given how bunched up schools are, four points can be a big deal. (Yale's four-point lead over Harvard last year was four times larger than Harvard's lead over #3 Stanford, and four points farther down the scale was all that separated #29 from #42.) And Yale's perch atop U.S. News every single year for over two decades likely accounts for its qualitatively better yield among admitted applicants than that of any other law school, thus enabling Yale essentially to have first choice among the applicant pool. (Yale these days admits only around 250 people to get 200 to attend, generating a yield of about 80%, compared to Harvard's yield of about 60%, which itself is much higher than the yields of almost all other top law schools.)

To say that expenditures-per-student can have these important consequences on a school's ranking and its yield is not to imply that this spending criterion is illegitimate. But one cannot help wondering: if the additional spending-per-student isn't elevating placement rates or lowering student-faculty ratios, or allowing a school to obtain a faculty that is seen by other law professors as superior to that of other schools (and all of these are already measured directly and counted by the ranking system), precisely why should the money matter so much? The U.S. News methodology may result in double-counting of many considerations, but dollars spent may be a particularly problematic example. Yet there may be responses: perhaps Yale's resources don't increase its placement rate, but affect the kinds of jobs its graduates are able to obtain. For example, maybe its resources allow more students to undertake their own original research, which leads to more jobs in the academy. And so forth. Again, as with most other features of the U.S. News rankings that we've discussed above, our goal here is not so much to provide definitive answers as to cause students to think a bit more critically as they consume the bottom-line ordinal rankings for which U.S. News is best known.

Cross-posted from Justia's Verdict.

About a month ago I wrote an essay for this website commenting on the drop in bar passage rates in many states in the fall of 2014. I focused on the large national decrease in scores that test takers received on the so-called Multistate Bar Exam (MBE), a 190-question multiple-choice exam that accounts for much of the entire bar exam in most states, and on remarks made by Erica Moeser, who heads the organization that makes and scores the MBE (the National Committee of Bar Examiners or NCBE), to the effect that this year's takers were "less able." Much has happened since I wrote that essay: on November 25, about 80 law deans (I should note my dean at UC Davis was not among them) joined in a letter to Ms. Moeser requesting that "a thorough investigation of the administration and scoring of the July bar exam" be conducted, and that "the methodology and results of the investigation . . . be made fully transparent to all law school deans and state bar examiners" so that there might be "independent expert review" of the exam's "integrity and fairness"; on December 18, Ms. Moeser responded with a letter, and an attached essay from NCBE's quarterly magazine that provided additional analysis and data; and other states, including the largest state, California, have in recent weeks released details on bar passage within their jurisdictions. In the space below, I analyze some of these recent developments, with specific reference to what likely accounts for the large drop in MBE performance (and thus bar pass rates in many states) this year.

Ms. Moeser's Letter Defends the NCBE Against Implicit Criticism by Law Deans

I begin with Ms. Moeser's formal responses to the law deans. The tone of her letter suggests she feels a bit attacked by the deans (and her perception in this regard is probably understandable). She apologizes, sort of, for using the term "less able" in a way that might suggest anything other than the simple fact that the 2014 test takers did not do as well as did test takers the previous year. But even as she makes clear she did not intend to offend or distract by using that term, she seems to bristle at a term used by the deans in their letter: "integrity." Ms. Moeser appears to understand the deans' request for an examination of the "integrity and fairness of the July 2014" exam as questioning the honesty or professional qualifications of NCBE personnel. In reality, I suspect the deans used the word "integrity" in reference not to the personal or professional character of the test makers, but to the soundness of the July 2014 test itself. As we all try to get to the bottom of why test takers scored less well this year, it would be nice not to be overly burdened by linguistic sensitivities.

On the question of whether the 2014 exam was more difficult than usual, Ms. Moeser's letter reassures deans that NCBE has "reviewed and re-reviewed" every "aspect of [its] methodology and execution[,]" and that the July 2014 test has been examined multiple times and by different, independent psychometricians to guarantee that it was no more difficult than the 2013 test or previous tests. Ms. Moeser makes clear, however, that "the results of our studies will not be revealed publicly [because] [o]ur systems are proprietary, and security is essential." Her steadfast refusal to turn over specifics about NCBE's "equating" process (used to ensure that difficulty remains constant across test administrations) may not sit well with some of the deans who want outside experts to be able to verify NCBE is comparing tests properly. I can certainly understand that the NCBE does not want to make public the actual text of the questions it has used (and might continue to use) in order to equate the difficulty of one test administration with another, but perhaps NCBE could share more details about the way equating questions are selected, and on the precise statistical inferences that it draws based on taker performance on these equating items. Maybe there is no middle ground, but I would not be surprised if some deans persist in seeking more technical detail.

Ms. Moeser's Essay Contains Some Unhelpful Explanations

The magazine essay Ms. Moeser attaches to her letter provides additional context, and also includes data about LSAT scores for students at the 25^th percentile of LSAT performance for each ABA-approved law school for the classes that entered in the fall of 2010, 2011, 2012 and 2013. (Data for fall 2014 became available just a few weeks ago and weren't included in Ms. Moeser's essay.) One the one hand, a number of points Ms. Moeser makes in her essay do not seem particularly relevant to understanding the dramatic aggregate drop in MBE scores in 2014 from 2013. For example, she points out that the Law School Admissions Council (LSAC) now asks schools to report the highest LSAT performance for each law student, rather than the average LSAT performance for each. This change made by LSAC might make it harder for a law school to compare and analyze its own bar exam performance over a long period of time, but since LSAC made this change before the class graduating in 2013 entered law school (in fall of 2010), the reporting policy would not seem relevant to comparing the bar performance of the class graduating in 2013 and the one graduating in 2014 (the latter of which saw the dramatic drop in bar performance).

Ms. Moeser also observes that some law schools accept more transfer applicants these days (perhaps in part because this is a way to keep a school's headcount and tuition dollars high without diluting the admissions credentials of the entering first-year class, since the characteristics of persons who transfer in as second-year students aren't included in those credentials). This phenomenon undoubtedly exists at some schools, and it may complicate a particular school's efforts to compare its current bar passage rates with those from an earlier era (when it didn't accept as many transfers), but this modern increase in transfers can't easily explain a national drop in MBE performance this year, since every student who transferred presumably would have taken the MBE whether s/he transferred or not. I suppose the transfer phenomenon might affect aggregate MBE performance if there were some "mismatch" effect (of the kind that Rick Sander has asserted, and that his critics reject, with respect to affirmative action) taking place when people transfer to schools for which they are not academically suited. But Ms. Moeser does not suggest this (or any other) theory for why an increase in transfers might affect aggregate bar performance, and I am unaware of any evidence of a transfer mismatch effect. Moreover, the number of transfers who graduated in 2014, while larger than in past years, wouldn't seem big enough to move the aggregate bar performance numbers very much this year even if there were such an effect.

Ms. Moeser's essay also posits that curricular changes in law school, ranging from an increase in ungraded externships and other experiential learning offerings, to fewer (or shorter) required black-letter courses, may be causing test takers to be less well-prepared for the bar exam. But any such curricular changes have been taking place gradually across the country, and unless there were some tipping point that was reached with respect to the class that graduated in 2014 compared to the class that graduated a year earlier, these changes would not likely contribute greatly to an abrupt and significant change in bar performance from one year to the next.

Ms. Moeser's Essay Also Contains Some Probably Fruitful Explanations

On the other hand, Ms. Moeser does adduce facts that tend to support her contention that the July 2014 MBE was no more difficult than earlier tests. First, she says that 2014 test takers performed worse on the very "equating items drawn from previous July test administrations" than did students from past years. Assuming the equating items are reasonably well chosen, weaker performance on those identical items would be indicative of a group that would perform more poorly on the test generally.

Second, she points out that the July 2014 test takers also performed more poorly relative to prior law graduates on the Multistate Professional Responsibility Examination (MPRE)-which most graduating 2014 students took earlier in 2014 or in 2013. Ms. Moeser's suggestion that recent score declines on the MPRE (which tests legal ethics in a multiple-choice format similar to the MBE's) can be seen as precursors to the 2014 MBE decline is interesting, and may bolster her conclusion that the MBE was properly equated and scored-provided that the MPRE has itself been properly equated and scored and that the MPRE and the MBE exams test similar skills.

Third, and probably most powerfully, she describes how many law schools, even as they have reduced entering class size, have enrolled lower LSAT performers, perhaps especially importantly at the 25^th percentile of a law school's entering class. In addition to this, she points out that we know nothing about matriculants "below the 25^th percentile . . . ; the tail of the curve leaves a lot of mystery, as the credentials of candidates so situated. . . and the degree of change [from previous years] are unknown." To be sure, this may be a group at many law schools that often struggles with bar passage, and a decline in the 25^th percentile LSAT performance (and within that bottom of a school's LSAT quartiles) could explain lower bar pass rates at many schools.

If we look at the 25^th percentile LSAT scores at all the nation's ABA-approved law schools for the classes that entered in 2010 (and took the bar in 2013) and the classes that entered in 2011 (and took the bar in 2014), we see that, on average, 25^th percentile LSAT scores slipped by about half an LSAT point. Perhaps worse yet (because decreases in LSAT scores in the higher ranges of LSAT performance may have less importance to bar passage), the number of law schools whose 25^th percentile LSAT performance was in the bottom half of LSAT scores nationwide (an LSAT score of 151 or below) grew from 62 schools for the class entering in 2010, to 71 schools for the class entering in 2011. And, as Ms. Moeser points out, the (unobserved) drop-off within the bottom LSAT quartile at many schools may be more ominous indeed.

Of course, as I said a month ago, weaker LSAT performance might be accompanied by higher college GPAs and other indicia of academic strength. And some schools suffering LSAT score drops might be shrinking in size quite dramatically, such that their effect on national bar pass rates might be lessened. So much more analysis is needed before the full picture is understood. But it appears that beginning with the class that entered law school in 2011, there has generally been some decrease in LSAT performance, and that such decrease may account for a good chunk (though likely not all) of this year's lower bar performance.

What Preliminary Analysis of California's Recently Released Data Suggests

The results released this week in California seem to be consistent with this account. Overall, it was a tough year for bar passage in the Golden State. One out of every three first-time takers from ABA-approved schools throughout the country failed the California bar exam. Among the particularly depressing facts is that first-time African American takers from ABA-approved law schools had a pass rate of only 42%. When we look at first-time takers from ABA-approved schools located in California (who often do better than takers from ABA-approved schools in other states), Latina/o takers suffered a big decline this year; whereas White and Asian first-time California ABA-school takers saw their pass rates drop about 5% as compared to 2013, Latina/o takers saw their pass rate drop over 10%, to just 59.5%. At least four well-established California schools--UC Hastings, University of San Francisco, Santa Clara and Southwestern--experienced first-time pass rates (of 68%, 61%, 60% and 54%, respectively) that were the lowest in 18 or more years. (The data I had went back only to 1997, so this year's performance might well be the worst in more than 20 years for these schools.)

And there does seem to be a correlation between declines at the 25^th percentile LSAT score and lower bar pass rates among the California schools this year. Eleven schools saw their 25^th percentile LSAT score drop between the class that entered in 2010 and the class that entered in 2011, and 9 of these schools saw their bar pass rates also drop. (One of the schools that saw its 25^th percentile LSAT score go down but whose bar pass rate did not decline was USC, and its 25^th percentile LSAT remained quite high-above 160-for the class entering in 2011.) The California school that saw the sharpest drop at the 25^th percentile LSAT score in fall of 2011, UC Hastings, suffered, as I noted above, its worst bar pass rate in decades. And among the three schools in California whose 25^th percentile LSAT scores increased in fall 2011 compared to the year before, two of those schools (UC Davis and UC Berkeley-both of whose 25^th percentile LSATs were above 160 in 2011) saw their bar pass rates increase a bit (UC Davis from 85% in 2013 to 86% in 2014, and UC Berkeley from 85% in 2013 to 88% this year.) Only four schools statewide saw bar pass rates increase at all, and Berkeley's increase of 3% was the largest.

Obviously, as mentioned earlier, much more than a school's 25^th percentile or median LSAT score goes into its bar pass rate, and year-to-year variations in bar passage are unavoidable at each school, even if student academic quality remains constantly high. There is likely no single factor that explains all of this year's bar performance decline. But Ms. Moeser's suggestion that we delve deeply into the admissions and academic support functions of law schools if we want to raise pass rates (as long as we have to live with a questionable device like the bar exam) is well worth heeding. And incoming admissions numbers do not bode well for bar pass rates for the next few years. In California, for example, the four schools I mentioned whose bar pass rates are at twenty-first century lows (UC Hastings, University of San Francisco, Santa Clara, and Southwestern) all have seen significant slippage at the 25^th percentile in the last three years since the fall of 2011. And nationally, the number of schools whose 25^th percentile LSAT score is below the national median score (i.e., 151 or below) grew again in the fall of 2012 (from 71 to 80), and yet again in the fall of 2013 (from 80 to 90), and likely grew again in 2014. Unless bar examiners across the country lower the threshold for passage (which in most states they insist they never do), or unless law schools find some new, highly effective academic success tools to help students do better on the bar--and find them very quickly--I fear that the difficult news about bar pass rates we experienced this fall will recur each year for the foreseeable future.

Cross-posted from Justia's Verdict.

As the fall semester approaches and college freshmen prepare to start school, there is renewed criticism of the University of California's decision, implemented over the last few years at all or nearly all of the system's campuses, to increase the number and percentage of out-of-state and international college students. The harshest criticism comes from those California students (and their parents) who are finding it increasingly hard to be admitted to UC campuses, especially the most competitive ones like UC Berkeley. Many of these students and parents worry that the University system, motivated by a desire to obtain out-of-state tuition monies, is admitting lesser qualified people from outside California in such a way as to displace more highly qualified California applicants who otherwise might be admitted. Critics feel this is a betrayal of the University's basic purpose, which is to serve the needs of the State. After all, it was California citizens and taxpayers who created the UC and built it up into the best public higher education system in the world. In the space below, I try to debunk some of the myths and misstatements concerning this controversy, and to shed light on the crux of the problem.

The Factual Realities and Myths Underlying the Criticism

Let us begin with the basic factual claims critics often make. Some of these assertions are verifiably true. It is certainly the case that the UC seems intent on yielding more out-of-state and international undergraduate students at its campuses than it did years ago. For example, the system (according to reports in the Los Angeles Times and the San Francisco Chronicle) admitted around 3,000 more out-of-state freshmen in 2014 than in 2013, and in 2013 the number was higher than in 2012 by about another 1,000. Moreover, even as the number of admittees from outside the State is increasing, the number of admitted applicants who come from within California is holding steady or, at many campuses, dropping; only three campuses admitted more California residents in spring of 2014 than in 2013 (although some other campuses, like Berkeley, might have admitted additional in-state students off the wait list over the past few months.) And the percentage (as distinguished from the absolute number) of out-of-state and international students is also on the rise; the share of non-Californian undergraduates within the system nearly tripled from the 2007-2008 year (4.6%) to the 2013-2014 year (11.4%). Finally, it seems true that the additional revenue that students from outside California generate explains part of recent trends. Base tuition for in-state students is around $13,000/year, whereas out-of-state and international students are charged more than $35,000, and UC officials have themselves said that the additional revenue is helping the system.

But many of the key factual assertions made by critics are simply false. UC spokespersons have vehemently and repeatedly said that out-of-state admittees are more, not less, qualified (as judged by SAT scores, high school GPAs and other numerical metrics) than in-state admittees. That doesn't mean that every non-Californian who was admitted had higher grades and test scores than every in-state applicant who was denied (because admissions decisions take account of other, non-numerical, qualitative factors like artistic or musical talent, etc.), but it does mean that, in the aggregate, the numerical credential bar is higher for applicants outside the State.

On top of that, non-Californians bring one credential that in-staters generally can't: geographical diversity. Great universities pride themselves on drawing students from (and having name recognition and alumni contacts throughout) the entire nation and world. Such diversity adds to the mix of distinct outlooks on campus, and increases the range of opportunities for folks when they graduate. As UC spokesperson Diane Klein is quoted as saying: "Undergraduate and graduate students from throughout the United States and the world bring fresh perspectives and, in an increasingly interconnected world, help California students better prepare to operate in the global economy." So (even granting that UC exists largely to serve the State) having more non-Californians may offer benefits to the Californians who are there. (The high quality and geographic diversity that out-of-staters bring may partially explain why many states that aren't as large and diverse as California, like Michigan and Virginia, have for decades enrolled high percentages of out-of-state students in their flagship public universities.)

The Key Question of Whether More Non-Californians Means Fewer Californians

But perhaps the biggest mistake that critics make is to assume that having more out-of-state and international students means that fewer in-state applicants can be admitted. Precisely the opposite is often the case. The question isn't whether the number of in-state admittees has been stagnant over time (that may very well be the case because of decreased funding by the State legislature); the question is whether the number of in-state admittees would be smaller still if non-Californians weren't being admitted. Why might admitting non-Californians allow more Californians to be admitted? Because every non-Californian is charged an extra $23,000 in tuition beyond what in-staters are charged. And that money may more than pay for the out-of-stater, creating a surplus that can be used to subsidize an in-stater.

The UC has fixed costs (physical plant, tenured faculty, etc.) that it must pay no matter what, and variable costs (relating to non-tenured faculty and staff, utility expenses, healthcare and security obligations, insurance, etc.) that increase as the number of enrolled students rises. Because of fixed costs, the expense the University incurs, on the margin, in educating additional students may be somewhat smaller than its average cost-per-student. Of course, there may be an upper limit on how many students can fit within a campus. But there are also points on the spectrum where more students could be accommodated without major long-term infrastructural investment, provided we could find money to pay for the marginal (variable) costs of adding them.

For example, suppose that, at some point on the cost curve, the marginal cost of educating an additional student is about $24,000. Enrolling an additional in-state student alone at that point would not be feasible; she would cost UC another $24,000 but she would pay only $13,000 in tuition, yielding a deficit of around $11,000. But if an out-of-state student were enrolled, he would pay $35,000, which is enough to pay for his own marginal cost ($24,000) as well as the deficit created by the additional in-state student. So, in this simplified example, adding an extra out-of-stater increases the aggregate number (and perhaps also the percentage) of non-California enrollees, but does so in such a way as to allow for the enrollment of an additional in-state student who otherwise could not be admitted. Again, the relevant question (even for the critics) shouldn't be how many in-staters and out-of-staters are being enrolled. Instead, it should be how many in-staters could be enrolled if we cut back on out-of-staters. And the answer is likely going to be: fewer than we have now.

Should In-Staters Be Given the Option of Paying Higher Tuition?

So it is clear that admitting persons who are are willing and able to pay a higher tuition can permit the University to accommodate additional persons who pay the lower tuition rate. All of this brings up the question: Why not offer admission to some of the in-state applicants who are currently being denied if these applicants are willing to pay the higher tuition rate? After all, if the problem is simply a lack of revenue (owing largely to reduced allocations from the legislature), why shouldn't we give in-staters (whose parents and ancestors paid for the University) the first option to pay additional tuition, rather than offering those higher-priced slots to non-Californians?

Imagine, for example, that we said to the 500 in-state applicants who were denied admission to UC Berkeley but whose application files were the closest to making the cut (the first "500 out," to use a March Madness Bracketology term): "You can come to Berkeley, but only if you are willing to pay a tuition rate higher than that being charged to other in-state admittees, who are slightly more worthy of admission than you are." How would that go over? I have a few (preliminary) thoughts.

First, some might object to this approach because, as noted earlier, admitting in-staters who are willing to pay more instead of out-of-staters deprives the University of the ultra-high-quality students and geographical diversity that non-California enrollees are currently providing. But put these factors to one side. Imagine that out-of-state enrollees had the same grades and test scores as the "first 500 out" group I described above. And assume that, because California is almost a nation state unto itself, we already had sufficient geographic diversity without importing out-of-staters.

Even then, I suspect many folks would reject the approach I describe simply because it seems wrong to "sell" UC seats to Californians who have the money to pay for them. Among those "first 500 out," only those families who can afford the higher tuition would be able to accept the offer, such that ability to pay would formally and openly become a criterion of admission. And that is in conflict with the notion that access to a slot in the UC is supposed to be based on your talent, your hard work and your performance, not on your parents' bank account. (Charging out-of-staters higher tuition doesn't quite raise this conflict, because their higher tuition is justified not by their lesser qualifications but rather by their lack of investment in the system-a perfectly reasonable factor to use in setting tuition-and thus need not be thought of as "selling" seats to lesser qualified folks the way charging more to some in-state enrollees than to other in-staters, based on the strength of their admissions files, would.)

Notice that there are some public areas, such as toll roads and (now) security lines at airports, where we have allowed people to gain special access if they are willing and able to pay for it. But we may tolerate such commodification in these settings because we don't think of allocating resources in these arenas as involving a meritocratic assessment the way we conceive of college admissions. We also don't think of roads and airports as gateways to economic mobility the way higher education has been billed. As a result, letting people buy their way out of car traffic and long boarding lines doesn't require that we confront-and grapple with the inaccuracy of-deeply held and desirable societal values such as the notion that college ought to be equally available to anyone who has the talent and work ethic to pursue it.

A generation ago, Guido Calabresi (who was a professor and then Dean of Yale Law School and who now is a federal appellate Judge) and Phillip Bobbit (a law professor at The University of Texas School of Law) wrote a book called "Tragic Choices," in which they discussed how difficult it is for society to move from a bureaucratic or professionalized allocation of scarce resources (the way university admissions typically operate) to a market-based approach, when doing so starkly exposes the frailty or falsity of important societal ideals (like equal educational access). We all know that at some important level family wealth makes access to college easier (and lack of wealth makes college for many quite difficult), but explicitly selling off UC slots to wealthy in-staters would require us to confront unpleasant truths in a way that we may not simply be able to handle.

Private universities can (and sometimes do) take a student's ability to pay into account at the admissions stage, and many such universities do admit less qualified yet wealthy applicants. But these institutions get to make their decisions outside the public view. Importantly, because of transparency requirements concerning public college admissions and tuition-setting processes (which reflect another deeply held societal norm-that public institution operations should be visible), there is no easy way to sell UC seats without everybody seeing exactly what is being done. That may be why (as far as I am aware) no high-level policy-makers in California have seriously floated the approach I discuss here.

Notice also that selling off some UC seats to wealthy in-staters might allow significant numbers of additional poor or middle class Californians to attend (so long as the sales price exceeds the marginal cost of educating the wealthy student.) Indeed, one could imagine a scenario in which UC seats would be auctioned so that a few mega-wealthy but less qualified applicants would end up subsidizing large numbers of lower or middle class enrollees. So if our focus were merely on increasing the absolute number of highly qualified lower or middle class Californians who could be accommodated within UC, a regime in which the University sold or auctioned off seats might have some upside. But that regime would do major damage to important societal ideals.

Finally, notice that these tradeoffs between the accomplishment of pragmatic goals and the preservation of (sometimes unrealistic but nonetheless attractive) societal values are not always static. During the Civil War, for example, draftees were able to buy their way out of military service by hiring people to take their places. Today, we would (rightly) find such a practice abhorrent; we would not permit it because it would expose too starkly the (persistent) reality that it is the poor who are ultimately forced (by economic distress) to bear the brunt of fighting our wars. In suggesting that things change over time, I am not predicting that UC seats will be formally commercialized anytime soon. But I will point out that many folks, myself included, did not fully foresee all the changes in public higher education funding (especially as to professional schools) that have taken place over the last two decades. And I could imagine ways of possibly moving toward the approach I describe above without seeming to sell seats so explicitly-for example, charging all in-state admittees a higher tuition but giving all but the last 500 admitted a "merit" scholarship so that the net price for almost everyone remains unchanged. Indeed, many public law schools-whose state subsidies were cut earlier and more deeply than those at the corresponding public undergraduate institutions-have moved to this kind of model. Some public colleges may end up following suit to address their revenue problems, even though many of us would favor restoration of legislative funding even more. So never say never.

The Berkeley Journal of Gender, Law & Justice has published a special symposium issue devoted to Presumed Incompetent: The Intersection of Race and Class for Women in Academia, the recent book edited by Professor Angela Harris with Professor Gabriella Gutiérrez y Muhs of Seattle University, Professor Yolanda Flores Niemann of the University of North Texas, and Professor Carmen G. González of Seattle University School of Law.

The book, published in 2012 by Utah University Press, features personal narratives and qualitative empirical studies that expose the daunting challenges faced by academic women of color as they navigate the often hostile terrain of higher education. The special issue of the Berkeley Journal of Gender, Law & Justice is based upon a March 8, 2013 symposium that featured more than 40 speakers who were invited to celebrate and respond to the book. Among the contributing scholars is Dean Kevin R. Johnson, whose article "Important Lessons for University Leaders" (co-authored with Maria P. Lopez) appears in the issue.  

Angela Harris is one of the nation's foremost scholars in the fields of critical race theory, feminist legal theory, and civil rights. She joined the UC Davis faculty from UC Berkeley School of Law in 2011.