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January 5, 2015

Additional Thoughts (and Concerns) About the Low Bar Pass Rates in California and Elsewhere in 2014

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 25th 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 25th percentile of a law school's entering class. In addition to this, she points out that we know nothing about matriculants "below the 25th 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 25th 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 25th 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, 25th 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 25th 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 25th percentile LSAT score and lower bar pass rates among the California schools this year. Eleven schools saw their 25th 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 25th percentile LSAT score go down but whose bar pass rate did not decline was USC, and its 25th percentile LSAT remained quite high-above 160-for the class entering in 2011.) The California school that saw the sharpest drop at the 25th 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 25th percentile LSAT scores increased in fall 2011 compared to the year before, two of those schools (UC Davis and UC Berkeley-both of whose 25th 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 25th 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 25th percentile in the last three years since the fall of 2011. And nationally, the number of schools whose 25th 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.

May 1, 2014

UC Davis law students seek to right historic wrong with posthumous California Bar admission of Chinese lawyer

More than a century after a New York lawyer was denied the opportunity to practice law in California because of state laws that barred Chinese immigrants from most careers and opportunities, UC Davis law students are seeking his posthumous admission to the California State Bar.

The students in the UC Davis School of Law Asian Pacific American Law Students Association (APALSA) are asking the State Bar of California, and eventually the California Supreme Court, to admit Hong Yen Chang, who was denied a license to practice law in California in 1890.

Chang attended Yale as part of the Chinese Educational Mission, a pioneering program initiated by the Chinese government. He then left the United States and later returned on his own to study law. He earned a degree from Columbia Law School in 1886 and sat for the New York bar exam by special act of the legislature. When he was admitted to the New York state bar, The New York Times reported that Chang was the first Chinese immigrant admitted to any bar in the United States. In 1890, he came to California with the intention of serving San Francisco's Chinese community as an attorney.

At that time, the federal Chinese Exclusion Act banned Chinese immigrants from naturalizing as citizens, and a California law prohibited noncitizens from practicing law in the state. Taken together, these laws made it impossible for people of Chinese descent to earn law licenses in the state. Chang petitioned the California Supreme Court, but was denied admission.

He went on to a distinguished career in banking and diplomacy, but his story was not forgotten. Now, the students are seeking a symbolic victory on behalf of Chang and others who suffered as a result of laws that discriminated against the Chinese.

"Admitting Mr. Chang would be a powerful symbol of our state's repudiation of laws that singled out Chinese immigrants for discrimination," said Gabriel "Jack" Chin, a professor at UC Davis School of Law and APALSA's faculty adviser on the project. "At the time Chang was excluded from the practice of law in California, discrimination against Chinese persons was widespread. Congress prohibited all Chinese immigration. Even the California Constitution dedicated an entire article to restricting the rights of Chinese residents."

The UC Davis School of Law California Supreme Court Clinic is representing APALSA in the case. It has formally requested the State Bar to support the project and will file a petition with the California Supreme Court seeking Chang's admission. The clinic, the first and only law school clinic of its kind, represents parties and amici in a wide range of both civil and criminal matters pending before the California Supreme Court.

Other states have posthumously admitted applicants who were excluded from their respective bars based on similar discriminatory laws. In 2001, the Washington Supreme Court admitted Takuji Yamashita, a Japanese immigrant who had been refused admission to the profession in 1902. And in 2010, the Pennsylvania Supreme Court posthumously admitted George B. Vashon, an African American who had been denied admission in 1847 because of race.  

Chang's descendants remain in the San Francisco Bay Area, including grandniece Rachelle Chong, the first Asian American to serve as a commissioner of the Federal Communications Commission and of the California Public Utilities Commission. "In my generation, our family is extremely fortunate to have three lawyers admitted to the California State Bar: my cousins Suzanne Ah Tye, Kirk Ah Tye, and myself," said Chong. "It would be fitting and right to have my granduncle's exclusion reversed by the California Supreme Court to ensure that justice, albeit late, is done. Our family is honored that the UC Davis APALSA students have taken up the issue of righting a terrible wrong."

"From its inception more than 40 years ago, UC Davis School of Law has been dedicated to the ideals of social justice and equality espoused by Dr. Martin Luther King Jr., for whom our law school building is named," said Dean Kevin R. Johnson. "This effort by our students and faculty to admit Hong Yen Chang to the California State Bar stands strongly within that tradition and is deserving of support."

For more information on the effort to gain bar admission for Hong Yen Chang, contact Professor Gabriel "Jack" Chin.

August 7, 2012

OUT and ABOUT: The LGBT Experience in the Legal Profession

ABA SOGI Commission

For the past three years, I have had the pleasure and the honor of serving as the Chair of the ABA Commission on Sexual Orientation and Gender Identity (SOGI Commission). The SOGI Commission was created in August 2007 by approval of the Board of Governors of the ABA. Its mission is to promote full and equal participation in the legal profession and the justice system without regard to sexual orientation or gender identity. The SOGI Commission seeks to further this mission through education efforts, policy development, outreach and relationship building, and other activities.

The SOGI Commission has accomplished much in its short history. For example, the SOGI Commission worked with other ABA entities and leaders to enact ABA policy supporting marriage equality for same-sex couples. This policy recommendation was overwhelmingly approved by the ABA House of Delegates in August 2010 with the support of many ABA leaders, including many Past Presidents of the ABA.

With the assistance of the SOGI Commission, the ABA submitted letters to Congress and to the Department of Defense in April 2010 urging the repeal of Don't Ask, Don't Tell. Congress approved the repeal of Don't Ask, Don't Tell about six months later. More recently, the Commission helped draft a letter to Congress urging the enactment of the Employment Nondiscrimination Act (ENDA).

More information about the SOGI Commission and its work is available in our Annual Report.

Out and About Publication

Currently, the SOGI Commission is working together with the National LGBT Bar Association to produce an anthology. The purpose of this anthology is to share the experiences of lesbian, gay, bisexual, and transgender (LGBT) attorneys, academics, and jurists in the legal profession, through their own words. We see this publication as a means to educate the legal profession and the general public about this diverse group, its contributions, and its struggles. The book will also serve as an inspiration to other LGBT people in the profession and to LGBT law students.

Currently, the SOGI Commission is in the process of identifying potential contributors for the publication. The Commission seeks to make the publication as diverse as possible in order to represent the breadth of LGBT persons in all aspects of the profession. Moreover, our hope is for the stories to be relevant for a multitude of readers, whether or not they identify as LGBT.

For more information about how to contribute, please visit the SOGI Commission's website.

January 28, 2011

You Can’t Tell a Book by Its Cover

In my career as a lawyer in Davis, I had a surprising and painful but beneficial discovery of the truth of the common saying that you can't tell a book by its cover. It all started when a local bank in the community asked me to handle a case for two of its customers.

At the appointed time, my new clients, a husband and wife team, showed up. When I saw the couple, I felt that my jaw had dropped and that I would fall through the floor. They were Arabs!  My belief was that they and their compatriots had many times sworn to kill all the Jews in the Middle East and wipe the State of Israel off the map. They were the enemy to me and to my support of the State of Israel.  I was also awakened to the reality that this husband and wife team knew that I was Jewish. In their eyes, I was the enemy. The couple had dark complexions, black hair, and spoke with a Middle Eastern accent.

I quickly got over the shock of this introduction so that everything proceeded calmly and cordially. I was able to gather from my clients all of the information relevant to their case as well as answer questions that they asked.

Then we set up an appointment to meet a few days prior to going to court so that we could take care of any last minute items. Right after they left, I started struggling with some profound soul searching. I had been raised in a family that believed in and practiced tolerance. But I had failed to live up to all that I was taught when put to the test of dealing with my new clients.

I knew that I could not be effective in representing the interests of my clients if I did not overcome my bias. Every lawyer has a duty to represent a client zealously and within the bounds of the law. I could not do this if my personal views conflicted with those of my clients.

Thinking further, I remembered the experience of patriot John Adams way back in 1770 in defending the British soldiers who had shot protesting citizens in the Boston Massacre. Despite sharing the views of the protestors, Adams successfully defended the British soldiers because he believed that they were entitled to a fair trial. Adams then experienced insults and ridicule from the city's "patriots." As well, his law practice diminished because few patriots would deal with a "traitor."

I remembered too the famous Skokie, Illinois case that took place in the 1970's. A group of Nazi sympathizers planned to march in Nazi uniforms in the town of Skokie where they knew that a large part of the Jewish population was made up of Holocaust survivors.

The marchers were denied a city permit to have their parade. One of the marchers then sued the city of Skokie, claiming that his right of free speech was being denied. The marcher was represented in court by a Jewish lawyer who believed that the principle of free speech was more important than the subjectivities of the client or his lawyer. The lawyer won the case for his marcher client.

I was impressed by these two historical incidents although I did not believe that the case of my clients was as profound as those two. However, influenced by those two incidents, I satisfactorily resolved my own inner conflicts and proceeded with the case. We went ahead and happily gained an easy victory.

The story does not end here. Several weeks later, when I was walking downtown early one Saturday afternoon, I bumped into two friends, Barbara and Elmer. They were dressed very formally. I asked them whose wedding they had attended. They replied that they had not been to a wedding but rather a Bar Mitzvah, the first one that they had ever experienced and that they still did not understand everything about the ceremony.

I explained to them that a Bar Mitzvah is a coming of age religious ceremony that takes place when a boy reaches 13 years of age. At that time, he goes to a synagogue and affirms that he will honor a commitment to observe the Commandments spelled out in the Old Testament and related writings.  Girls go through the same sort of celebration and it is called a Bat Mitzvah. The terms are loosely translated as son or daughter of the commandment. The ceremony is followed by a festive reception with good food being served accompanied by good music being played.

Who do you think were the joyful and proud parents of the happy Bar Mitzvah boy? Yes, it was my client and his wife, the "Arabs." Following the war that Egypt and other nearby Arab countries waged unsuccessfully against the State of Israel when it was founded, Jewish citizens of those Arab countries were forced to leave their birth places where they and their ancestors had lived for hundreds of years. It is estimated that more than 800,000 people had to leave and were not permitted to take much with them. My client and his wife, both Egyptians, were part of this exodus.

I have never seen the husband or his wife since our day in court. But the entire experience of dealing with them has led to changing my outlook and behavior for the better. My jaw does not drop nor do I feel that I will sink into the floor when I now encounter this kind of experience. I have learned to be an observer, calmly look at each such incident, and, with my personal views under control, proceed to the next step.

Not too long after this episode with my clients, I had a great opportunity to test whether I had really learned from the experience. I was at the Rome airport waiting at the international terminal to catch my flight back to the United States. I noticed a grandmotherly looking Arab woman, dressed in native clothing and wearing a head scarf. She was walking around, flight ticket in hand, and showing signs of confusion. I guessed that she did not read or speak Italian or English and, of course, I did not speak Arabic.

I walked over to the lady and gestured that I wanted to see her flight ticket. She handed it to me and I quickly saw that both of us were on the same flight. I gestured to her to sit down and wait and that I would take her to the boarding area when the flight was ready for us. In due time, I escorted her to the boarding area where we boarded the airplane together. Then I personally led her to her assigned seat. She smiled and gave a silent nod of thanks.

I cheerfully walked down the aisle to my seat and sat down feeling that doing my homework had paid off. I was also optimistic that I could cope successfully with any other of my demons that dared to show themselves.

August 9, 2010

Elitism and Education (Part I): Class and the Legal Profession

I've been contemplating a series on "Elitism in Education," but the posting of a new paper by Richard Sander and Jane Yakowitz  prompted me to change the title to "Elitism and Education."  That's because their new study, "The Secret of My Success:  How Status, Prestige and School Performance Shape Legal Careers," suggests that an elite law school education is not as important to a successful legal career as conventional wisdom suggests.  The draft paper is not yet peer reviewed, but here's a summarizing excerpt:

The consistent theme we find throughout this analysis is that performance in law school--as measured by law school grades--is the most important predictor of career success.  It is decisively more important than law school 'eliteness.'  Socioeconomic factors play a critical role in shaping the pool from which law students are drawn, but little or no discernible role in shaping post-graduate careers.  Since the dominant conventional wisdom says that law school prestige is all important, and since students who 'trade up' in school prestige generally take a hit to their school performance, we think prospective students are getting the wrong message.

Sander is, of course, well known for arguing that black law students are not well served by affirmative action when it places them in law schools where their numerical entering credentials (LSAT and UGPA) are significantly poorer than those of their classmates.   He has also asserted that affirmative action hurts blacks in the context of hiring by large law firms when blacks have lower law school GPAs than their white counterparts.  He maintains that this "handicaps" them "substantially in the the big law 'tournament,' plausibly leading to much higher attrition and lower rates of partnership attainment."  Sander and Yakowitz explain that one purpose of this new study is to respond in part to skepticism that Sander's prior article generated regarding the link between law school grades and career success.

I want to focus here on the new study's insights into class (im)mobility, what Sander and Yakowitz refer to as SES (socioeconmic status).  Here's the bad news:

On the one hand, law students come predominantly from upper-middle- and upper-class backgrounds.  This was true fifty years ago and continues to be true today--to almost exactly the same degree.  Whatever is necessary to shape the credentials and desire necessary to end up in law school, it is distributed  in ways that correlate strongly with most conventional measures of social eliteness.

Elsewhere they expand on this (p. 12 of the draft):

[H]alf of all students at elite schools in the 'After the JD' dataset (who generally began law school in 1996 or 1997) had parents with occupational levels that put them in the top 10% of American households; only ten percent had SES backgrounds that put them in the bottom half of the American distribution.  As in the Warkow-Davis analysis [from the 1960s], students at less elite schools are more socially heterogeneous ...  The similarity across time is striking; if anything, it is perhaps fair to infer that the most elite schools have become more SES-elite over time, while the least elite schools in the spectrum are a bit more socially heterogeneous than their 1961 counterparts.

So, if someone is  just breaking into the professional/managerial class by getting a legal education, chances are very good s/he is doing so at a non-elite school.   This is not terribly surprising because, as Sander and Yakowitz point out, getting into law school as a function of  (a) who is in the pool of college graduates; (b) who wants to go to law school and believes they can finance it; and (c) who has sufficiently high LSAT and UGPA credentials.   Those from lower SES strata--especially if they are white--may not "look good on paper" to more elite schools.   Indeed, those from working class families may not even apply to higher ranked schools.  (Hard as it is for people who are in the know to believe, some prospective law students may not have "gotten the memo" about going to the best law school that will accept you.  Here is my own account of being a law school applicant from a working-class family).  They may choose non-elite law schools if and when those schools are less expensive, both in terms of tuition and in terms of requiring a move.   I wonder, for example, how many law students from working-class backgrounds attend local law schools with night programs.

If Sander and Yakowitz are correct that the power of law school eliteness is over-rated as a career maker, this is (somewhat ironically) especially good news for lower SES folks because they are particularly unlikely to get an elite legal education.

Now for the (other) good news:

[T]he role of social eliteness in shaping lawyer careers after law school  has changed dramatically over the past two generations.  Whereas in the 1960s, social class, proper 'connections' and religion all played influential roles in shaping the types of legal careers available to law graduates, those factors do not seem to bear the same significance today.

Sander and Yakowitz go on to depict in Table 2 (based on After the JD data) how factors reflecting family capital (e.g., "lawyers in the family," "one or both parents are supervisors," "family helped with career strategy," "family was very important for obtaining first job") relate to a lawyer's median income.  I was admittedly shocked to see that among  7 such factors, only "lawyers in the family"was a positive indicator for a higher median salary.  Six other factors correlate with lower median salary, while a final one that might suggest a lack of family capital, "both parents are immigrants," had no apparent impact on salary.

But therein lies a serious limitation of the Sander and Yakowitz study:  Salary is their principal measure of success, with some references also to law firm partnership.   Other lower-paid but prestigious and powerful legal career paths are not acknowledged as markers of success.  Also, I would like to see Sander and Yakowitz attempt to assess the influence of aspects of social capital that are not directly related to a lawyer's family of origin.

Here is something else Sander and Yakowitz appear to overlook.  The salaries of lawyers who earn more money in spite of lack of family capital may do so because earning a higher salary is more important to them than other metrics for or manifestations of success.  Even assuming those from SES disadvantaged backgrounds are proportionately represented among those who earn good grades in law school, that number is really very small.  This group in particular may be more highly compensated than some of their counterparts from more privileged backgrounds because the former place a premium on making money, which gets reflected in their career trajectory.  A higher income may be more important to the lawyer who has transcended class boundaries precisely because s/he grew up with less (if any) financial security.   A lawyer from an upper-middle or upper-class background who has always known financial stability (and may enjoy the benefit of family financial reserves) may feel freer to choose the more rewarding or "alternative" law career path, even if the compensation is not so handsome.

So, this study brings some good news regarding class mobility for those in lower SES strata who have an undergraduate degree, "want to go to law school and believe they can finance it" (an increasingly Herculean task given the skyrocketing cost of higher education)--especially if they get good grades.  The devastating news is how few such people actually wind up in law school.  Sander and Yakowitz's study indicates remarkably little SES upward mobility as reflected in actually getting the SES disadvantaged into law schools and therefore out into the legal profession.  The reasons for that are surely worth further study.

Cross-posted to SALTLaw Blog.

April 12, 2010

Why U.S. News and World Report Should Include a Faculty Diversity Index in its Ranking of Law Schools

Co-authored with Associate Dean and FindLaw columnist Vikram Amar.

About a month ago, we wrote a column for www.FindLaw.com arguing that the influential U.S. News & World Reports law school rankings should consider the diversity of the student body in evaluating the quality of law schools. In essence, we contended that a diverse student body contributes to a better learning environment for students, and therefore should be used in measuring the quality of a law school.

In this column, we contend that the diversity of a law school faculty should also be factored into the U.S. News law school rankings methodology. Faculty diversity contributes measurably to the quality of legal education, as well as to the overall quality of the scholarship produced by a law faculty. It therefore warrants consideration in any legitimate law school ranking system.

The Modern Legal Profession: Dramatically Changed Demographics, Yet There Is Much Progress Still to Be Made

Women and racial minorities are much better represented in law schools today than they were just a generation ago. Specifically, women law students today comprise 47 percent of the total, and minorities account for about 20 percent of all law students.

As a result of the evolving law school demographics, the literal face of the legal profession is changing before our very eyes. Thankfully, long gone are the days when Justice Sandra Day O'Connor, one of the few women in her graduating class at Stanford Law School in 1952, had a difficult time finding a job as an attorney. In 1970, less than 3 percent of all lawyers were women, compared to about 34.5 percent in 2010. Although there certainly are questions about the so-called "glass ceiling" facing women attorneys, it is unquestionably the case that there are many more women in the legal profession today than a generation ago.

The increase has been less dramatic, but nonetheless steady, for most racial minorities. For African Americans, for example, the increase has been from 1.2 percent of all lawyers in 1970 to 4.6 percent in 2010.

As a result of the modern demographics of law student bodies, the iconic Professor Kingsfield of "The Paper Chase" no longer represents the typical law professor in the United States. However, law school faculties have been somewhat slower than the student bodies in increasing their percentages of women and minority faculty members.

Today, women comprise 37 percent and minorities constitute about 16 percent of full-time law teachers, numbers that lag behind the corresponding percentages in law school student bodies.

The underrepresentation of racial minorities on law school faculties is even greater if one looks at the general population. Latinos and African Americans each comprise roughly 13% of the overall population, and Asian Americans about 4%. These three groups together account for about 30 percent of the population, yet all minorities comprise only 16 percent of all law faculty members.

The representation of women is also deeply disappointing. When roughly half the students in law school are women, there is simply no excuse – unless one were to make the untenable argument that women on the whole are generally less qualified as men for the academy – for law schools not to aspire to have faculties that are not composed of roughly half women. This is especially true given that women are well-represented among the student bodies at the two law schools that send the most graduates into legal academia, Harvard (currently at approximately 47 percent) and Yale (49 percent). Although the numbers for racial minorities are smaller, there remains no reason for law schools not to strive to hire the same percentage as can be found in law student bodies.

This data begs the obvious question: Why is the gender and racial diversity of law faculties important to evaluating the quality of law schools? We believe that diverse law school faculties better prepare students to practice law in a world with diverse clients and lawyers, and we believe that diverse law school faculties are also more likely to produce cutting-edge scholarship. Let us explain why.

Law Faculty Members as Role Models

To begin, law students need role models while they are in law school. This is especially the case for women students and students who are members of racial minorities, as these groups historically were excluded from the legal profession. A full representation of women in law school faculties, for example, would confirm in the eyes of women law students that they can be effective lawyers and indeed can in fact succeed in the legal profession. In this vein, the appointments of Supreme Court Justices Sandra Day O'Connor, Ruth Bader Ginsburg, and Sonia Sotomayor sent powerful messages to women lawyers about the possibility for women to rise to the loftiest echelons of the legal profession.

The same holds true for law students who are members of racial minorities. African American, Latino, Asian American, and Native American students often clamor for minority role models on their law school faculties. Minority faculty members teach minority students by example – sending the strong message that these students in fact belong in law school and can be top-flight lawyers. In the same way, the appointment of Justices Thurgood Marshall, Clarence Thomas, and Sonia Sotomayor told African Americans and Latinos, respectively, something important about their ability to ascend to the very top echelons of the legal profession, and of the government.

For many years, law schools have recognized the need for minorities on law school faculties, and have undertaken focused efforts to hire more of them. Law schools aggressively recruit minorities, especially those with elite credentials. The claim that there is a "pool problem" due to a lack of minorities in the legal profession carries some weight but, as demonstrated above, its persuasiveness has markedly lessened over time. And, going forward, there simply will be no "pool problem" at all when it comes to women law school graduates.

The Diversity of Faculty Perspectives Clearly Matters When It Comes to Teaching and Scholarship

There are other benefits, as well, to having a diversity of backgrounds represented in law school classrooms. For example, might it not be possible – some would contend even probable – that a woman teaching legal concepts surrounding rape or abortion might present the law in different ways, with different perspectives on, these subjects than her male counterparts would? Recall, for instance, that Justice Ruth Bader Ginsburg reportedly helped change the minds of several of her male colleagues on the Supreme Court in the recent Fourth Amendment case (Safford Unified School District v. Redding) holding that a strip search of a young female teen at her middle school violated the Fourth Amendment.

Similarly, an African American man might understandably bring an entirely different set of perspectives to the discussion of racial profiling in law enforcement than the average white colleague might offer. Harvard Professor Charles Ogletree, who is African American (or, for that matter, Harvard's Henry Louis Gates, whose racially-charged run-in last summer with the Cambridge, Massachusetts police made the national news), in all likelihood might bring different perspectives to bear on criminal justice than, say, Wayne LaFave, who is white, even though few would question that LaFave is one of the leading criminal procedure scholars of his generation.

So too, Latino and Asian American law professors might bring entirely different perspectives on immigration law and enforcement than even a brilliant white colleague could offer. A Native American faculty member might have an entirely different perspective on Indian Law than other professors could provide. And, rather obviously, an Arab or Muslim professor might bring to bear wholly different perspectives on the various security measures taken by the U.S. government after September 11, 2001 than other faculty members. And these are only the most obvious examples: Importantly, this difference of perspective is not limited to particular subject matters that are directly related to race, ethnicity or gender, but also might be expected to apply across the board to various legal topics as well.

Nor is the classroom the only sphere where faculty diversity matters. Differences of perspective can affect scholarship just as they can affect teaching. Even if one does not believe that there is a "voice of color," it is an unquestionable truth that, in the aggregate, members of different minority groups will bring different experiences and perspectives to bear on the analysis of the law and legal doctrine. It would be startling, moreover, if one did not see these differences influence their scholarship to some degree.

Of course, we do not mean to say that all minorities or all women will add different perspectives to the mix. Rather, what we mean to say is that a diversity of faculty with various backgrounds and experiences can help enrich teaching and scholarship. And in other respects, our legal system embodies the belief that a diverse set of perspectives leads to improved decisionmaking. For instance, Supreme Courts in the federal and state systems are designed to have many (ranging from five to nine) Justices, rather than a single Justice, deciding cases. Similarly, we strive for the juries that decide civil and criminal cases to be comprised of many persons (usually twelve) pulled from a cross-section of the community. There also is good reason to consider the diversity of faculties in evaluating the quality of law schools. There, too, a multiplicity of perspectives will predictably improve the quality of debate and deliberation on vital issues.

Faculty Diversity is an Index of Law School Quality, Both Locally and Nationally

In our previous column for this site, we argued that, because the U.S. News rankings seek to employ a methodology that accurately evaluates the overall quality of law schools, it makes perfect sense to evaluate the diversity of the student bodies for all U.S. law schools and include that evaluation in the rankings. There can be no convincing justification for the special treatment of law schools in states that may not enjoy the same demographic diversity as, say, California and Florida. (Schools in Maine and Kansas were the examples used by U.S. News's law school rankings guru, Robert Morse). The diversity of faculty is as important to the quality of a legal education and of legal scholarship in Maine as it is in California.

As with student diversity, the concern that law schools in less diverse locales should be subject to different criteria carries no weight in evaluating the quality of the schools' faculty. Indeed, the market for law teachers is unquestionably national. Serious faculty candidates generally are willing to relocate to wherever they land the best job. Consequently, there is no reason why a law school in Maine or Kansas has any excuse for failing to have a gender- or racially-diverse faculty.

Currently, there are not as many women and racial minorities as might be desirable on many law faculties – and that fact is not lost on law schools. As a result, the competition for those much-coveted potential faculty members is often intense. Yet the intensity of that competition should not be an excuse for the lack of diversity in law school faculties. Importantly, there are law schools – and not only those that rank among the most top tier of schools – that are doing something right in recruiting and retaining diverse faculties. Those schools should be rewarded for their effective competition and for improving the quality of the education their schools provide.

This brings us to the question of how a law school might work to secure and maintain a diverse faculty. This is a topic that is well beyond the scope of this column. But, as with most things, it takes leadership, commitment, time, and effort. Law school Deans must be willing to instill the values of diversity and excellence in the hiring of faculty. Faculty appointments committees that include women and minorities are important, in order to increase the likelihood of diverse search outcomes. Appointments committees must, within legal limitations, be encouraged to bring a diverse group of candidates to campus for the full faculty to consider.

The Need for a Critical Mass of Minority Professors, If Legal Education Is to Improve

A faculty diversity index that values significant, as opposed to minimal, diversity is called for as a measure of faculty diversity. That is because a "critical mass" of minority faculty members – not just one or two – on a law school faculty is good for both the teaching and scholarly missions of the law school.

A critical mass of minority and female faculty will ensure that students are exposed to a diversity of law professors possessing different experiences and perspectives. This diversity will, in turn, provide students with a richer environment – one that more likely mirrors the diversity of lawyers and clients that the students will encounter as lawyers. A token minority professor teaching a class or two clearly will not have nearly as positive an impact on a student's educational experience as having a wide variety of minority and women teachers. Indeed, seeing the diversity of opinion within members of a minority group, and among women, teaches students much about diversity in and of itself.

Moreover, creating a critical mass will help to ensure that minority faculty members do not feel as if they are mere window dressing, or that they are being looked to by students and colleagues as being required to offer the "minority perspective." A lonely (minority) soul is more likely to leave a given law school for greener pastures elsewhere. Thus, the retention of minority faculty members, too, will depend in part on the ability of a law school to maintain a "critical mass" of diversity on its faculty.

Who Counts? Why the Representation of Asian American Faculty Should Matter, Too

In measuring the racial diversity of law faculties, it seems clear that we should consider Latinos, African Americans, and Native Americans. Some might question whether Asian Americans, who are so richly represented on many college and university campus, should be counted. We believe that they should.

As with student diversity, we are not making a remedial argument for faculty diversity here – that is, we are not calling for diversity to remedy historic wrongs, but rather to enhance today's teaching and scholarship and provide a superior experience for today's law students. Importantly, as with student body diversity, the benefits of the diversity of a law faculty accrue with or without the underrepresentation of a particular group, such as Asian Americans. In any event, Asian Americans historically have been underrepresented in law, often because of societal pressures that funneled them into math and the sciences. Some have also claimed that law faculties have relied on stereotypes of the "passive" Asian to argue that Asian American faculty candidates whose scholarship was strong nevertheless would not do well in the classroom, and thus to decline to hire them.

As this discussion suggests, the quality of law schools rests in part on the diversity of their law faculties as well as of their student bodies. The U.S. News rankings therefore should expressly consider both faculty and student diversity, rewarding the schools that encourage either or, ideally, both.

Finally, while we have focused in this column on gender and racial minorities, we acknowledge that other kinds of diversity among the members of law faculties may also make a positive difference in law teaching and scholarship. For example, socioeconomic diversity, ideological diversity, LGBT diversity, religious diversity, etc., among faculties also may be important. We are open to ideas on how to ensure these and other kinds of faculty diversity that might improve legal education and scholarship, and open to arguments that these kinds of diversity, too, should be taken account of by the U.S. News rankings.

Cross-posted at FindLaw.