Sonia Sotomayor may be the first Hispanic female nominated for the Supreme Court, but she's unusual in another way: She's a minority who made it past the law school gate. The American Bar Association's Commission on Racial and Ethnic Diversity reported that in 2000 (the last year statistics were compiled based on U.S. Census data), only 9.7 percent of attorneys in the U.S. were minorities; that breakdown showed 4 percent of attorneys were African American, 3.3 percent Hispanic and the remainder of the minority contingent Asian American. These rates were starkly lower than for other professions. For example, census data showed that in 2000, 21 percent of accountants, 24 percent of physicians and 18 percent of university professors were minorities.
The ABA is a force in legal circles, and it has conducted numerous diversity conferences, formed multiple diversity committees and tried repeatedly to persuade large law firms to increase diversity hiring. Still, the percentage of minority attorneys remains low, having either risen very slightly or declined over the last 10 years, depending on which statistics you look at. According to the ABA, 7,780 minorities were awarded law degrees in 2001-2002, representing 20 percent of the graduating class, and that number rose to 9,820, or 22 percent of law degree recipients, in 2006-2007. But a January 2008 report released by Columbia Law School and the Society of American Law Teachers showed that first-year minority enrollment in law school declined by 8.6 percent from 1992 to 2005.
By most all accounts, the major impediment keeping minorities out of law schools and, therefore, underrepresented in the legal profession is the Law School Admission Test.
Many minority students attend overcrowded urban schools, can't afford LSAT-preparation classes or don't speak English as their primary language. For these and other reasons — including what social psychology professor Claude Steele calls "stereotype threat," a set of mental processes that tend to undermine, in particular, black Americans' performance on standardized tests —minority students don't score as well on the LSAT, on average, as their white peers. (Scores on the LSAT range from 180 down to 120; according to Leonard Baynes, a law professor at St. John's University, the most recent available statistics show white students averaging 150, Latinos 146 and African Americans 142 on the test.) And LSAT scores often are the primary basis on which law schools decide who does and doesn't get in.
"Law schools put more emphasis on test scores than any other professional school," said Bob Schaeffer, public education director of The National Center for Fair and Open Testing, a frequent critic of the LSAT and other standardized testing.
Among the factors that have put the LSAT at the center of law school admissions is the increasing influence of the U.S. News & World Report and other law school rankings that give prominence to test scores. That focus on the LSAT pressures law schools to recruit candidates with high scores — or, if they don't, to see their rankings fall and their reputations tarnish, explains Marjorie M. Shultz, a professor at the University of California, Berkeley, School of Law for 32 years until she retired in 2008. "Schools have become really focused on raising their candidate's LSAT scores, and that has only served to increase LSAT's dominance," she added.
The LSAT measures a particular kind of analytic and logical reasoning and reading comprehension that, in theory, helps students to do well in first-year law school. But the questions have nothing to do with law. One practice LSAT question offered online reads this way:
When the goalie has been chosen, the Smalltown Bluebirds hockey team has a starting lineup that is selected from two groups:
First Group: John, Dexter, Bart, Erwin
Second Group: Leanne, Roger, George, Marlene, Patricia
When deciding on the players in the lineup, the coach considers the following requirements:
- Two players are always chosen from the first group, while three are chosen from the second group.
- George will only start if Bart also starts.
- Dexter and Bart will not start together.
- If George starts, Marlene won't start.
- The 4 fastest players are: John, Bart, George and Patricia
- Three of the 4 fastest players will always be chosen.
If George is in the starting lineup, who must also start?
A. Marlene or John
B. Dexter or Leanne
C. Dexter or John
D. John or Patricia
E. Marlene or Roger
Obviously, the range of skills required to thrive as a practicing attorney involves far more than team-picking logic. Law schools, Shultz says, have been selecting candidates who would make great law professors, but not necessarily gifted attorneys. To put it another way, Shultz says, most law schools are "lemmings. The ABA requires them to use the LSAT, and they follow along."
In an attempt to provide an alternative to the LSAT, Shultz and Sheldon Zedeck, a professor of organizational psychology at UC Berkeley whose specialty is statistics, devised a 26-tool test that was based on surveys of 1,200 attorneys. The alternative test measures the actual skills that those attorneys say a lawyer needs to succeed, including judgment, creativity, advocacy, negotiation, integrity, diligence and networking in business development. Their report, issued in September 2008, "Identification, Development, and Validation of Predictors for Successful Lawyering," lays out a plan to determine whether students will turn into successful attorneys. According to the report, unlike with the LSAT, "race performance did not substantially differ on the new predictors." Their report concluded that merit in law school has gotten "too narrow and static and is hampering legal education's goal of producing diverse, talented law graduates." Wendy Margolis, a spokeswoman for the Law School Admission Council, said it is still mulling over whether to use the 26-tool test that Schultz and Zedeck devised; Schultz said feedback from LSAC was initially negative.
But not all law schools follow the herd in regard to admissions, and not all of them require LSAT scores. Larry Velvel established the Massachusetts School of Law in Andover, Mass., in 1998 to attract diverse students and break the LSAT stranglehold. The LSAT, he says, "eliminates from law school and the legal profession many people from all races and religions who are capable of doing well in law school and the law practice. LSATs measure little other than how well you do on a timed, multiple-choice test."
In lieu of the LSAT, the Massachusetts School of Law performs an intensive, one-on-one analysis of each candidate's background based on interviews, an essay about a real-life situation faced by an attorney, the candidate's grade point average in college and his or her life experience. Velvel estimated that 20 percent of students are African Americans and 15 percent Latino, but this iconoclastic school does not ask its students their racial or ethnic identity, so no firm statistics are kept. He said the law school's rates of passing the bar exam on the first attempt vary between 55 to 75 percent, but about 85 percent of its students do pass the bar eventually.
Those results indicate that "people are capable of becoming good law students and lawyers who didn't get super grades in college or do well on the LSATs," Velvel says. The school attracts minority students not just with its admissions policy but by keeping its tuition at $14,500 a year, compared to $30,000 to $40,000 at most law schools. Though the ABA hasn't accredited the school, it has passed muster with the New England Association of Schools and Colleges. That means that students can become lawyers in Massachusetts, but graduating from a non-ABA accredited law school might limit the ability to be licensed in other states and, hence, mobility.
The University of the District of Columbia David A. Clarke School of Law, which has a mission of attracting students of underrepresented minorities, considers the LSAT one factor of many in admissions, said Ann Richardson, its academic dean. "The LSAT is a numerical predictor of success in first-year law school, but that's all it does," she said. Her law school, she says, looks for students with a "social justice passion who have overcome obstacles along the way or gone to work after undergraduate school." The 250 students of the school's 2008 class had an average age of 31; 30 percent were African American, 10 percent were Latino and 92 percent of all students passed the bar on the first try. The school is ABA-certified.
As a practical matter, it's unlikely most law schools or the ABA will stop using the LSAT any time soon. To limit the test's negative effects on law school diversity, Susan Sturm, a professor at Columbia Law School, recommends that law schools use the test only as a threshold for entry, giving more weight in the admissions process to other criteria, such as experience outside of the class, leadership skills, recommendations and personal essays, all of which would lead to admitting students who would become more well-rounded attorneys. Also, she says, law schools need to better connect admissions to objectives. For example, a law school that wants to create public-interest attorneys should have a different set of entrance criteria than those schools that produce mostly corporate lawyers.
Given the likelihood that the LSAT will be used in some way, helping bright minority undergraduates pursue law school inevitably involves helping them improve their performance on the test. In 2005, Baynes, the St. John's University law professor, launched The Ronald H. Brown Summer Law School Prep Program for College Students. The program attracts minority sophomores who are interested in the law and attend St. John's University or The City University of New York's John Jay College of Criminal Justice, Medgar Evers College and York College. The students must have maintained at least a 3.0 GPA.
When the program started, it specialized in summer workshops that provided an overview of law and law schools. But many students refused to take the LSAT, which made Baynes realize it was "LSAT phobia" that was holding them back. In 2007, he added a second year to the summer program; that second summer session offers nine weeks of training that help students take the test, write the kinds of personal statements often used in law school admissions and overcome their "social and test anxiety" barriers, Baynes says.
The intensive training has been paying off. In 2008, 21 of 23 students in the summer program gained admittance into law schools. LSAT scores for minorities in the program rose by 10 points compared to their initial diagnostic on the test. In the LSAT's tight scoring range, a 10-point rise can make all the difference.
Inventive study programs are no cure for the dearth of minorities in the legal field. James O'Neal, a Harvard Law School graduate and executive director of Legal Outreach, a 25-year-old nonprofit that involves 210 undergraduates in a lengthy writing debate program aimed toward law school, admits that programs like his, though inspirational, reach only a limited number of students.
To increase the number of minority law school students and lawyers, he says, the educational achievement gap between Latino and black students, on the one hand, and white and Asian students, on the other, has to be closed. "One doesn't do well just by taking a course; it's dependent on lifelong learning going back to elementary, middle and high school," O'Neal says. The ultimate answer to the minority-lawyer problem, he says, entails strengthening school systems in New York, Chicago, Los Angeles, Houston and other cities with large minority populations.
The problem that most law schools face in attracting minority candidates is "the pool of candidates is too shallow," says Ruthe Ashley, the president and CEO of CaliforniaALL (an acronym for aspire, learn and lead), a Sacramento, Calif.-based nonprofit dedicated to broadening the state's work force. "Everyone's fighting for the same minority attorneys that get into law schools." CaliforniaALL's answer to solving the problem is long term: Expand the pipeline of minorities who have the educational background for law school through the teaching of critical thinking in elementary, middle and high schools. CaliforniaALL tries to fill that pipeline through workshops that aim to improve students' reading, writing and critical-thinking skills. The program also brings attorneys and judges into school as speakers and mentors, and offers a Saturday Academy of Law that explicitly promotes the legal profession.
"We have to start building for the future now," Ashley says "The education system isn't producing students we need. We're not getting enough of them into college or law school."
Erwin Chemerinsky, dean of the new UC Irvine School of Law, which launches this fall, would seem to have a golden opportunity to create a diverse law school. He describes a goal of creating a top 20-caliber law school that attracts highly qualified minority talent. Somewhat paradoxically, he will have to jump a legal hurdle to reach that goal. In 1996, California voters approved a measure, Proposition 209, that among other things prevents the use of race as a basis for state university admissions. In hopes of improving the fairness of admissions, Chemerinsky says, UC Irvine is employing multiple admissions criteria, including "GPA, LSAT, a personal statement, letters of recommendation and life experience." The school's inaugural class has 65 students; 37 percent of them are students of color, Chemerinsky says, but he offered no breakdown of races, raising questions as to how many of the minorities in the inaugural class are Latinos and African Americans.
Will attending law school continue to be based on candidates attaining an LSAT score, like so many "rabbit" golfers trying to make the cut in a qualifying tournament? Why can't Ivy League and other elite law schools set the pace in creating alternative admissions models that increase minority participation? Why doesn't the ABA devise a concrete plan to attract minorities to the profession — and then fund it?
The answers to these questions depend, in the end, on political will. That's to say, does the legal profession as a whole want to make — and pay for — the changes needed to improve diversity in the field? Eduardo Rodriguez, co-chair of the ABA Diversity Summit held in June in National Harbor, Md., said it dealt mostly with the need to reach minorities at earlier ages. "For the first time in a long time, we had active participation of the ABA leadership in making a commitment to keep diversity on the forefront and consider our recommendations," Rodriguez says. He added that the summit came up with specific ideas about how to de-emphasize U.S. News & World Report's law school rankings and to help minorities deal with the increasing cost of law school.
Fairness — and particularly the perception of fairness — clearly requires that the face of the legal profession resemble, at least roughly, the face of modern America. "The reason we need to diversify is for justice's sake," says CaliforniaALL CEO Ashley. "You can't walk into a courtroom as a minority defendant and have a white male judge, white jury, white prosecution and white public defender, and think that justice has been served."
Whether courtrooms and law firms become racial melting pots will depend, of course, on many actions — or failures to act — by many people and organizations. More than anything else, though, improved diversity will come only when the ABA and the country's major law schools agree that one standardized test cannot predict who will become a good attorney and take concrete, coordinated action to minimize reliance on the LSAT.
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