TABLE OF CONTENTS INTRODUCTION I. THE SIZE OF THE PIPELINE II. THE FIRST AND MAJOR LEAK IN THE PIPELINE: ADMISSIONS A. Leakage at Test-Taking Stage (Those Who Take the LSAT and Do Not Apply to a Law School) B. Leakage at the Application Stage (Those Who Apply to Law School but Receive No Positive Admission Decision) C. The Impact of Affirmative Action on Applicant Misapplication III. THE BAR EXAM: A SERIOUS KINK IN THE PIPELINE A. Misapplication on the Bar Examination B. A National Bar Exam? No, a Logical Alternative C. Raising the Bar--Strengthening the Obstruction in the Pipeline for No Good Reason CONCLUSION INTRODUCTION
Putting aside momentarily the debate over the appropriate use of affirmative action in law school admissions, (1) almost all would agree that increasing the number of diverse or underrepresented individuals in law schools, (2) and subsequently the legal profession, is a laudable goal and one that will have a salutary effect on the legal profession and, ultimately, society. The debate, to date, has centered on whether affirmative action can lawfully be used to achieve that increase and, if so, whether the use of affirmative action is beneficial for its recipients. (3) Further, both opponents and supporters of affirmative action agree that the elimination of the need for the continuing use of affirmative action is also a laudable goal and one that should be embraced societally.
In Grutter v. Bollinger, the Supreme Court almost wistfully concluded with dicta that affirmative action should not be necessary twenty-five years after the opinion. (4) I have written an article in favor of the continued use of affirmative action (actually going so far as to suggest that even quotas should be lawful), (5) yet I also believe that an optimal state of affairs in legal education is a world in which affirmative action (including, of course, quotas) is not used because there is nevertheless a proportionate representation of currently underrepresented groups in our law schools and, subsequently, in the legal profession. In other words, in an optimal society there would be no need for affirmative action and all would support the elimination of affirmative action in admissions because blacks, Hispanics, and Native Americans (the underrepresented minority groups) would be admitted to law schools at least in proportion to their percentage of the U.S. population without its use.
Quite the contrary, we do not live in an optimal "aracial" world, but in a society still suffering from the effects of a legacy of legalized and systemic racism which was once the norm in American society. Not only does affirmative action continue to be used to increase the number of underrepresented groups (minorities) in our law schools, these groups remain underrepresented in law schools and in the legal profession. I contend, however, that the debate over the efficacy of affirmative action is somewhat misplaced. Instead, I posit that the underrepresentation of minority lawyers is created by impediments in the educational and licensing pipelines that produces lawyers. Indeed, I demonstrate that there are other significant factors limiting the enrollment of these underrepresented individuals in law schools. Furthermore, I address what steps can and should be taken to increase the enrollment of these very valuable students--without using affirmative action--so that they are no longer underrepresented when measured by their representation in larger society. (6)
I do so from the perspective of one who has been intimately involved in the admission process and the operation and effect of the LSAT on that process for the last quarter of a century. From 1989-2004 I was a volunteer for the Law School Admission Council (LSAC), the non-profit entity that produces the Law School Aptitude Test ("LSAT") and that is "owned" by the American Bar Association (ABA) accredited law schools. During that fifteen-year span, I rose from a member of the Minority Affairs Committee (MAC) (a LSAC standing committee devoted to increasing the number of minority students in law schools) to Chair of MAC and then Chair of the Test, Development and Research (TD&R) Committee (TD&R is the standing committee within the LSAC charged with monitoring and assessing the efficacy of the LSAT), ultimately becoming Chair of the Board of Trustees of the LSAC, the highest position a volunteer can attain within the LSAC administrative structure.
As I have written previously, "[d]uring my odyssey with the LSAC I learned much about the LSAT test, its use in Admissions, and its impact on matriculants to Law School." (7) In addition, for several years I served as a member of the faculty-run Admissions Committee while on the faculty of the University of Virginia School of Law. While Dean at the University of Minnesota Law School, I was heavily involved in that school's efforts to recruit a more diverse student body. Suffice it to say, I also learned a lot about admissions (especially its impact on the rankings produced by U.S. News & World Report) during my tenure as Dean of the University of Minnesota School of Law. (8)
More precisely, many in the field of legal education, and especially those intimately involved in the admission process, have noticed that although the number of minorities applying to law schools is increasing slightly, the number of certain minority students (that is, African-Americans) admitted to and matriculating at our law schools is decreasing both as an absolute number and as a percentage of those students actually attending law school while the number of Asian-Americans is increasing. (9) This allows law schools to continue to claim that they are diverse when they are actually becoming less diverse, biracial (white and Asian-American) institutions. This has led to a renewed emphasis on the factors that have caused this decline in law school matriculants (among underrepresented minorities, especially African-Americans) and leads directly to this Article's primary question: What is limiting the number of minority matriculants, particularly African-Americans, in light of the increased number of applicants?
Moreover, because fewer members of these underrepresented groups are matriculating at law schools, fewer members of these underrepresented minority groups are graduating from law school. As a result, even fewer members of these underrepresented groups are passing any bar examination and achieving the goal of becoming a licensed attorney. Although many point to the LSAT as a serious impediment to the admission of underrepresented minorities to the legal profession, I conclude that the LSAT is not the inhibiting factor it is alleged to be. Further, I will demonstrate that once members of these underrepresented groups sit for the LSAT, decisions made after receiving their LSAT score significantly impact whether that individual will matriculate at a law school and begin their sojourn to become a member of the legal profession. In other words, even though members of underrepresented minority groups do not score as well as whites on the LSAT, (10) that score scale differential is not dispositive with respect to ultimate matriculation at a law school. I demonstrate that the choices made by the applicant about where to apply to law school, coupled with the misuse of the LSAT by the end users (the law schools), determine whether matriculation will subsequently occur and at which school. Once the decision is made to matriculate, I document that members of these underrepresented minority groups graduate at the same rate as their white peers.
I make this point now to emphasize how important the application decision is for underrepresented students. It is that decision--which law school to apply to--not matriculation or performance in law school, that realistically determines how many law graduates will take the bar examination from these underrepresented groups, as whites and African-Americans accepted to any law school matriculate and graduate proportionately. And if potential law school students apply only to law schools that they have literally zero chance of being admitted to, those potential law students, as a result of their misapplication, will not be admitted to any law school. (11) The bar exam, however, is a different story, serving to severely and disproportionately limit the number of underrepresented minorities who will obtain a license to practice law given the differential cut or passing scores used by fifty-one licensing jurisdictions. (12) Given the various cut scores that exist in the fifty-one jurisdictions, an applicant with a passing score for one jurisdiction may fail the bar in the jurisdiction in which he or she sat for the exam given the higher cut or passing score. That potential attorney represents leakage in the pipeline producing lawyers of color by ultimately reducing the number of attorneys of color eligible to practice.
By identifying those bottlenecks in the pipeline that are constricting the flow of underrepresented minority matriculants to the legal profession at law school and beyond, I hope to educate those who control or can influence these bottlenecks to take whatever steps are necessary to reduce or eliminate the impact of these bottlenecks on the admission and matriculation of underrepresented minority students to law schools in the United States. These steps may be as simple as educating and encouraging pre-law advisors and counselors to correctly and appropriately advise applicants to apply to the right law schools. The right law schools are those law schools that the applicant has a realistic chance of gaining admission to given their objective qualifications--LSAT score and undergraduate grade point average (UGPA). If minority applicants apply to the right law school, this will minimize the "leakage" in the application process that results from misapplication.
Conversely, some curative steps may be nearly...