PAINTING BEYOND THE NUMBERS: THE ART OF PROVIDING INCLUSIVE LAW SCHOOL ADMISSION TO ENSURE FULL REPRESENTATION IN THE PROFESSION PAULA LUSTBADER* I. INTRODUCTION African-American1 and Mexican-American enrollment in law schools has declined sharply since 1993.2 Disconcertingly, this decline occurred during a time when both groups applied at a relatively constant rate, saw their numerical entry indicators increase, and saw the number of seats in law schools grow by over 3,000.3 This decrease in enrollment occurred because law schools place an unwarranted premium on numerical criteria4
Copyright © 2012, Paula Lustbader.
* Professor of Law and Director, Academic Resource Center, Seattle University School of Law. J.D., Seattle University School of Law; B.S., Southern Oregon State University. It took a village to write this article. I thank my academic colleagues: Bryan Adamson, Angela Baker, Derrick Bell, David Boerner, Carol Cochran, Camille DeJorna, Richard Delgado, Cheryl Hanna, Kevin Hopkins, W.H. Joe Knight, John B. Mitchell, Sara Rankin, Dennis Shields, Brendon Taga, Gerald Torres, Francisco Valdes, Stephanie Wildman, and Laurie Zimet. I thank my incredible research librarian, Kelly Kunsch; my secretary, Nora Santos; and my research assistants, Nilda Brooklyn, Chris Graving, Alexandra Hohman, Lisa Jacobson, Holly Mack-Kretzler, Rebecca Rook, Jacob Stender, and Paul Westfall. I thank my students and alumni who provide me with the “right work.” Finally, I thank my children, Kathryn and Joseph Brand, who graciously shared their mom.
1Because articles that address race and ethnicity issues use varying terminology, this article will use the term used by each original source.
2See A Disturbing Trend in Law School Diversity, SOC’Y AM. L. TCHRS., http:// blogs.law.columbia.edu/salt/ (last visited Sept. 30, 2011). The representation of both groups has declined since 1993. Id. The proportion of African-Americans in the 2008 class decreased 7.5% as compared with the 1993 class. Id. The proportion of Mexican-Americans in the 2008 class decreased 11.7% as compared with the proportion entering law school fifteen years ago. Id.
3Id. Including provisionally accredited schools, between 1992 and 2008, the number of law schools increased from 176 to 200. Id.
4See Michael A. Olivas, Higher Education Admission and the Search for One Important Thing, 21 U. ARK. LITTLE ROCK L. REV. 993, 995 (1999) (“[A]dmission committees overwhelmingly rely upon previous cumulative GPAs and standardized test
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to predict success in law school and increase minimum levels for qualification to improve school rankings.5
Lawyers have a duty to ensure fair and just legal processes and to protect the rights of all people, regardless of race, religion, nationality, or gender.6 By the same token, law schools, the initial gatekeepers of those entering the profession7 and the educators of future lawyers, have a similar
scores to make their admissions decisions.”). These numerical criteria include Undergraduate Grade Point Averages (UGPA) and Law School Admission Test (LSAT) scores. Id. at 994.
5Id. at 996 (“Admissions committees use UGPAs and standardized test scores in order to predict how students will do in the first-year of study.”). Most law schools use a formula to compute an admission index; they weigh the LSAT between 55%–65% in the formula. Id. at 1003 n.32. “Despite any shortcomings in testing the abilities of a variety of test-takers and types of learners, the LSAT weighs heavily in the law school admissions process. LSAT scores are a large component of law school rankings; thus, they have a great impact on law school admissions decisions.” Jennifer Jolly-Ryan, The Fable of the Timed and Flagged LSAT: Do Law School Admissions Committees Want the Tortoise or the Hare?, 38 CUMB. L. REV. 33, 35–36, (2007). See also Phoebe A. Haddon & Deborah W. Post, Misuse and Abuse of the LSAT: Making the Case for Alternative Evaluative Efforts and a Redefinition of Merit, 80 ST. JOHN’S L. REV. 41, 67 (2006) (noting that some law schools have raised the indicators used by U.S. News & World Report, such as median LSAT score, to increase their rankings).
6See generally Preamble: A Lawyer’s Responsibilities, AM. BAR ASS’N, http://www. americanbar.org/groups/professional_responsibility/publications/model_rules_of_professio nal_conduct/model_rules_of_professional_conduct_preamble_scope.html (last visited Nov. 10, 2011). Some argue that discriminatory hiring practices undermine the administration of justice and may violate the ABA Model Rules of Professional Conduct and the Model Code of Professional Responsibility. See, e.g., Akshat Tewary, Legal Ethics as a Means to Address the Problem of Elite Law Firm Non-Diversity, 12 ASIAN L.J. 1, 29–31 (2005).
7See NAT’L CONFERENCE OF BAR EXAM’RS & AM. BAR ASS’N SECTION OF LEGAL EDUC.
& ADMISSIONS TO THE BAR, COMPREHENSIVE GUIDE TO BAR ADMISSION REQUIREMENTS
2011 (Erica Moeser & Claire Huismann eds., 2011), available at http://www.ncbex.org/ assets/media_files/Comp-Guide/2011CompGuide.pdf. Eighteen states require a J.D. or
L.L.B. to take the bar exam. Id. at 8–9. Moreover, of the 74,259 people taking a bar exam nationwide in 2006, only forty-four of them did “law office study,” meaning they did not matriculate from a law school. See Jerry Harkavy, Self-Taught Lawyers Vanish as More States Require Law School, BOSTON GLOBE, Jan. 18, 2008, http://www.boston.com/news/
education/higher/articles/2008/01/18/self_taught_lawyers_vanish_as_more_states_require_l aw_school/. 2012] ENSURING INCLUSIVE LAW SCHOOL ADMISSION 73
duty to ensure that they employ inclusive, fair, and just admission practices.8 Unfortunately, the majority of law schools are failing to meet that charge.9
Law schools have abandoned “access admission” practices10 and view their heavy reliance on numerical indicators as necessary to increase their rankings in the U.S. News & World Report.11 In addition, law schools may misinterpret the compliance requirements for American Bar Association (ABA) Accreditation.12 Citing concerns about the current anti-race
8See ASS’N OF AM. LAW SCH., AALS HANDBOOK: MEMBERSHIP REQUIREMENTS §§ 6-1– 6-3, available at http://www.aals.org/about_handbook_requirements.php (last updated Jan. 2008). This duty is more than a moral imperative; it is required by the AALS. Id. The AALS requires that member schools have faculty “who are devoted to fostering justice and public service in the legal community.” Id. at § 6-1(b)(i). In addition, it expects schools to select “students based upon intellectual ability and personal potential for success in the study and practice of law, through a fair and non-discriminatory process designed to produce a diverse student body and a broadly representative legal profession.” Id. at § 6-1(b)(v). Finally, it requires member schools to engage in non-discriminatory practices. Id. at § 6-3. The same can be said of law firm hiring practices. See Alex M. Johnson, Jr., The Underrepresentation of Minorities in the Legal Profession: A Critical Race Theorist’s Perspective, 95 MICH. L. REV. 1005, 1011 (1997). As stewards of justice, the legal profession, more than any other profession, must employ just practices. See id.
9Thomas Adcock, Law School Deans, Profs Ponder Reasons for Decline in Minority Enrollment, N.Y. L.J., Nov. 20, 2008, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=
1202426164067. The current admissions practice is “‘an outrageous form of institutional discrimination’ . . . ‘If this were in the employment area, you’d see disparate impact lawsuits.’” Id.
10See Haddon & Post, supra note 5, at 55, 96–97; Paula Lustbader, Hanging Ten: Law School Academic Support Programs Coming of Age in the Wake of the Carnegie Report, the Minimal Bar Passage Requirements for ABA Accreditation Rules, and the U.S. News and World Report Rankings 21 (Mar. 3, 2011) (unpublished manuscript) (on file with author). “Access admission” practices are those that enable a law school to consider criteria beyond numerical indicia to increase enrollment of the underrepresented. Lustbader, supra at 22.
11Haddon & Post, supra note 5, at 98. U.S. News & World Report ranks law schools based upon the twenty-fifth to seventy-fifth percentile of LSAT scores of entering first year law students. U.S. NEWS & WORLD REPORT, BEST GRADUATE SCHOOLS: SCHOOLS OF LAW
69–71 (2012 ed. 2012).
12Actually, the ABA may have created an unintended conflict. Standard 501-2 requires that admission practices be consistent with standards 211 and 212, which address diversity,
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conscious legal climate, many law schools also believe that they cannot provide access admission—even with the proliferation of Law School Academic Support Programs (ASPs) and professionals with specialized expertise to ensure students’ success.13
By relying primarily on numerical criteria14 and adopting less comprehensive admission practices, law schools disregard the fact that
and interpretation of Standard 503 requires law schools to “use the test results in a manner that is consistent with the current guidelines regarding proper use of the test results provided by the agency that developed the test.” AM. BAR ASS’N SECTION OF LEGAL EDUC.
& ADMISSIONS TO THE BAR, STANDARDS AND RULES OF PROCEDURE FOR APPROVAL OF LAW
SCHOOLS 37–38 (2011–2012). These standards suggest that law schools that over-rely on the numerical indicators could actually be in noncompliance. Standard 501(b), however, requires that law schools “not admit applicants who do not appear capable of satisfactorily completing its educational program and being admitted to the bar.” Id. at 37. When combined with Standard 301–6, which requires a minimum bar passage rate, the standards suggest that law schools ought to rely more on numerical...