For law schools whose enrollees’ median LSAT percentile exceeded 90, here are (1) admission statistics and (2) statistics on the number of Asian- American students attending.
7/6/09: Selling Merit Down the River
By Russell K. Nieli
Excerpted from pages 21 and 22
The River Pilots’ concern here may be misplaced, however, for even if black and Latino students do earn substantially lower grades than whites and Asians, they may have professional school as it is for a white or Asian. but still significantly behind the whites and Asians.
7/8/08 MindingtheCampus.com: “The ABA’s Diversity Agenda,”
By Gail Heriot (Professor of Law at the University of San Diego )
The ABA is very big on diversity. To satisfy its standards, nearly all law schools must seriously relax their admissions standards for minority students. But how many of so-called beneficiaries of affirmative action are graduating and passing the bar? And how many are winding up with nothing to show for their trouble but students loans? The evidence is not encouraging.
For years, the ABA has used its clout to demand that law schools toe the affirmative action line. In the 1990s, fully 31% of law schools admitted to political scientists Susan Welch and John Gruhl that they “felt pressure” “to take race into account in making admissions decisions” from “accreditation agencies.”
Law schools must take pressure from the ABA seriously. As the U.S. Department of Education’s designated law school accreditation agency, the ABA , through its Council of the Section of Legal Education and Admissions to the Bar, has the power to decide whether a law school will be eligible for federal funding. Unless the ABA approves, for example, a law school’s students will be ineligible for student loans. And that is just the beginning. Most states do not allow the graduates of non-ABA-accredited law schools even to sit for the bar examination. A law school that is not in the good graces of the ABA is thus not a law school at all.
While nowhere in the ABA’s diversity standards does it specifically demand that law schools maintain relaxed admissions standards for minority applicants, it has already publicly admitted that diversity in law schools can only be maintained through such double standards. Indeed, that was the thrust of the ABA ‘s amicus curiae brief in Grutter v. Bollinger, the case that (unsuccessfully) challenged the University of Michigan Law School’s preferential treatment for minorities in admissions.
Specifically, the ABA told the Supreme Court that “[r]ace-[c]onscious [a]dmissions [a]re [e]ssential to [i]ncreasing [m]inority [r]epresentation in the [l]egal [s]ystem.” “[I]t is unquestionable,” the ABA wrote, “that the improvement in minority participation in our law schools, and thus in our legal system, has been achieved largely by the use of race-conscious admissions policies such as those under attack here.” According to the ABA, prohibiting racially preferential admissions policies nationwide, as California and Washington have done statewide, would cause “a precipitous decline in minority participation in the institutions of our legal system” and “undo much of what has been accomplished in the last several decades.”
This was not a minor issue in that litigation. It is scarcely conceivable that the Supreme Court would have allowed the University of Michigan to engage in preferential treatment for minority applicants if it had found such treatment to be simply one among many plausible methods to enroll a racially-diverse class. Nearly everyone agreed that a racially-diverse class could not be enrolled at the University of Michigan (or any law school given the fierce competition for minority law students) without either preferential treatment for minority students or a drastic across-the-board lowering of the law school’s entry requirements.
Not long after the Supreme Court decided Grutter v. Bollinger, the ABA responded to the apparent green light the race-based admission by tightening its diversity standards (a subject for another essay) and by increasing the pressure on law schools that it perceived to be not diverse enough.
The best example of this is George Mason University Law School – an up-and-coming law school in Northern Virginia with a somewhat conservative reputation. GMU’s problems began in early 2000, when the American Bar Association visited the law school for its routine reaccreditation inspection. The site evaluation team was unhappy that only 6.5% of entering students were minorities.
Outreach was not the problem; even the site evaluation report (obtained by the Center for Equal Opportunity’s FOIA request) conceded that GMU had a “very active effort to recruit minorities.” But the school, the report noted, had been “unwilling to engage in any significant preferential affirmative action admissions program.” Since most law schools were willing to admit minority students with dramatically lower entering academic credentials, GMU was at a recruitment disadvantage. The site evaluation report noted its “serious concerns” with the school’s policy.
Over the next few years, the ABA repeatedly refused to renew GMU’s accreditation, citing its lack of a “significant preferential affirmative action program” and supposed lack of diversity. The school stepped up its already-extensive recruitment efforts, but was forced to back away from its opposition to significant preferential treatment. It was thus able to raise the proportion of minorities in its entering class to 10.98% in 2001 and 16.16% in 2002.
The ABA was not satisfied. A few months after the Supreme Court’s decision in Grutter v. Bollinger, it summoned the university’s president and law school dean to appear before it personally, threatening to revoke the institution’s accreditation.
GMU responded by further lowering minority admissions standards. It also increased spending on outreach, appointed an assistant dean to serve as minority coordinator, and established an outside “Minority Recruitment Council.” As a result of its efforts to please the ABA , 17.3% of its entering students were minority members in 2003 and 19% in 2004.
The ABA was still not satisfied. “Of the 99 minority students in 2003,” the ABA complained, “only 23 were African American; of 111 minority students in 2004, the number of African Americans held at 23.” It didn’t seem to matter that 63 African Americans had been offered admission, or that many students admitted with lower academic credentials would end up incurring heavy debt but never graduate and pass the bar. What mattered were the numbers. Even a class that was 19% minority was insufficient if only 23 of them were African American.
At no point did the ABA ask about the graduation rate or the bar passage rate of students who were admitted under the lowered admissions standards that they were requiring of GMU. That evidently was not important either.
GMU was finally notified of its re-accreditation in 2006 – just in time to start the seven-year cycle over again. When the ABA again visited in 2007, its site evaluation team again expressed doubts about the school’s diversity efforts and it seemed that GMU might be in for a rough time again. This time the GMU dean shot back with the facts. Fully 45% of the African American students that the ABA had pressured GMU to admit experienced academic failure (defined under GMU’s academic regulations as a GPA below 2.15) in their first year. In contrast, only 4% of other students did. In a letter to the ABA , the dean complained of the difficulty of complying with the ABA ‘s diversity policy:
“We have an obligation to refrain from victimizing applicants, regardless of race or color, by admitting them to an educational program in which they appear likely to fail. This obligation is recognized in Standard 501(b), but we believe it exists independently of any ABA regulations. Adhering to this principle is the greatest obstacle to our efforts to increase the diversity of the George Mason student body.”
GMU’s failure rate for affirmative action admittees is hardly unique. Only 45% of African Americans who entered law school in 1992 passed the bar on their first attempt as opposed to over 78% of whites. The rest dropped or failed out of school, decided not to take the bar exam, or failed it. Even after multiple attempts, only 57% of African Americans succeeded. The gap was thus never closed. Many of those who never succeeded were left with huge student loans. Indeed, these days, it is utterly routine for law students to graduate with loans well in excess of $160,000. Some of those students are, of course, minority students.
The saddest fact is that research now suggests that affirmative action policies don’t just bring students into law school who have little chance of success, they also bring in students who could have succeeded, but end up failing on account of affirmative action policies that put them in the wrong law school for them. According to the analysis of Dr. Richard Sander, there are today approximately 7.9% fewer, not more, practicing attorneys as a result of the race-based admissions policies. Minority students attend law schools at which their entering credentials are well below those of their classmates. As a result they do poorly when they might have done much better at a less academically competitive class. Sander found, for example, that 51.6% of African-American law students had first-year GPAs in the bottom 10% of their class as opposed to only 5.6% of white students. These students are thus more likely to be disillusioned and drop out, fail out, or simply learn less than they would have if they had attended a school that better matches their level of academic preparedness.
Some faculty members at law schools would like to move towards fixing this problem. The ABA ‘s stranglehold on accreditation standards, however, make sensible admissions policies impossible.
6/26/08 Inside Higher Ed: “Diversity Meets Data at George Mason Law,”
by Andy Guess
The American Bar Association considers, as part of its accreditation requirements, a law school’s commitment to a diverse student population. For top-ranking institutions, that usually means some combination of aggressive outreach, race-conscious affirmative action and on-campus support services to help recruit and retain underrepresented minorities.
But what if the ABA’s diversity standard led some students on the path to failure?
Since 2005, when The Stanford Law Review published a controversial and highly publicized study concluding that there would be more black lawyers if law schools did not use affirmative action in admissions, opponents of such policies have argued that race-based preferences actually harm those whom it is intended to help. Yet there is also evidence that concerted outreach and support efforts can, if applied properly, prevent the potential negative effects of race-conscious admissions practices.
The “mismatch” theory, as it’s been called, posits that some African-American students have struggled and at times dropped out of highly competitive law schools even though they might have thrived at lower-ranked or less rigorous institutions, and gone on to pass the bar exam. The article concluded that without affirmative action, black students would be better “matched” with institutions that meet their qualifications, and that disparities in failure rates would disappear.
Now, an organization that opposes race-conscious admissions policies asserts that it has found data from one particular institution illustrating the sort of dynamic the study would predict. According to data obtained through a public records request, from 2003 to 2005 some 45 percent of African-American students at George Mason University School of Law, outside of Washington, had grade-point averages below 2.15, defined as “academic failure.” For the rest of the student body, however, the figure was 4 percent.
While the law school confirmed the numbers, it also provided details showing that since those years, the number of admitted African-American students increased while instances of “involuntary academic attrition” in which students are no longer permitted to continue the program unless they reapply and show improvement to achieve good standing – dropped to zero. Moreover, officials attributed the gains to an expanded outreach program that pairs each incoming minority student with both a student and an alumni mentor.
In 2004, the law school enrolled seven black students, four of whom were placed on involuntary academic attrition. In 2005, an equal number of black students enrolled, but five of them could no longer continue for the same reason. The next year, the law school began to see improvements: In 2006, one black student out of eight admitted suffered academic failure; in 2007, the enrollment of first-year African-American students climbed to 13, and none of them failed out.
“We feel that we’ve made significant progress, although you can always do better,” said Christine LaPaille, George Mason’s vice president for university relations. “The numbers speak for themselves. In the early 2000s, we had an attrition rate of more than 60 percent of our first-year African-American students. This year we admitted more African-American students than in any of the last four years, and this year we had an attrition rate of zero.”
The law school has seen its share of controversy surrounding diversity issues. The ABA has repeatedly questioned whether the school was doing enough to attain a sufficiently representative student body, a dispute that has at times spilled over into the public arena. The public records request, filed under the Freedom of Information Act by the Center for Equal Opportunity, revealed the stark gap in academic failure rates contained in a letter from the law school’s dean, Dan Polsby, to the ABA in response to a site visit report.
“We have an obligation to refrain from victimizing applicants, regardless of race or color, by admitting them to an educational program in which they appear likely to fail,” Polsby wrote. “This obligation is recognized in Standard 501(b), but we believe it exists independently of any ABA regulations. Adhering to this principle is the greatest obstacle to our efforts to increase the diversity of the George Mason student body.”
ABA Standard 501(b) states: “A law school shall not admit applicants who do not appear capable of satisfactorily completing its educational program and being admitted to the bar.”
While some critics have placed blame for the disproportionate failure rate of some minority students on the ABA, others defend the association’s standards and contend that schools should be taking more responsibility for the success of their students. “I don’t think any school should be failing 45 percent of any of its cohorts,” said Michael A. Olivas, the William B. Bates Distinguished Chair of Law and director of the Institute of Higher Education Law & Governance at the University of Houston Law Center.
Olivas, who has participated in ABA accreditation site visits, said the attacks on the diversity standard as applied to Mason were “very unfair and very misleading” because of the small sample size and suggested that minority students at a law school like George Mason might not feel welcome. “I think the support program has made a difference and I think the appropriate admissions standards for a top-40 law school have also made a difference,” LaPaille said of the law school’s more recent efforts.
The ABA concluded in its site evaluation report in 2000 that the relatively low enrollment of minority students at the school could be attributed to a dearth of “need-based scholarship grants, to minority or any other applicants” (which has since changed); an “[unwillingness] to engage in any significant preferential affirmative action admissions program”; and “its general reputation as a conservative law school.” In 2004, the school admitted 63 African Americans to the law program; seven accepted the offer.
Faculty critics, however, place the blame for George Mason Law’s low enrollment of African-American students elsewhere: on the distorting effects of affirmative action. If the school has historically been more reluctant to embrace race-conscious admissions policies than its peer institutions, then, the theory goes, minority students admitted to Mason would have higher-ranked alternative choices than their white and Asian peers. So, it shouldn’t be surprising that “black students tend to turn down our offers” in disproportionate numbers, said Michael I. Krauss, a law professor on the faculty.
Standards and Accreditation
The ABA’s standards on equal opportunity and diversity affirm that law schools must take “concrete action” to provide “full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.”
An attached interpretation to the standard clarifies, moreover, that the ABA does not have specific policy recommendations for achieving those goals – a standard that critics have attacked as “ambiguous” at best and disingenuous at worst.
“This Standard does not specify the forms of concrete actions a law school must take to satisfy its equal opportunity and diversity obligations,” the interpretation states. “The determination of a law school’s satisfaction of such obligations is based on the totality of the law school’s actions and the results achieved. The commitment to providing full educational opportunities for members of underrepresented groups typically includes a special concern for determining the potential of these applicants through the admission process, special recruitment efforts, and programs that assist in meeting the academic and financial needs of many of these students and that create a more favorable environment for students from underrepresented groups.”
The ABA itself, however, wrote an amicus curiae brief in support of the University of Michigan Law School’s affirmative action policies in the 2003 Grutter v. Bollinger case, in which the Supreme court allowed the voluntary use of race in admissions to achieve diversity as long as it was one among many factors. “[I]t is unquestionable that the improvement in minority participation in our law schools, and thus in our legal system, has been achieved largely by the use of race-conscious admissions policies such as those under attack here,” the brief stated.
Gail Heriot, a professor at the University of San Diego School of Law and a former associate dean at George Mason Law, cited the document in her concurring statement in the U.S. Commission on Civil Rights’s 2007 Report on Affirmative Action in American Law Schools. Heriot, who is a member of the bipartisan commission, first publicized the numbers from the public records request, which described student data after she left the school, in a blog post last week critical of the ABA’s practices on diversity.
“I think it’s fair to say that the standards [encourage] schools to seek diversity in an individualized way,” said Steven R. Smith, dean of California Western School of Law and former chairman of the ABA Section on Legal Education and Admissions to the Bar. “In that sense, I think they’re fairly open to schools being able to approach diversity in ways they want, as is true in most accreditation standards.”
The ABA said it completed its most recent periodic inspection of the law school in 2007, a requirement for maintaining accreditation status, which is necessary for enrolled students to be eligible for subsidized federal loans. While critics of the ABA’s diversity practices have sounded the alarm about George Mason potentially losing its accreditation, those with knowledge of such proceedings seem to be in consensus that it was never truly in danger.
“In my opinion, it’s quite unusual for a school to be disciplined” severely, Smith said.
The diversity rules have come under fire from, among other places, the Department of Education, which certifies accreditors and last year ordered the ABA to report on how it applies the standard.