November 29, 2007

Advocates of Diversity Grasp for Ways to Drive Change in Legal Profession

Washington — As advocates of racial diversity in the legal profession discussed strategy at a gathering here today, they seemed better equipped to pressure law firms to diversify than they were to drive change in the nation’s law schools.

The liberal-leaning American Constitution Society had assembled the panel of advocates at the National Press Club in hopes of finding ways to get law schools, law students, and the companies that employ lawyers to work together to help more black and Hispanic people succeed in the legal profession.

But one panel member, John Nussbaumer, associate dean of the Thomas M. Cooley Law School in Michigan, had bad news about law schools’ ability to contribute to the effort. He said that any pressure on law schools to diversify is being counterbalanced by pressures on such schools to take in students with high Law School Admission Test scores, to elevate their rankings in publications such as U.S. News & World Report.

Largely as a result of such ranking pressures, Mr. Nussbaumer said, 63 percent of black applicants to law schools are rejected by every institution to which they apply, leaving them substantially more likely to “never make it in the front door” than white applicants, who score higher on average on the LSAT and have a 35-percent rejection rate. He cited statistics from the American Bar Association showing a recent decline in the black share of the enrollment of the nation’s law schools, from 7.6 percent in the 1995-96 academic year to 6.8 percent in 2006-7.

Panel members were much more optimistic in discussing their efforts to promote diversity in law firms.

Andrew Bruck, a Stanford University law student who is co-president of Building a Better Legal Profession, said his organization — a fledging group of law students devoted to improving working conditions in their field — appears to be making waves by compiling rankings of law firms based on the number of minority and female lawyers they employ and elevate to partner. He said he had heard many students say they had chosen not to work at law firms with poor records in promoting diversity. His group plans in January to distribute its rankings to Fortune 500 companies, in hopes that those companies will put pressure to diversify on the law firms they hire.

Damon L. White, a staff attorney for General Motors, said his company was already doing just that. It has asked the law firms that it works with to match the amount of diversity on its own legal staff, which is 20 percent minority and 33 percent female, and has included language in its contracts with the firms that calls for them to be financially penalized for not having such diversity in their ranks. —Peter Schmidt

Comments

1. So, anyone have a well-informed clue why is this happening? What all needs to change?

   — Sharon    Nov 29, 07:17 PM    #

2. The Nussbaumer statistics are a red herring. US News evaluates schools based upon their median LSAT scores. The scores of students below the median, no matter how low, do not adversely affect US News rankngs. The reason schools reject greater numbers of black than white applicants is because the schools perceive the scores of many of the former to be so low that they are unlikely successfully to complete the program or pass the bar. This is a sad reflection of the myriad of social ills that adversely affect so many black Americans, which cry out for remediation. But it is unrelated to the desire of law schools to be ranked highly by US News.

   — steve    Nov 29, 11:40 PM    #

3. As an African American I’ve got to offer the comment that we shouldn’t expect to succeed because someone else finds ways to make us do so.

   As a professor I regularly encounter black students who figured to become doctors or lawyers without assessing their personal interests, and then become angered by expectations that they master organic chemistry or boring legal “jargonese”.

   Over the years I have met some students who flat out hate school, but somehow expect to succeed because they have been led to assume that world is supposed to arrange a way for them to do so.

   This whole discussion is too often based on racial racial accounting schemes that serve institutional interests rather than what young people need to be doing for themselves.

   This type of abuse needs to become a thing of the past__ the idea that skin color should determine what people ought to be doing is what got us into this mess in the first place. Will we never learn?

   — Ken    Nov 30, 09:17 AM    #

4. With a partner who, as a non-traditional student, just graduated cum laude from law school (and who is now a member of the bar), I must say that legal education almost defies belief in its atavism. I am an academic administrator; if any other college, dept, or profession used the same hazing (disguised as teaching), bias against older students (disguised by law firms who only hire summer interns – and non-traditional students are not able to do summer internships because they are working or taking classes), and resistance to actively seeking a diverse faculty and student body (disguised by the good ol’ boys who run law schools and law firms as simply seeking merit), it would be run out of town.

   — Carol    Nov 30, 09:52 AM    #

5. I agree with Steve (Comment #2) that the pressure to maintain high LSAT scores for rankings purposes is probably not the primary reason why more minority students, particularly more African American students, aren’t winning seats with the elite law schools to which they apply. I believe a more significant reason is the lack of cross-cultural competence or lack of cross-cultural empathy at elite law schools and in their admissions teams.

   Our best law schools are led by Euro-Americentric scholars and decision-makers. These Euro-Americentric decision-makers needn’t be Whites who were raised in upper-middle-class or upper-class Euro-Americentric cultural and linguistic environments, but I suspect more than 70% of them are. I also suspect very few of these decision-makers took advantage of their opportunities to become very knowledgeable about how minority members of our lower-class or lower-middle-class use language, how they interpret and remember complex ideas, or how they demonstrate their comprehensions of complex ideas.

   The LSAT is a great tool for testing several important skills and certain forms of intelligence, but it does not directly test a student’s oral rhetorical skill or a student’s ability to grasp ideas that would be presented to him or her orally and in culture-respecting academic contexts. The LSAT limits the student to a demonstration of his or her ability to use several forms of formal and informal logic while using the written version of the Standard American English dialect. I suspect students who were raised in upper-middle-class and upper-class Euro-Americentric cultural environments and were raised using English dialects that were the same as or very similar to the Standard American English dialect used in the LSAT would perform better on the LSAT, all other things remaining equal, than equally talented and erudite lower-class and lower-middle-class minority students whose native cultural and linguistic backgrounds were very different from their upper-middle-class and upper-class Euro-Americentric peers.

   However, I suspect many talented lower-class and lower-middle-class minority students figure out ways to close these cultural and dialectical gaps while communicating orally in and in academic contexts. I also suspect many of them, because of their dual-cultural or multicultural social environments, develop methods of idea acquisition and demonstration that are different from their average upper-middle-class or upper-class Euro-Americentric peer who would spend almost all his or her time in a single cultural environment. Unfortunately, the LSAT doesn’t enable talented lower-class and lower-middle-class minority students like these to demonstrate their intellectual fitness levels in culturally and dialectally neutral ways.

   A counterargument might be that our elite law schools are neither culturally nor dialectally neutral, and that lower-class and lower-middle-class minorities who fail to master the upper-middle-class and upper-class Euro-Americentric culture and the written form of the Standard American English dialect as well as their upper-middle-class and upper-class peers are not as intellectually fit for our elite law schools as their equally talented and erudite upper-middle-class and upper-class Euro-Americentric peers. Some might even argue that lower-class and lower-middle-class minority students must be as talented and erudite as their upper-middle-class and upper-class Euro-Americentric peers AND must possess the same cultural and dialectical competencies as their upper-middle-class and upper-class Euro-Americentric peers in order to deserve opportunities to complete the rigorous programs at our elite law schools and to benefit from the social capital, symbolic capital, and prestige our elite law schools offer their students.

   I believe cross-culturally competent and cross-culturally empathetic elite law school admissions decision makers would be able to identify and use reliable indicators of adequate or superior intellectual fitness in lower-class and lower-middle-class minority law school applicants that aren’t revealed by LSAT scores and that would signal certain prospective minority students would be able to perform well in their rigorous elite law school programs. Indeed, I believe the elite law school admissions teams that would give the LSAT scores of lower-middle-class and lower-class minority prospects the same consideration as the LSAT scores of upper-middle-class and upper-class prospects would probably give cultural and dialectical preferences to upper-middle-class and upper-class Euro-Americentric prospects. Increasing the amount of cross-cultural competence and cross-cultural empathy at elite law schools and on elite law school admissions teams might enable more of our elite law schools to develop admissions decisions algorithms that would help them use prospective students’ LSAT scores in more culturally and dialectically impartial ways, and would help them do a much better job of culturally and socioeconomically diversifying each year’s crop of intellectually fit students.

   — E.C. Hopkins    Nov 30, 11:28 AM    #

6. Ken (comment #3),

   THANK YOU!

   — Floyd Bowles    Nov 30, 12:39 PM    #

7. I, in turn, agree with E.C. Hopkins in Comment No. 5. I do think that there is a cultural gap that can make assessment of minority candidates and candidates from the lower end of the socio-economic spectrum difficult. The LSAT is also of only modest utitilty as an assessment tool. However, it is extensively validated for all groups and it is as predictive of law school performance for poor or minority students as it is for students from privilged backgrounds.

   But whatever the difficulties of assessment may be, I do not believe that is the principal problem. Rather, at every stage of the pipeline into law school, fewer black kids get through. Because blacks are disproportionately poor and forced to attend inferior schools, relatively fewer of them progress through elementary and secondary school and graduate from high school And those that do have often been poorly educated. For the same reasons, the black kids who do go on to college are less likely to graduate: They lack the financial resources to complete their degrees and they are too often ill-prepared for college-level work. Thus, by the time law schools are sorting through applications, so many black kids with the talent to be successful have dropped out of the pool that blacks will inevitably comprise a lower percentage of the student population in law school than of the general population in the country.

   Ken (Comment 3) is certainly correct that students should be subjected to high standards and that individual students should be counseled to move in the direction that their talents and interests lie. But to view the problem as primarily a lack of individual motivation is to ignore reality. If a large percentage of white kids grew up in poverty in the inner-city and a large percentage of black kids grew up in affluent suburbia, we wouldn’t be having this discussion.

   — steve    Nov 30, 04:11 PM    #

8. Steve, I believe your comments in #7 are spot on. Indeed, since such a small proportion of talented lower-class and lower-middle-class minorities do, amazingly, find ways to prepare themselves to complete the same rigorous elite law school programs that most of their peer middle-class and upper-class applicants were prepared for, our elite law schools probably should try to use superior cross-cultural expertise while evaluating lower-class and lower-middle-class minority applicants in order to limit the likelihoods that they would deny admission to lower-class and lower-middle-class minorities who could graduate in the top 75% of their classes.

   It might benefit elite law schools if they would set up special admissions teams made up of cross-culturally competent and cross-culturally empathetic minority law professors and law school graduates who would focus exclusively on evaluating lower-class and lower-middle-class minority applicants’ files. These teams could develop criteria that would help them better inform less cross-culturally competent or less cross-culturally empathetic decision-makers about lower-class and lower-middle-class minority applicants who would have certain combinations of non-LSAT attributes that would reliably indicate it were more likely than not that they could perform well enough to graduate among the top 75% of their classes at elite law schools even though they had only scored between 155 and 165 on their LSAT exams.

   Our society does not do as much as it could (or should, in my opinion) to create level playing fields for our lower-class and lower-middle-class minority citizens during their first two to three decades while they develop their intellectual and economic potentials and compete for their desired social roles. I’m a fan of John Roemer’s recommendations in his Equality of Opportunity; but I’m just a very rare Afrocentric African American male law student trying to prep for his first semester exams. There’s not much I could do, with my modest levels of wealth, power, and prestige, to persuade many millions more of my fellow citizens that our nation should invest many billions more in our lower-class and lower-middle-class citizens. I realize the pipeline problem is very real, and I realize that elite law schools can’t do much to fix the things that cause their minority pipeline problems (although, Elizabeth R. Parker’s Fall 2005 University of Toledo Law Review article, “A Dean’s Dilemma or Lessons in Diversity,” describes a few ways law schools might attempt to partner with community organizations in order to work on their pipeline problems).

   Even so, elite law school admissions teams should be able to draw from their best minority students and alumni, and the best social science scholars (sociolinguists, sociologists, social psychologists, education scholars, political scientists, etc.) at their institutions in order to identify several combinations of non-LSAT attributes that would reliably signal certain lower-class or lower-middle-class minority students could perform well enough to finish in the top 75% of their classes if they were properly supported—financially, academically, socially, and culturally—during their first years of law school.

   — E.C. Hopkins    Nov 30, 06:03 PM    #

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