The Man Was About To Close 40 Black Law Schools

Over the past few years, law schools with more than 30% of graduates who don’t pass the bar exam in their state have been put on probation and were in danger of being closed (ABA interpretation 301-6.).

Guess which law schools were most in trouble? Those with a lot of black students. Only about half of black law school graduates pass the bar (it’s about 40% in California, which has America’s toughest bar exam). Hispanics don’t do so well either. Japanese and Chinese Asians have the highest percentage of any race in passing the bar. Then whites and other Asians.

It sounds a lot like The Bell Curve.

So almost every black law school was in danger of being closed down by the Department of Education at the urging of the American Bar Association. Obviously liberals would’ve gotten up in arms about this and the matter is being resolved so that law schools with lots of black, brown and yellow students need not fear being closed.

Nobody has done a good write-up on this. I guess this topic makes people uncomfortable.

What can we as Jews do to help the black man?

Attorney Justin Levine responds: "My advice? Get rid of the American Bar Association accreditation process. It is a monopolistic holdover from the fuedal era that serves no legitimate purpose. Simply have each law school post their bar passage rates and let the market take care of things. No reason to give the ABA the power to "punish" law schools."

I know almost nothing about this story. I’m just sharing with you what I know. You can read more here.

Here are some excerpts from the hearing: AMERICAN BAR ASSOCIATION SECTTION OF LEGAL EDUCATION AND ADMISSION TO THE BAR STANDARD REVIEW HEARING WENDESDAY, MAY 16, 2007 9:00 a.m. THE WESTIN ST. FRANCIS 335 POWELL STREET SAN FRANCISCO, CALIFORNIA 94102

My name is Frederic White. I’m Dean of Golden Gate University School of Law located here in San Francisco.

…By establishing a first time bar passage standard the interpretation will penalize access schools such as Golden Gate who have had as part of their respective core missions a desire to open up the gates of legal education to populations, including but not limited to minorities, who historically have been denied these kinds of opportunities. It is well documented that certain underrepresented groups do not pass the bar on their first attempt in the same percentage as the majority population, thus, the proposed interpretation will have a especially debilitating effect on students attending HBCU law schools. Further, I’m unaware of any empirical data showing that first time bar passage produces smarter, better, or more ethical lawyers.

…I’m James Douglas, and I represent Thurgood Marshall School of Law.

Fifty years ago I was filled with joy. The U.S. Supreme Court had just rendered its decision in Brown versus Board of Education, and I along with all of the African-Americans in this country believed that after more than 300 years we had an opportunity to at last become full members of the American society.

We as African-Americans were even more excited because the architect of the theory that led to the victory in the Brown case and victory in numerous other civil rights cases leading up to Brown was a group of Africa-American lawyers, most educated at Howard University School of Law and guided by the late Thurgood Marshall whose name dons the law school I represent today.

Today I think back to the 1950s, the 1960s, and to some extent the early 1970s, for that was a time when the leadership of this country really felt the need for inclusion.

That was a period of time when the moral leadership of the country was led by the Federal Courts, the White House, and, yes, even Congress, made bold moves to include minorities in the fabric of every cloth woven in our American society.

In fact, one institutional group deeply rooted in American society that stepped to the forefront was legal education led by numerous dedicated law school deans who believed there should be many more opportunities in the legal profession for people who looked like Thurgood Marshall, and so was born CLEO, LEAP, SPACE, LEON, MILES, (ph.) and many other programs aimed at attracting more African-Americans and minorities to legal education and the legal profession.

Our honorable organization, the American Bar Association, even adopted goals to address the lack of diversity in the legal profession.

To most African-Americans the future at that time appeared to be brighter, for how were most of us to know that in the early seventies the tide would just slow down in the late sixties, would begin to turn.

For those of us who were slow to recognize the change, the decision should have been a wake-up call.

At that time the inclusion leadership in the country of the sixties began to desert us.

First went the White House, one friend gone. Second went the Courts, another friend gone. Third went Congress, another friend gone. Fourth went legal education, another friend gone.

And now it appears that we are about to lose even our dearest friend, the American Bar Association.

One reason African-Americans have always had hope over the last 50 years was the belief that as long as there were African-American lawyers these lawyers could and would somehow fashion a remedy to rescue African-American people from the evils of the American society.

When one thinks of tides, one generally thinks of pleasant beaches and white sand. The tide slowly goes out, low tide, and the tide slowly returns, high tide. But there are tides that are not so pleasant. Some tides are very violent in their actions, tsunamis, and the proposed action to be taken with interpretation 310-6 on bar passage to law schools like Thurgood Marshall School of Law is truly a tsunami.

Therefore, the Thurgood Marshall School of Law along with other schools located in historically black colleges strongly oppose this proposed interpretation of standard 301-6.

I am sure I don’t need to remind the panel of the racial makeup of most law schools located in historically black colleges, but I will.

Before the late sixties, when other law schools denied admissions to most African-Americans, law schools at Texas Southern University, Southern University, Howard University, Florida International *University, and North Carolina Central University accounted for a substantial portion of African-American lawyers.

When African-American law hopefuls had nowhere else to go, they came to us, and we delivered.

Even in the late sixties, seventies, eighties, and nineties when other law schools cracked their doors slightly, African-American students came to us — African-American law students came to us, and we delivered.

And now some of those law schools with doors slightly cracked have began to close. African-American law students still come to us, and, in fact, historically black law schools have continuously surprised the legal profession with large numbers of African-American lawyers.

In the early days, when most other doors were closed, the best and brightest African-American students came to us, and we educated them, and they became successful lawyers.

When other law schools cracked their doors, we got fewer of the best and brightest and more of the least and less bright, but we still educated them, and most of them became successful members of the legal profession.

I address this panel this morning to inform you that interpretation 310-6 with a 70 percent first time bar passage rate will require law schools at historically black colleges to make an election between two evils. We must abandon our mission of educating minority lawyers or we must close our doors.

We all know that the numbers. In countless studies African-American and Mexican-Americans on a national scale perform at less than 70 percent of first time bar-takers and in some jurisdictions performance is less than 50 percent.

Some of you may say that it’s all right that the law schools at historic black law schools close their doors, we still have approximately 180 other law schools in which to educate African-American lawyers.

But these 180 other law schools will realize that if they seek to increase their commitment to diversity they increase the possibility of reducing their first time bar passage rate.

In other words, they know that law schools with high African-American enrollment tend to have first time bar passage rate problems. So they, in turn, do nothing.

In the end, the rule of approving the interpretation 310-6 is another step in the direction of pre-1954 America.

Twenty or 30 years from now it is my hope that future teenage James Matthew Douglasses will not be told, as I was told, "Don’t consider law as a profession. The legal profession is not really open to African-Americans."

This morning we ask the panel to reject interpretation 310-6 and keep the doors of legal education in the legal profession open to all minorities.

Keep the doors open to all Americans.

THE DEAN OF WHITTIER LAW SCHOOL NEIL COGAN SAYS:

In 2001 or thereafter I tried to learn whether the Section would take in to account our school’s commitment to diversity in applying the bar passage standards to a program, but I learned nothing.

I found that the law school had moved to an area, it had originally been in Los Angeles and moved to Costa Mesa, had moved to an area of the state with a large immigrant population from Mexico and Central America, from Vietnam and Korea, and was seeking to serve those communities and also the African-American community in Costa Mesa and other nearby towns.

I found myself perplexed about how to maintain our commitment but not run afoul of an unknown standard.

Now that I’ve read proposed interpretation 301-6, my perplexity has turned to sadness and despair.

After nearly 40 years before the bar and more work than anyone cares to listen to me describe, I find the clock has been reset to where it was before I first was sworn in and first began what we believed was the good fight for justice.

This past Sunday, Mother’s Day, as I greeted the 2007 graduates, I feared that for many of them their brothers, their sisters, their cousins, would never have the opportunity to get a legal education.

Maybe 70 percent is only a trigger, but deans and admissions committees will stay as far removed from the trigger as they possibly can.

And in California, where the graduates of half the ABA law schools do not reach 70 percent as a regular matter, their are deans and admissions committees that will shy away from admitting minorities whom they predict will not pass the Country’s toughest bar examination on the first attempt.

My esteemed colleague, Bill Patton, tells me that 32 law schools may not satisfy the proposed interpretation, and I suspect many others will be concerned that they cannot as well.

I ask you, who will serve the African-American, the Hispanic, the Korean and Vietnamese communities of southern California?

Who will look face-to-face at the applicants from those communities and tell them we have no confidence that they will pass the bar on the first attempt and they should choose some other career?

Without preplanning and coordination at the graduation on Sunday our speaker, a Justice of the California Supreme Court, our valedictorian, and I each spoke about the value of welcoming and including immigrants in to the legal community and serving immigrant and minority populations.

We did not think we were making vacuous graduation speeches.

We thought we were speaking truth and promoting justice.

I sincerely request that you, the panel, the committee, undo what the Section says has been the Section’s practice, a practice that it tragically says it wishes to perpetuate.

…I’m Bill Patton. I’m a Professor at Whittier Law School…

I think one of the principle moving forces has been the No Child Left Behind Act, which is forcing undergraduate schools, elementary schools, to look for measurable criteria, usually looking for outcome measures.

And, obviously, for law schools the easiest outcome measure to study is bar exam rates.

I think we’re also looking at this historical genesis and the effect of a previous lawsuit against the ABA which is the lawsuit that Western State Law School brought in which they for the first time made public and pointed out some discrepancies among the bar passage rates of ABA law schools and said there should be more consistency in terms of the application of the standards to the various law schools.

And, third, I don’t think we can underestimate the cajoling and almost marching orders of the Department of Education last year in terms of bringing more transparency to the accreditation process.

There was an attitude there that was expressed by the members of the DOE that there’s something wrong when law schools are graduating students who spend a great deal of time, and they, unlike the graduates of other professional schools, are not passing their examinations above 90 percent.

So I think we have to look at all of this in terms of the genesis of 301-6 and ask ourselves whether or not the response is one which we as an institution want to provide to society.

We’ve seen in terms of not only my own study but already much of the testimony that there’s a disparate impact that a rule like 301-6 will have on different constituencies.

First, it’s going to have a tremendous impact, as our earlier speakers have indicated, on law schools’ admissions policies.

The fact that even though the 301-6 standard is 70 percent has been characterized as a trigger, it’s going to have a tremendous impact on setting the bar for admissions.

My study also indicated the disparate impact that law schools in high cut state jurisdictions are going to experience.

The fact that the Dean of Golden Gate already indicated, the fact that on average for the last several bar administrations at least 50 percent and sometimes more than 50 percent of the ABA California approved law schools have not met the trigger mechanism, and among those schools — I’m not going to mention names — but among those schools we recognize many of the best law schools in the country, the second tier law schools that are doing an excellent job.

I think we also have to be very careful as the sole accrediting agency for American law schools not to become complicit in ways that we might disapprove.

We know we can demonstrate this, and much has been written about the cut scores in states and that those cut scores have as much to do with determining attorney competence so that our public will be well served by competent attorneys as it does in terms of a monopoly in terms of allowing sufficient numbers in to the profession to serve the underserved population at the moment.

So I think that the disparate impact that this standard has is something that’s very serious.

I also want to say you’ve met your commitment, and I want you to feel good about this. You’ve met your commitment to the DOE.

You have done exactly what you said you would do. You have promulgated a proposed interpretation. You’ve put it out for public comment for it to be vetted, and I think what we’re giving you now is a number of concerns that will permit you to go back and rethink this interpretation in a way that will bring confidence to the public that the law schools are doing a good job, that will provide access to law school for those who have been left out of the system.

It will increase diversity. It will allow more minorities access to the profession, and it will protect consumers by forcing law schools to provide sufficient educational training to give those students the competencies necessary to zealously and competently represent their own clients.

I think we have to also be very careful in drawing a bright line rule. I know that we need transparency. I know that we need a rule in which all of us can understand where we’re going.

But we need to be careful in drawing that rule that we exercise wisdom and a cost benefit analysis.

I believe that we can protect consumers, consumers in terms of those law students who are prospectively going to be looking for law schools, those students who will be graduating from schools, and clients who will be getting the representation.

I think we can draw that line at a much lower percentage and still provide protection.

We have to be careful that the rule doesn’t slide from consumerism in to paternalism, a rule that will be so rigorous that it will impose a standard that will not enable law schools to admit a diverse student body.

So I would ask you, rather than looking to targets set by state bar committees and state Supreme Courts, which aren’t completely promulgated for issues of competency, that you go back to the drawing board, think about how we can protect the public, protect the prospective students with knowledge so that they, as consumers, can make decisions of which law schools to attend without stepping across that threshold to paternalism where we’re going to take opportunities away from prospective law students.

Elizabeth Rindskopf Parker says:

The State Bar of California provides 10 years of statistics for first time African-American and Hispanic bar-takers. As a group African-American first time bar-takers have never passed the California state bar at a rate of 70 percent.

In fact, they average a pass rate of 52 percent for the July bar and 31 percent for the February bar, and I have provided a chart that will illustrate these statistics in greater detail.

For Hispanic first time bar-takers, the success is slightly greater, however, except for one bar exam, July 1997, where the pass rate was 72 percent, over the past 10 years as a group they, too, have not passed at a rate over 70 percent.

In fact, they average a pass rate of 62 percent for the July bar and 46 percent for the February bar…

It’s shocking to observe below average entrance LSAT median scores that African-American and Hispanic students have.

Why is this the case?

Why is it that statistics as recently announced in a meeting we had today show African-Americans at an average LSAT score of 143 and average admit of 150, and Hispanics 150 — or pardon me — 148 with an admit of 154 or 153, when their white counterparts have corresponding scores of 154 and 158 for admission?

I think the answer should be obvious to everyone.

It’s that these students have been ill-served by their educational experience from the very earliest years.

They enter their college experience with a poor experience in high school typically. They find upon arrival in high school — pardon me — in college that their high schools have ill-prepared them. College becomes something of a remedial experience. They arrive then at the conclusion of college seeking, we hope in greater numbers, to become members of the legal profession weakly prepared for the challenge of an LSAT and undergraduate GPA set of tests that, of course, are driven by U.S. News and World Report.

And so they are, indeed, entering with disabilities when they arrive at law school.

The fact that they may find that they are not the test-takers with the kind of skill that higher schools seem to benefit from ought not to be something that penalizes the law schools that do a fine job in making up the deficit that they arrive at when they enter law school doors.

Indeed, we also find that in three attempts at bar passage our students, no matter their success in law school, whether measured by their grades in law school or their entering GPA or LSAT…

I am Marc-Tizoc Gonzalez, and I’m testifying today on behalf of the East Bay La Raza Lawyers Association, which is a specialty bar association for lawyers, legal workers, and law students who live or work in Alameda Contra and Costa Counties.

…You should by now be generally familiar with the racial and cultural demographics in the United States and California. In both cases a terrible chasm exists between the proportion of the population categorized as Hispanic or Latino and the proportion of attorneys of such heritage.

As "The California Bar Journal" featured in its front page lead story for April 2007, 35 percent of the state of California is categorized as Hispanic, yet we constitute only 3.8 percent of California’s attorneys, an unacceptable disparity of 31 percent.

I leave it to others to say if that gap makes that, the Latinos’ representation in California’s bar, as the worst in the nation.

But consider this: The Latino representation at the California bar is roughly one-ninth of our proportion of the state’s population.

In contrast, people racialized as white represent only 44 percent of the state’s population, yet they make up over 84 percent of the bar.

People racialized as white constitute only 8.8 percent more of the state population than those categorized as Latinos but have roughly 22 times the representation of Latinos in the California bar.

Yet there is more to this story than statistical analysis.

Latinos and whites, like all racial groups, feature significant and vibrant internal diversity, yet nevertheless, I submit the following to you: Chicano or Latino lawyers have special knowledge of and particular affinities to one of the most pressing crises of U.S. law and society, the rights of residents and the jurisprudence of citizenship.

Please note that I do not claim that Latino lawyers are the only ones who have insights in to immigration and citizenship or other aspects of the socio-legal conditions of subordination.

Indeed, lawyers from many other backgrounds have dedicated themselves to advocating those marginalized by society who are routinely denied the full and equal protection to the law.

As you know, however, today’s national discourse on immigration is by-and-large in reference to Mexican and other Latin immigrants, our community as Chicano and Latino lawyers.

Debates about the jurisprudence of immigration and citizenship pertain directly to our personal and family history and to everyone’s future in these United States.

I do not want to overstate the importance of immigration. It is critical to California and the nation’s changing demographics, but the immigration law by itself is only one issue next to economic opportunity, workers’ rights, and public benefits like education and health care, all issues that Chicano and Latino lawyers contribute to meaningfully if we’re allowed to.

I want to ask, how is California equipped to face its current demographic reality?

In the dawn of the 21st Century Latino lawyers represent less than 4 percent of our state’s bar.

If the ABA adopts its proposed interpretation 301-6, the Latino community will suffer a double hit. Not only do people categorized as Hispanic have lower first time bar passage rates, but we also tend to have lower LSAT scores, which, as you know, are weakly correlated with first time bar passage.

Therefore, the proposed 70 percent first time bar will negatively impact Latinos, because we, like African-Americans and Native Americans, and perhaps some of the subgroups of the Asian-American coalition, we tend to pass the bar exam on the first timer rates that are below the proposed trigger.

In contrast, as individual law professors and research centers like Boalt Hall’s Warren Institute on Race, Ethnicity & Diversity or Thelton E. Henderson Center for Social Justice have articulated in their written comments, all of these communities’ eventually bar passage rates would meet the proposed new trigger rate, however, while amending the proposed interpretation to use eventual instead of first time bar passage rates would be a marked improvement and should be seriously considered by the Committee, such as an amendment by itself is unlikely to facilitate access to quality legal education and competent lawyering in the 21st Century.

As you must understand, the relatively low overall bar passage rate in a state like California means that aspiring Latino lawyers must not only contend with our racialized statistics of bar passage rates, but also the geographical or jurisdictional differences in bar passage rates that proposed interpretation 301-6 fails to consider.

The same is true for many other racialized social groups in this state.

I want to leave you with this: In the famous law school affirmative action case, Grutter versus Bollinger, Justice O’Connor remarked on the importance of social diversity in American law schools and listed a set of benefits, including the perception that the United States is a fair and free society.

As you all know, in a few weeks the Supreme Court will likely publish its decision about school desegregation efforts in Seattle and Kentucky.

Race remains salient in America. On what side of the effort to integrate society to oppose the exclusion or segregation of substantial proportions of people of color should the ABA stand?

Please reject proposed interpretation 301-6 and do the necessary additional work to produce a rational standard that complies with the Department of Education mandates without discriminating impact on Latinos and other communities.

I’m Leroy Pernell, the Dean of the College of Law at Northern Illinois University….

The performance of people of color on the bar exam and disparity between that and all other exam-takers is not simply a matter of graduates who are not as prepared as others or somehow don’t have skills that others do.

But it should come as no surprise to anybody in this room that the challenge to the bar exam itself as a racially obnoxious system has been made for many years.

That challenge has never been cleared up, and to validate the potential racial problems of bar examinations by incorporating a percentage as this standard does, I think doesn’t make any problems better.

If anything, it makes it worse.

I know there was concern expressed about the concept of transparency, that we want to have a — ABA wants us to be transparent and the Section wants to be transparent, but we’re talking about incorporating a standard — a percentage regarding a process that itself is anything but transparent.

Any of you who have ever dealt with the bar examination process in your individual states know that transparency has never been the rule there.

Getting information out of how bar exams function, how they’re graded, how they’re put together, is like uncovering the secret of the Sphinx.

The reenforcement of this by way of a so-called "trigger," and I think that that’s an interesting terminology in terms of "trigger," usually associated with guns, I think in this case it might be apt, but we’re pulling this trigger supposedly as a suggestion for possible additional information to be sought, but, in fact, I think we know that the — and this is no real criticism of our accreditation process, but we know that these triggers become de facto standards, both internally in terms of the accreditation process and externally.

I think that schools that recognize that they are in danger of triggers being pulled will respond with changes to their admissions process in ways that have already been outlined by a number of other speakers, and that doesn’t serve legal education very well at all.

The concern about admissions, given the rather static number of admissions of African-American and people of color at law school over the past few years, and I know I was surprised this morning there might be a slight bump in some numbers, but if we look at the last 12 years, I think now it’s seven out of the last 12 years we’ve had a drop in the number of matriculating students of color.

Knowing that the options to attend a wide range of law schools could be negatively impacted by schools that exist under a cloud of — of this so-called seven percent trigger only makes that, again, worse.

The — the burden of proof that this standard shifts to the schools is also not insignificant, I think deserves some mention here.

We say that, well, this just triggers it, you’ll have to get more information explained to committees.

All of us who have gone through accreditation process know that pulling that type of information together and reliably communicating it is not necessarily an easy task, and it’s one that I think in general we would like to try to avoid.

Why place that burden regarding a set statistical number that, in fact, is somewhat arbitrary and bears no relationship to real measure of competence?

I’ll conclude with just a short example that I’ve shared with some of you before, but it speaks to the lack of rational basis for looking at bar exam percentages as measures of real competency or law school program.

Back in the seventies, when I was still in Ohio, we encountered a situation where the bar examiners reported a bar passage figure to the Chief Justice of the Supreme Court.

The Chief Justice in a response that received some publicity said to the bar examiners, "The percentage of bar passage is too high. Go back and lower it."

Is that the type of system that we want to honor by adopting this type of standard that does nothing more than perpetuate a system that has not served people of color at least very well in this country?

LAW PROFESSOR MARINA ANGEL WRITES: "Dan, I hope you are enjoying your new job, but you are in the middle of a serious controversy on the proposed standard on bar passage. I’m shocked that the ABA would even consider taking such an anti-diversity position. The proposed standard would wipe out the majority of law schools that service minority communities, cutting off future leadership for those growing communities. Lawyers don’t just practice law but serve in leadership positions in our political, civic, charitable, and business communities. Minorities in America will soon be a majority, just as they are in our largest state, California. As legal educators, we have an obligation to train the leadership of those communities – not to close them out of opportunities to participate in the upper levels of American society."

About Luke Ford

I've written five books (see Amazon.com). My work has been followed by the New York Times, the Los Angeles Times, and 60 Minutes. I teach Alexander Technique in Beverly Hills (Alexander90210.com).
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