Luke Ford

Until this year, the ABA required law schools to have at least 70% of their graduates pass the bar or the law school would be placed on probation and be in danger of losing its accreditation.

But this standard resulted in yowling protests from law schools with a lot of students on the low end of The Bell Curve.

Almost all black law schools, for instance, would be shut down under this standard and almost all law schools with a high percentage of black and Hispanic students (they have the lowest rates of passing the bar of any racial group).

Here are the data for California law schools, based on race, sex, and accreditation.

So what happened when standards collided with putative compassion for minorities? Standards lost.

David Bernstein writes on Volokh.com:

One can question whether schools whose minority students pass the bar at rates well below 75% are doing those students much of a favor by accepting them despite low LSAT scores that predict future bar passage issues, taking their tuition money, and then leaving half or more of them without a career as an attorney.

…If they were told, "come here and you have a 35% chance of becoming an attorney," some might still choose to come. But such information is at best obscured, and at worst is blatantly lied about, lest it discourage enrollment. Given that, I’d say on the average if you have the choice of going into or continuing a career in education, business, government, or what have you, you’re likely to be better off doing that then spending up to three years and prodigious amount of money in a likely futile quest to become a lawyer. (Note that be definition, all minority law students are at least college graduates, and thus have whatever career opportunities their college degree would give them, plus alternate graduate school options.) But again, if students were given full information on their statistical chances of success, and chose to pursue that option anyway, I’d defer to their judgment as to what is best for themselves.

…the ABA’s own accreditation guidelines currently prohibit law schools from admitting students who they think won’t succeed in making it through law school and passing the bar. But the guidelines also state that this should not be interpreted in a way to discourage "diversity". So the ABA’s current position is that white students are not to waste their time and energy on law school if they are unlikely to succeed, but law schools are encouraged to essentially defraud minority students.

…When it comes to "diversity" admittees, many students are in fact admitted with LSATs significantly lower than the norm. You can get an idea by reading the district court opinion in Grutter, which recounted the stats at U. Mich., and you can then extrapolate to the pool available to lower-ranked schools. Law schools beyond the top ones (which get the best students of all backgrounds) are aware that if they admit students with an LSAT below "X", the chances of bar passage are very low, and they admit them anyway, to satisfy "diversity" requirements.

…if current practices indeed benefit their supposed beneficiaries, why law schools won’t, and should not be required to, reveal the success rate of these practices.

…I don’t have those numbers; you need the LSAT data for students, and then match it with the bar pass data. The law schools and the state bars could provide this data, but they aren’t telling (see attempt by Sander et al to get the relevant data from the California bar). But I’ve spoken to administrators at several different schools who have acknowledged that there is a score below which they knew that their students start to have real trouble getting through law school and passing the bar. I’ll be happy to join you in lobbying the ABA to require law schools to release this information on publicly available websites, or at least to researchers who can make the data available on websites.

The problem, in any event, is not that law schools are taking in students who have a special story despite their low LSATs that leads the schools to believe that they will "beat the odds." It’s that the ABA has, in effect, required law schools to take in students even when they are reasonable confident they won’t beat the odds, lest they get in trouble for not having sufficient "diversity" in admissions, with the ABA focusing solely on inputs.

As for Michelle Obama, I haven’t heard her story (and I don’t trust politicians’ stories in any event absent independent confirmation), but at least re law school there is an obvious methodological problem with relying on the stories of those who "made it" and not those who didn’t. The former group is, by definition, more successful, and therefore much more prominent and vocal. Those whose promise was set back by wasting three years in law schools and more time futiley studying for the bar tend not to advertise it, and rarely wind up in a position to "be heard" by the legal profession.

Finally, the ABA bars law schools from admitting law students likely to either not succeed in law school or fail the bar, so there is a professional consensus that such prediction is possible, and should be used–but only for non-URMs.

Professor David D. Friedman (Milton Friedman’s son) writes:

It seems to me that there are two different mistakes one would like law schools to avoid:

1. Admitting students who won’t benefit from admission and probably won’t pass the bar, in order to raise the racial diversity of their student body.

2. Rejecting students who will benefit from admission but will still have a lower than average chance of passing the bar, given where they are starting from, in order to raise the school’s bar passage rate.

Hence it seems to me that if you are going to have accrediting standards, they ought to be based on some measure of "value added" rather than "quality of graduates" (as measured by bar passage rates). The fact that a school can get a student who starts at the 99th percentile LSAT to pass the bar isn’t much evidence that it is worth going to.

My conclusion is that if the ABA is going to set standards along these lines they should be based on both bar passage rates and entering LSATs. Ideally, they could run a regression for each state with LSAT as the independent variable, bar passage probability as the dependent variable, and so find, on average, the probability that a student who starts with a given LSAT will end up passing the bar.

Using the results of that regression, they calculate what the bar passage rate ought to be for a given class at a given law school if it is providing an average education. If the actual rate is more than a fixed amount below that, the school doesn’t get accredited.

That way accreditation provides the information that matters to the student–how much more likely am I to pass the bar if I go to this school or that?

Of course, I also have reservations about other parts of the system–but at least, if they are going to do this part, they ought to do it right.

The National Law Journal reported Feb. 4, 2008:

Amid pressure from the U.S. Department of Education, the American Bar Association is poised to tighten a rule that requires law schools to show that they are graduating students who can pass the bar exam.

The ABA is expected to approve the controversial measure at its meeting in Los Angeles from Feb. 6 through Feb. 12, when its House of Delegates will consider a recommendation from the ABA’s legal education section.

The proposed change has drawn sharp criticism, especially from those representing minority law students’ interests. But it is one that the ABA hopes will appease the Education Department, which grants the ABA authority to accredit law schools.

"Under the circumstances, we think it’s fair and appropriate and as good a rule as we could come up with," said Hulett Askew, consultant on legal education to the ABA Section of Legal Education and Admissions to the Bar.

In general, the change would create a quantitative rule requiring law schools to demonstrate that 75% of their graduates passed the bar exam or to show that their pass rates were within a certain range compared with other law schools in the same jurisdiction. The change is technically a new interpretation of an existing accreditation standard. Almost all states require law students to graduate from an ABA-accredited law school in order to obtain a license to practice.

Under the current rule, the ABA does not require law schools to demonstrate a specific pass rate, but instead to show in general that they are preparing students for admission to the bar and maintaining a rigorous academic program.

Approving the change at this month’s meeting is particularly important because the ABA in June will go before the Department of Education, which will consider whether to renew its accrediting authority. The ABA House of Delegates will not meet again until August at its annual meeting.

The Department of Education declined to answer questions for this story.

The ABA and the Department of Education have butted heads in recent years. The department last year did not extend the ABA’s accrediting authority beyond June 2008, partly because of its concern about the ABA’s implementation of a stricter diversity-enrollment standard.

…At a hearing last month before the Accreditation Standards Review Committee about the change, several prominent lawyers and scholars expressed their disapproval. Among them was General Motors North America Vice President and General Counsel E. Christopher Johnson, who argued that a bright-line rule would hurt minority enrollment because it would deter law schools from accepting applicants with lower scores on the Law School Admission Test.

ERH posts on Volokh.com:

Here’s a short list from ILRG of schools that would fail the 75% test.

U. of Arkansas-Little Rock
Pepperdine University
U. of Wyoming
Loyola Law School
St. Mary’s University
U. of San Francisco
New York Law School
Willamette University
New England Sch. of Law
U. of California-Davis
West Virginia U.
Catholic U. of America
Pace University
Gonzaga University
Cleveland State U. (Marshall)
Appalachian School of Law
Thomas M. Cooley
U. of Denver
Hofstra University
U. of Nevada-Las Vegas
Syracuse University
U. of Detroit Mercy
Howard University
Duquesne University
Southwestern Univ.
Regent University
Widener University
Western New England
Touro College (Fuchsberg)
Vermont Law School
Santa Clara University
U. of Baltimore
U. of the Pacific (McGeorge)
Arizona State University
Nova Southeastern University
Texas Southern University
Northern Kentucky U. (Chase)
CUNY-Queens College
California Western
Franklin Pierce Law Center
Roger Williams University
Barry University
Chapman University
St. Thomas University
U. of the District of Columbia
Golden Gate University
Thomas Jefferson
Whittier Law School
Southern University
Western State University

Let’s face it, the ABA would be in court faster than you could say injunction if they tried to pulling these schools accreditation.

The Obromophile posts:

If you are feeling bored, the LSAC has a tool for determining likelihood of admission based upon UGPA and LSAT. With a 3.0 and a 142, there is about a 25% chance of admission at about two dozen schools. (To be terribly blunt, whether or not you are in that group depends upon your race.) Prof. Sander’s "Systematic Analysis" article includes race-based data for the UMich Law system. It is available here. To make your life really easy, the summary of the data is on pg. 39 of Acrobat Reader and pg. 405 of the law review article.

The data grid (LSAT/GPA, number applied, number admitted) by race is available here. UMich, in 1999, accepted 18 black students with LSATs of 153 or below. This is not some second-tier law school; it’s a top 10, without a doubt.

As to flunking people, you need to keep a 2.0 the first year to stay at our school so folks with too many D’s can flunk out.

A charming theory, except that most law schools do not give Ds. My law school publishes the percentile ranks and grade distributions. Even going back to the class of 2003, long before grade inflation, the bottom 5% of the class was in the 2.8 range. (Undergraduate grade inflation began to happen, incidentally, around the time that race-based preferences started to become popular.

Subprime Applicants posts to taxprof: "One should also take a glance at the 1L attrition rates for these schools (Whittier 50%!!!!!)…That these schools (under) achieve these rates consistently (for years) after weeding out 2/3 of their class by graduation is appalling…this is a social justice issue…anyone see an subprime analogy here? Get some teeth ABA!"

Law School Student posts: "This has been needed for a long time. A lot of the schools above are nothing but money machines for the professors who teach there. They really don’t care about the bar passage rates right now. It is unfortunate that the ABA allowed this scam to fester for so long. The ABA doesn’t really want to get rid of these money machines; they just want to do just enough to keep the Dept of Education off their back and nothing more. The ABA really needs to stop accrediting these fly-by-night diploma mills. The AMA limits the amount of medical schools in the country. The ABA could easily do this."