Wednesday, January 17, 2007

More on the ABA's Diversity Standards for Law School Accredition: Case Study # 1
Gail Heriot

Loyal Right Coast readers may recall the posts I did back in March about the new ABA accreditation standards for law schools on diversity.  If not, take a look.  (David Bernstein has also published extensively on the subject at the Volokh Conspriracy and in the Wall Street Journal.)

Since then, in an effort to learn how the ABA has applied its diversity requirements in the past (as well as learn a little bit about how law school themselve influence the racial composition of their classes), I've been working on a Freedom of Information Act project.  Working with the Center for Equal Opportunity, I sent FOIA requests to all the public law schools in the country, requesting them to provide copies of a number of documents that they routinely receive from the ABA in connection with the re-accreditation process. 

I plan to post on three of the more interesting cases we've run across so far.  This is one of them:

1.  (I'm not sure if any important purpose is served by maintaining the anonymity of law schools, but I'm going to do it here anyway.)  Law School #1 is a state law school in California.  As such, since 1997, it has been governed by Proposition 209, which prohibits the state from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin.

Law School #1 had a site visit from the ABA in 1999.  The site evaluation team report stated:

"The Self Study notes the difficult challenge to maintaining student diversity due, in part, to the intense competition for students, limited resources to fund scholarships that attract top students, and political and legal obstacles, i.e. Proposition 209.  Despite these challenges, the percentage of students of color has remained relatively constant, with the most recent statistics noting a modest increase."

The report noted that "[s]tudents of color make up 30.4% of [the school's] student body," but that the number of African American students specifically was on the decline.  While 4.2% of the third-year class and 5.9% of the second-year class was African American, only 1.9% of the first-year class was. (This is despite the fact that the ban on preferential treatment was in effect all three years.  The report does not speculate on the cause for this).

According the the report, the Law School credited its special program for the disadvantaged for maintaining its level of racial diversity.  "Eligibility for [this] program is not premised on race or gender, but upon criteria related to economic, social, or educational disparity, LSAT scores and the students' cumulative GPA," the report stated.  No data on the racial breakdown of the disadvantaged group was given; the report stated simply that 20% of the seats in the class were reserved for students admitted under the disadvantaged program.

It's not possible to deduce from the report the level of preferential treatment given to the disadvantaged under the program.  It stated that the disadvantaged class for 1998 had a median LSAT of 153 and a median undergraduate GPA of 3.28.  For some reason, however, the entering credentials for the class as a whole were not expressed in terms of medians.  Rather the figures were given in terms of the 75th percentile and hence are not comparable.

The report does note that the Law School's overall first-time taker California bar passage rate in July 1997 was 92%, while its equivalent rate for disadvantaged students was 76.5%.  Of course, this understates the gap somewhat, since disadvantaged students are included in the overall rate.  If you assume that disadvantaged students were 20% of the group, the gap between the groups would be almost 20 points--95.8% (non-disadvantaged) and 76.5% (disadvantaged).

The most interesting part of the report comes in the summary:

"The school's commitment to being a diverse community has been given expression in both the student population, thanks to the [program for disadvantaged students], and in the makeup of the faculty.  The adoption of an anti-affirmative action posture by the Regents of the University of California, reinforced by success of Proposition 209 with the California electorate poses very real issues for maintaining a diverse student body.  Although persons of color make up 30.4% of the student body, the most recent entering class showed a dramatic decline in the number of African-Americans.  Given the school's traditions and aspirations it may be essential to reconsider the level of risk it is willing to bear to achieve a larger representation of this traditionally underrepresented group."  [Italics added.]

Just what did the site evaluation team mean when it stated that "it may be essential to reconsider the level of risk it is willing to bear"?  I am open to other possibilities, but right now I can imagine only two, and they are both bad:

a.  I am not convinced of it myself, but one possibility that has been suggested to be by others is that the team is suggesting that the Law School should consider breaking California law. Obviously, if that is the correct interpretation of the suggestion, it reflects very poorly on the ABA.

b.  Unfortunately for the ABA, the other interpretation is not much better.  Perhaps the site evaluation team was simply suggesting that Law School #1 should reconsider the level of academic risk it is willing to take with its African American candidates.  Put differently, it may be necessary for Law School #1 to reconsider the level of preferential treatment it is willing to extend to African Americans--to take greater chances with students with lower undergraduate GPAs and LSATs.  The problem is that any level of preferential treatment based on race is outlawed by Proposition 209.  The school is flatly prohibited from taking such "risks."

A slight variation on this might be a suggestion that the Law School should reconsider the level of academic risk it is willing to undertake with its disadvantaged candidates as a way of increasing its African American student count.  But again this would be a violation of the law, since it would be done specifically to increase the number of a particular racial group.

See Case Study #2 and Case Study #3.

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Gail Heriot


A third interpretation of the "level of risk" that the school is willing to bear is also possible. The ABA could be telling the school to consider how far it is willing to risk having the ABA withdraw accreditation for failure to maintain sufficient "diversity." This possible interpretation, if correct, would also be bad.

Posted by: Alec Rawls | Jan 18, 2007 3:30:29 PM

After reading these three case studies, I am shocked. What the ABA is doing regarding diversity and accreditation is incredibly unfair. And the statement regarding "level of risk" is beyond the pale.

Posted by: David | Jan 18, 2007 10:15:54 PM