As Law Schools Struggle, Diversity Offers Opportunities

Michael Morgenstern for The Chronicle

February 10, 2014

Legal education has been ground zero for practically all of the major challenges facing higher education: rising tuition, rising student debt, a contracted job market, and resulting questions about the utility and value of the degree. Unsurprisingly, there has been a steady drumbeat of bad publicity that has exposed the sausage-making side of law schools to unprecedented scrutiny.

As a result, applications are down more than a third in just three years. First-year enrollments are at their lowest levels in almost 40 years and down 24 percent since the rec­ord high just three years ago. Moreover, declining Law School Admission Test registrations, a proverbial canary, suggest those enrollment trends have yet to bottom out.

That has led colleges to lay off faculty and staff members and to revisit pricing strategies; a few have even gone as far as lowering tuition to attract more students—an unthinkable move during the boom. But lost in the din of negativity is a milestone that deserves cautious celebration: Law schools, as a whole, are more racially and ethnically diverse than ever.

Today, students of color account for 26 percent of all law students. Ten years ago, the proportion was 21 percent; 40 years ago, it was 10 percent. Unsurprisingly, the rate of increase has been uneven. Forty years ago, Asians accounted for less than 1 percent of the nation’s law students; today, they account for 7 percent. The increase among Hispanic law students has been similarly striking, going from 1.7 percent 40 years ago to 8 percent today. Over the same time, the proportion of black students has gone from 5 percent to 7.5 percent.

The changing demographics of legal education are a welcome and necessary trend, even if most of the change is a result of fewer Asian and white students’ applying to law school. But the legal profession remains woefully unrepresentative of the population at large. Blacks and Hispanics account for about 30 percent of the population, but only 8.5 percent of lawyers. That proportion lags behind even the physicians’ ranks, in which blacks and Hispanics account for 12 percent. But today’s record proportion of black and Hispanic law students, while far below where it needs to be, is a tentative bright spot among all the unfavorable trends. That bright spot, however, could evolve into a dim reality if law schools do not adapt.

In their book The End of the Pipeline, the Pennsylvania State University professors Dorothy H. Evensen and Carla D. Pratt write about how the Socratic and case methods—pedagogical bastions of legal education—foster classroom environments that put students of color, women, and "nontraditional" students at a disadvantage. According to data from the Law School Survey of Student Engagement, students of color are less likely to report positive relationships with classmates; female students ask questions in class less frequently; and diverse perspectives are not as commonly expressed as we tend to believe.

To overcome those challenges, reformers have recommended a more seamless and intrusive integration of academic support services and other reforms, like adopting a problem-based approach to framing classroom discussions (as opposed to the venerable case method). Whatever the solution, schools must not miss this opportunity to assess the extent to which their programs aid the development of all students. The ends should be uniform, but the means must be flexible.

An assessment of admissions policies is also critical to the reform discussion. A threshold question is: Do we appreciate the extent of our obligations? When our new classes show up, we are not merely enrolling students; we are enrolling future professionals and leaders. Do our admissions policies and, more important, the qualities we seek in students reflect that long view? And, lastly, do our admissions policies serve equitable ends?

LSAT scores and undergraduate grades play major roles in determining which applicants gain admission to law school. While those indicators do have some value in predicting student success, the value is focused on the first year of law school, an important but nonetheless fleeting period of time. Those indicators have little to no value in predicting longer-term outcomes, like subsequent grades, bar passage, or professional success. Therefore, when one considers the larger purpose of legal education—to prepare students to be ethical professionals and leaders—the folly of undue reliance on the LSAT and undergraduate grades becomes apparent.

Marjorie M. Schultz and Sheldon Zedeck, two University of California at Berkeley professors, conducted a study in which they identified 26 skills that were important to lawyer effectiveness. The skills ranged from the abilities to write, speak, and listen effectively to the abilities to feel empathy for others and passion for one’s work. The professors found that the LSAT had very weak predictive value for 10 of the skills and no value at all for the other 16. Interestingly, two of the 10 correlations were negative—meaning, the higher the LSAT score, the less effective the lawyers in the study were at exhibiting the skills in question (in this case, networking and community service). Undergraduate GPA had even less predictive value across the 26 skills.

The authors identified a range of alternative assessments that were much more effective at predicting lawyer effectiveness—including an 80-question instrument that showed positive correlations with 24 of the 26 skills and a 72-question instrument that correlated with 23. Those correlations tended to be weak, but they also tended to be stronger than the LSAT and undergraduate GPA. Moreover, unlike the LSAT and undergraduate GPA, those assessments had very little deleterious racial or ethnic impact. In other words, the assessments were better at predicting lawyer effectiveness and did so in a more responsible and equitable manner. Those findings are yet more proof of the value of truly holistic admissions policies that serve the larger purpose of legal education.

And all of this comes back to the record proportions of students of color. Much of the rhetoric about the trend has been decidedly negative. A popular narrative seems to be that entering cohorts are weaker over all. Bolstering that assertion are large drops in high LSAT scorers—a trend that makes sense, given that whites and Asians tend to score highest on the test. Another thread to the commentary is that the increased diversity is being driven by weak, desperate law schools that are enrolling weak, desperate students in order to fill seats in a declining market.

While I believe those assertions are rooted in the type of elitism that stifles innovation and progress, law schools must be mindful of the stakes involved when they make an offer of admission. Long gone are the sink-or-swim days when orientation rituals included a directive to "look left and right" to observe future academic casualties. Law schools must take ownership of their students’ success. Now when an orientation speaker asks new law students to scan the room, it must be to prompt them to take note of their future colleagues. That is why we cannot ignore the imperatives presented by the difficult times we face. Our changing students, profession, and society require us to seize the opportunities in this crisis.

Aaron N. Taylor is an assistant professor in the School of Law at Saint Louis University and director of the Law School Survey of Student Engagement.