Questioning the status quo on law school diversity

I recently conducted an analysis of first-year law student enrollment trends at 196 law schools in the academic years of 2010-11 and 2013-14.  I found that while the proportions of black and Hispanic law students increased overall, these increases were driven by schools with the lowest LSAT medians. In my discussion of the data, I questioned why the most selective law schools were not doing more to encourage diversity in legal education and the profession.  
 
On cue, the defenders of the status quo pounced. How dare someone question the priorities of some of our most prominent institutions? How dare someone question prevailing notions of merit? Moreover, how dare someone pose these questions while heaping tentative praise on lesser-regarded institutions that have made diversity a priority?  
 
The responses were not surprising. Legal education has never been a bastion of inclusion; it was never intended to be. Our narrow conceptions of merit ensure that admissions processes at the most selective law schools will continue to be “social engineering to preserve the elites.”  Anyone who questions the status quo must be misguided. The system is sacrosanct. The responses actually confirmed what has long been obvious to me — diversity is much more palatable as an ideal (a marketing pitch, even) than a reality.
 
My primary motivation for conducting the analysis was the oft-espoused accusation that some law schools had resorted to exploiting unqualified students for tuition revenue. The most cited supporting evidence are Law School Admission Test (LSAT) scores that have dipped significantly at some schools. In effect, I was looking for patterns, and without rehashing the full analysis, I found some pretty obvious ones. In addition to finding that the proportional increases in black and Hispanic students were driven by schools with the lowest LSAT scores, I also found that while the actual number of black first-year students decreased 5.9 percent overall, it increased 6.6 percent among the lowest-median schools. Similarly, Hispanic first-year enrollment increased 8.1 percent among the lowest-median schools while remaining essentially unchanged overall.
 
Time may eventually tell us the motivation behind these increases — and I am sure there will be ample scorn and indignation heaped on any offenders. But why is our scrutiny pointed in just one direction? Rather than just asking why some schools are enrolling more black and Hispanic students, we should also ask why others are not doing the same.
 
The legal profession is woefully lacking in diversity. This is not accidental. Current demographics of the legal profession can be tied to a long history of exclusion. For decades, legal education and the profession were effectively closed, by law and practice, to people of color. With changing laws and attitudes came more law students and lawyers of color, but the profound legacy of the period of formal exclusion is still apparent today. Now, exclusion has taken on different forms, namely, a faithful reliance on a limited range of admissions factors that have been shown to severely diminish the prospects of applicants from underrepresented and disadvantaged groups. Looming largest, of course, is the LSAT.
 
The LSAT is designed to be a partial and rather crude predictor of first-year law school performance. But for many people, including some who should know better, the score is a finely-tuned reflection of destiny. Even the smallest score differences are often deemed consequential, in defiance of statistical principles. Unfortunately, the LSAT is not the only factor that is misused in ways that encourage exclusion. The significance of other factors, such as an applicant’s connections, his alma mater, even his parents’ alma maters, is exaggerated in un-meritocratic fashion. This type of lazy and unquestioned reliance on narrow and often illegitimate factors is dangerous. It fosters a system in which wealth and opportunity become synonymous with merit — classic social engineering to preserve the elites.  
 
In my analysis, I identified trends of racial stratification that illustrate the effects of exclusionary admissions policies. Black and Hispanic students were less likely to attend highly selective law schools in 2013 than in 2010; white and Asian students were more likely. These trends are concerning because this country’s leaders are disproportionately selected from these schools — a trend symptomatic of our obsession with advantaging the advantaged. And embedded in all of this is a frustrating irony where the schools that are arguably best positioned to lead diversity efforts are doing the least to foster it. As critics of my viewpoint are sure to point out, these schools boast the best student outcomes and have immense resources. But to what good are these advantages serving, other than a favorable US News ranking?  
  
The merit-based rationalizations used to preserve traditions of exclusion in legal education are becoming increasingly untenable. In short, the status quo is unsustainable. So as we are questioning motives relating to law school diversity, let us make sure our scrutiny flows in all directions.
 
Aaron N. Taylor is an assistant professor at Saint Louis University School of Law and director of the Law School Survey of Student Engagement.
 
 
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