Letter on ABA Proposal for "Diversifying" Law Schools

Signed by Richard Peltz-Steele (Massachusetts), Richard Sander (UCLA), Robert Steinbuch (Arkansas-Little Rock), and me.

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I thought I'd pass this along; you can also see the PDF:

Last month, the ABA's Council of the Section of Legal Education and Admissions to the Bar approved for Notice and Comment proposed revisions to Standards 205, 206, 303, 507, and 508 of the ABA Standards and Rules of Procedure for Approval of Law Schools. The revisions to Rule 206 would significantly alter the responsibilities of law schools to achieve "diverse" and "equitable" environments. In response to your solicitation of comments, we offer the following:

[1.] The proposed Rule 206(b) provides that "a law school shall take effective actions that, in their totality, demonstrate progress in diversifying the student body, faculty, and staff…." There appear to be no exceptions, indicating that the language requires that all law schools must demonstrate progress.

"Diversifying," to judge from the annotations to the rule, means "adding people of color" (not "minorities," which the annotations say is an outdated term). Yet "progress" is nowhere defined; indeed, there is not even a hint of what it means to fully satisfy this standard. According to the ABA's own website, which reports the proportion of first-year law students in 2020-21 who are "minorities" (we assume this means "people of color"), the makeup of the 197 ABA-accredited law schools ranges from 8% "minority" to 100% "minority." According to the ABA data, minorities make up more than 90% of students at four schools, and more than half the students at 24 schools. Presumably, these schools are also mandated to achieve greater diversity; does that mean they must find ways to enroll more whites?

If there is an implicit goal, is it the same nationwide, or does it depend on the demographics of a school's region? Any useful effort to create usable guidance to law schools must, at a minimum, address these and other similar questions. The standard, as written, is so vague that it will give enormous discretion to ABA accreditation committees to exert arbitrary control over important and sensitive policy issues.

The proposal fails to account for the fact that among the current population of law school applicants, there are very large disparities in credentials that correlate with race. For example, among all students taking the LSAT, there is about a 1.0 standard deviation gap between the mean score of white takers and the mean score of black takers. The white-black gap in college grades is smaller but still very large (about .8 standard deviations). It is difficult to argue that either of these credentials is discriminatory, since they are predictive of law school grades and subsequent bar performance, and their predictions are as valid for blacks as for whites. Indeed, to the extent there is a debate over the relationship between black credentials and black law school performance, it is whether LSAT scores and college grades overpredict law school performance.

The large credential gap means, of course, that law schools have resorted to large racial preferences as the main method of increasing the numbers of enrolled blacks, Hispanics, and American Indians. The best data we have on this come from admission records released in 2007-08 by 41 public law schools in the U.S., which in the aggregate show that roughly 60% of blacks entering these law schools had academic credentials that were at least a standard deviation below those of their median classmate. (This was also true for about 30% of Hispanic first-years, compared to about 6% of Asian-American students and 4% of whites.) A major failing of the proposed Rule, therefore, is that since it provides no guidance on how the existing pool of law school applicants can be meaningfully expanded, it necessarily implies that greater "diversity" should be achieved by using even more aggressive racial preferences.

[2.] The proposed Interpretation 206-2 asserts that "the enrollment of a diverse student body has been proven to improve the quality of the educational environment for all students" but cites no evidence to this effect. So far as we are aware, no one has even attempted to study, in a scientifically credible way, the effect of diversity on legal education quality or outcomes.

Careful studies have been done at the undergraduate level, but these studies come to very different conclusions. Importantly, the leading studies that find positive educational benefits from diversity (notably, those by Patricia Gurin and her colleagues) do not take into account how those benefits are affected when schools use large racial preferences to achieve diversity (as nearly all law schools do). The research that does take large preferences into account (such as the work of Arcidiacono et al. at Duke, or the work of Carrell et al. at the Air Force Academy) finds that large preferences can directly undermine the goals of a diverse environment and increase racial segregation and isolation. There is also, of course, the very real danger that if race correlates very highly with class performance — an outcome difficult if not impossible to avoid if large racial preferences are used — then the single-minded pursuit of diversity will create, rather than erode, racial stereotypes.

[3.] The proposed Rule and accompanying interpretations conspicuously ignore the likelihood of "mismatch" — that is, the potential harmful effects of very large preferences upon the intended beneficiaries (in terms of law school grades, bar passage, and long-term outcomes). In 2007, the U.S. Commission on Civil Rights issued a lengthy report on law school mismatch, finding grave cause for concern and urging further investigation, but the ABA has never taken up this question. This inaction persists despite the fact that the Journal of Legal Education recently accepted for publication a new empirical study showing compelling evidence that law school mismatch has large, negative effects upon bar passage. [Richard Sander and Robert Steinbuch, Mismatch and Bar Passage: A School-Specific Analysis (2020).]

There is heavy attrition of students admitted with large preferences, first in terms of graduation from law school and second in terms of passing state bar exams, and this is at least arguably the major reason the legal profession remains as predominantly white as it still is. The committee's proposal not only ignores this fundamental problem, but creates pressure on schools to worsen it.

[4.] Finally, the proposed Interpretation 206-1 states that "The requirement of a constitutional provision or statute that purports to prohibit consideration of race, color, ethnicity … in admissions or employment decisions is not a justification for a school's non-compliance with Standard 206 …. [Such a school must] demonstrate the effective actions and progress required by Standard 206 by means other than those prohibited by the applicable constitutional or statutory provisions." Setting aside the problem noted earlier — that "effective actions and progress" are nowhere defined — the predominant method that schools have used to increase the number of enrolling members of underrepresented racial groups is the use of ever-larger admissions preferences.

Case law in the states that have prohibited the use of race-based preferences makes clear — not surprisingly — that such preferences do, in fact, violate the law. In the absence of any explanation or documentation of other, proven methods by which schools can make "progress," the proposed standard places these schools in an impossible bind — violate the law and the civil rights of applicants, or risk losing accreditation. Putting schools in this impossible bind would be an abuse of the ABA's professional responsibility as an accreditor.

NEXT: And then there were 2

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  1. Oh, what a tangled web we weave when first we practice to deceive.

    1. There is a problem with the “colored” designation. Very dark skinned African immigrants outperformed whites in the 2010 Census. They are now stereotyped as the New Koreans. They have intact patriarchal families, are Christians, and love America. They support Trump.

      I propose a different basis for privileging losers. Bastardy. That explains all racial disparities in social pathology.

      1. Say the value of a lawyer is equal to the pay of a lawyer. Weren’t all the lawyer billionaires C students, who barely passed the bar exam? The most brilliant straight A students end up as worthless rent seeking academics and judges, causing untold damage to the nation. They are toxic garbage that should be thrown out and dumped on Venezuela, another overlawyered failed state. The test scores are excellent predictors of that.

  2. It’s an instinct among some folks to add “statistics prove” or similar fabricated words to a sentence to make it sound smarter. Because the assertion is so obviously correct there must be statistics to prove it.

    1. Statistics prove, people enter law school with a high IQ and good morals. They come out stupider than kids in Life Skills class learning to eat with a spoon, and total prostitute and hooers.

  3. I predict “progress” will be defined however Ivy League law schools demand it to be defined.

  4. Don’t be silly… Don’t you know that 68% of Princeton’s current incoming Freshman Class identifies as a person of color.

    https://www.princeton.edu/news/2021/04/06/extraordinary-year-princeton-offers-admission-1498-students-class-2025#:~:text=68%25%20of%20U.S.%20citizens%20or,identify%20as%20people%20of%20color.

    You know, I think I might be a person of color to. Pinkish-tan is a color, right?

    1. This is the result of Republicans opposing affirmative action. Affirmative action is inconsequential because HBCUs exist AND, due to de facto segregation and suboptimal high schools, there simply aren’t enough descendants of American slaves that can hack it at Ivy League colleges and state flagship STEM programs. So liberals created “diversity” in order to give children of recent immigrants of color into top programs…which harms whites and descendants of American slaves.

      1. “This is the result of Republicans opposing affirmative action”

        Really…..

      2. ” This is the result of Republicans opposing affirmative action. ”

        Republicans favor affirmative action for Republican professors and Republican students. Just check Heterodox Academy, or those who complain that strong institutions don’t follow the lead of weak institutions when it comes to hiring, admitting, and flattering more right-wingers.

    2. You do not get to define me. Stay in your lane. I identify as rich. Y’all need to send me money to respect my identity.

  5. If diversity is a high value, independent of its use as crypto affirmative action, and is good in and of itself (and so gets Supreme Court stamp of approval) then as the years go buy, its benefits should become statistically apparent.

    For the record, I don’t care. I just wish we’d have stuck with affirmative action as a label to address past issues instead of this Emperor’s New Clothes’ “You can see the value of diversity, right? Only the stupid and crude cannot!”

    I am prepared to be wrong about my assumption. Unlike everyone else on both sides, who desperately want reality to be their way. I want the best possible rates of development, as death remains the main problem of everybody. If diversity helps, now or downstream, yay! If not, enjoy your theater.

    By the way, this is the early stages of borgification of humanity. One need lot have literal brain implants transiting data around before a handful of queens direct the drone masses to execute those whose “borgification” does not take.

    1. This was meant to be in reply to the statement about study proveout of the value of diversity-qua-benefits to society as better product and development. But, you know, error, back arrow, forward arrow, box text preserved but reply moved to end of thread instead of proper reply position.

  6. “Diversity is good” is a principle widely held with absolutely no evidence to back it up.

    1. What about Heterodox Academy-style diversity?

      1. What about Heterodox Academy-style diversity?

        Yes, viewpoint diversity. That would give true diversity, and would not be illegal.

        1. So diversity bad when you’re talking about race, but good when you’re talking about conservativism.

          You do realize how that sounds, right?

          1. That’s not what the man said. He’s saying that when shopping in the marketplace of ideas it’s nice to have a wide array of choices. Like when you go to the store for ice cream, it’s nice to have 47 flavors to choose from. Having all the cartons be just one flavor isn’t good, even if the cartons come in a dazzling rainbow of different colors.

            Unless you are someone who only cares what the carton looks like, instead of what’s in it.

            1. Conservatism is shit-flavored ice cream in that story.

            2. So he’s against diversity based on inherent characteristics like race, but for it based on mutable characteristics like viewpoint.

              I’m all for viewpoint diversity, but it’s quite a self-serving double standard to say more conservative voices, screw black/Latin voices.

              1. Well, imagine you have a choice of going to two dinner parties.

                For the first one, the host says ‘I have carefully chosen people who are A)in complete agreement that the Dodgers are the best team ever, and will spend the evening reinforcing each other about that and B)have been picked so that their A/B/O blood type distribution exactly mirrors the national distribution’.

                For the second, the host says ‘I have this eclectic group of people, from a wide range of backgrounds, and interesting opinions and experiences’. So I say ‘but those are mutable – what about blood type?’. And he answers ‘haven’t a clue’.

                I’m going to go to the second party.

                I’m an old fart – old enough to remember when thinking the cops shouldn’t be raiding gay bars or not thinking watermelon jokes were funny were minority opinions. Even back then, I just didn’t care what people’s skin color or bedroom habits were – I cared about the person inside. What you call immutable I mostly viewed – and view – as superficial.

                And a few decades pass, and now once again people want me to focus on skin color/bedroom habits/whatever. No thanks – I still prefer to care about the people within – what you might call ‘the content of their character’. I took heat for that then, and I guess I’ll take heat for it now.

              2. So he’s against diversity based on inherent characteristics like race, but for it based on mutable characteristics like viewpoint.

                I’m all for viewpoint diversity, but it’s quite a self-serving double standard to say more conservative voices, screw black/Latin voices.

                “I’m not racist, I just value people based entirely on skin color.”

              3. I’m all for viewpoint diversity, but it’s quite a self-serving double standard to say more conservative voices, screw black/Latin voices.

                Is there a “black voice”? How does that avoid being a racist concept? Do people like Thomas Sowell and Glenn Loury espouse the black voice?

          2. So diversity bad when you’re talking about race, but good when you’re talking about conservativism.

            You do realize how that sounds, right?

            “Diversity is good, but only if you hold the same opinions as me.”

  7. This was an interesting note. I don’t doubt that the ABA has some good intentions, but their approach here seems to suffer from some serious flaws, as the note above observes. I’m most troubled by the facile suggestion that law schools in states prohibiting race-based preferences simply proceed to achieve diversity through race-neutral means.

    Isn’t that what everyone should be doing already? Assuming for the moment that diversity is a compelling governmental interest, doesn’t strict scrutiny under the 14th amendment require that race-neutral means be exhausted before race-based preferences are permissible?

    1. I’m most troubled by the facile suggestion that law schools in states prohibiting race-based preferences simply proceed to achieve diversity through race-neutral means.

      But without suggesting what those other race-neutral means might be, yet still making accreditation contingent on achieving the goal.

    2. Good intentions for some value of “good”, anyway. Constitutional intentions? That’s somewhat more dubious.

      Realistically, ‘diversity’ was invented as an excuse to continue racial preferences in perpetuity, after the race hucksters were notified that their existing excuses for racial preferences had a sell by date. If it were really about diversity, as such, the ‘diversity’ would demand replicating population percentages.

  8. Well, the most obvious one, easily achieved, is an immediate and dramatic lowering of admissions qualifications (perhaps combined with some type of lottery for admitted applicants). I can’t imagine the ABA will be advocating that–but at least it would be intellectually honest.

    It’s also pretty ironic to note that losing ABA accreditation may also prove to be a remarkably effective race-neutral means of achieving greater diversity. I don’t think that’s what they have in mind either!

    1. No no no. The ABA is asking for every school to open a separate, but equal, but easier, division for the people of color. All of the opportunities and cachet of a top-tier school, and none of that ewwy racist competing-with-more-intelligent-peers nonsense.

  9. The letter makes the points that affirmative action (a) does not result in cross-racial social interaction between those granted affirmative action entry and the other students, (b) has a large negative effect on both graduation and bar passage of those granted affirmative action entry, and (c) if because of affirmative action race correlates highly with class performance, the result could be to create or inflame racial stereotypes.

    What affirmative action does is stigmatize every person eligible for affirmative action. Nobody will ever know if a person was accepted purely on merit. Furthermore, it stigmatizes an entire race, saying that they can’t compete on a level playing field. If systemic racism is to blame for low black LSAT scores then let’s correct that. People need to list the steps in order to do that, but I’ve never seen such a list. “Equity” is never going to be accepted as the solution, if that means ignoring the cause and mandating a racially appropriate result. By getting rid of affirmative action at least we give people back their dignity.

  10. After Prop 209 in California, banning affirmative action, graduation rates of minorities increased by 4.4%. The effect on STEM majors was particularly noticeable. According to one study:

    Using data on the University of California system, we show significant sorting into majors based on academic credentials, with science majors at each school having on average stronger credentials than their non-science counterparts. We show that students with relatively weak academic credentials are significantly more likely to leave the sciences and take longer to graduate if they attend one of the top-tier UC schools. This was particularly true for minority students before the passage of Proposition 209, which banned the use of racial preferences in admissions. We show that one of the effects of Proposition 209 was to increase persistence in the sciences through allocating minority students to schools where their credentials were a better match with the school they were attending. We also show that UC schools responded to Proposition 209 in such a way that those with weaker credentials were more likely to graduate.

  11. Define legacy admissions as people of color. Problem solved.

    1. For some reason the link that was supposed to go with that was dropped. Let’s try again: link

      1. But if universities stop giving a preference to children or grandchildren of alumni how do they avoid a crash in the alumni donations?

        1. Do you think Harvard, Yale, Princeton, Stanford, or any other university with a multi-billion dollar endowment etc needs another penny, ever, from alumni or anyone else?

  12. Interesting. We can always tell who the affirmative action kids are in school already. Not going to end well.

    1. How badly did it end for Clarence Thomas?

      1. In his memoir and in interviews Thomas argued that what he called the stigmatizing effects of affirmative action put him at a huge disadvantage when he was trying to find work as a lawyer. He said that the prestigious law forms didn’t take him seriously because they thought he got special treatment, asking questions that suggested that they doubted he was as smart as his grades indicated.

        Of course, to the extent we say that his career benefited greatly from affirmative action, we are denying him the honor of the positions he held, which is one of the principle drawbacks of affirmative action. Those merely eligible for it are stigmatized and are unable to establish that they merited their achievements as much as those not eligible for it.

        Affirmative action is like a pair of golden handcuffs. They provide the indicia of success but without the respect that should go along with it. “Oh yea, he reached that position but he didn’t earn it fair and square, like the others.”

        1. The dude admitted affirmative action helped him get into YLS, and he ended up a Justice on the Supreme Court. You have to strain pretty hard to say he didn’t get at least everything he would have without affirmative action, and very possibly much, much more.

  13. Wouldn’t it just be easier to write, “we think white guilt compels us to give free stuff to people of other races…” and at least be honest about the whole situation.

  14. Did you notice that CLEA advocated antiracism across the curriculum in its comment? This goes much further than the ABA proposal. Antiracism includes antiracist discrimination–present discrimination to make up for past discrimination.

    1. Antiracism includes antiracist discrimination–present discrimination to make up for past discrimination.

      According to whose definition?

  15. It’s interesting that there are no comments here defending affirmative action or even taking issue with any of the criticisms of it.

  16. But wait, the letter above says that impossible demands are made on a school by the proposed rule, and that “‘effective actions and progress’ are nowhere defined.” When when one actually reads the actual proposal, though, it turns out that “effective action and progress toward diversifying the student body” has been defined in Interpretation 206-3 as merely setting goals and making efforts at outreach. So why all the fuss? Did the signatories of this letter actually read the proposal?

    Interpretation 206-3 Effective actions and progress towards diversifying the student body may include, but are not limited to, the following activities:

    (1) Setting and publishing goals related to diversity and inclusion including threshold data disaggregated by race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, or military status and tracking and reporting progress in meeting those goals over a period of years (i.e., three years);
    (2) Adopting and using pipeline programs to facilitate the recruitment, preparation, and enrollment of students from underrepresented groups;
    (3) Designing recruitment outreach for prospective students from underrepresented groups;
    (4) Initiatives designed to attract and matriculate students from underrepresented groups; and
    (5) Providing need-based or diversity scholarships to students. The determination of a law school’s satisfaction of such obligations is based on the totality of the law school’s actions and results achieved.

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