Deans, Professors Ponder Reasons For Decline in Minority EnrollmentWilliam Treanor in The New York Law Journal, November 14, 2008
The controversy surrounding Columbia Law School's documentation of a "disturbing" decline in enrollment of minority students at law campuses around the country has deans and professors in New York state discussing a perceived cultural bias in the LSAT examination, combined with the test's exaggerated importance as an element of the annual rankings of their institutions by U.S. News & World Report.
Although LSAT scores have actually trended upward during the past 15 years, according to the report, many in the New York legal academy contend that informal "cut-off" numbers set by law schools have simultaneously risen - as a means of gaming the U.S. News rankings to their competitive marketing advantage.
No one is more vociferous on the topic than Professor Douglas D. Scherer, director of the Legal Education Access Program at Touro Law Center, who said dependence on higher LSAT scores "demonstrates crass hypocrisy with regard to the expressed commitment to diversity" because the standardized test "has very little predictive capability" in forecasting students' eventual success as students and practitioners, and therefore serves merely to "weed out" blacks, Latinos and other minorities presumed to be unprepared for the rigors of legal education.
"This is an outrageous form of institutional discrimination," Mr. Scherer said in an interview. "If this were done in the employment area, you'd see disparate impact lawsuits."
The Columbia Law study was released in January in conjunction with the Society of American Law Teachers. It found that although black and Chicano students have applied to law schools in relatively constant numbers over the past 15 years, their representation in law schools has fallen. The study concluded:
Even more worrisome is the fact that during the same period, African American and Mexican American applicants are doing better than ever on . . . undergraduate grade point average and LSAT scores. In addition, the size of law school classes and the total number of law schools have increased, making room for nearly 4,000 more students.
Despite all that, first-year [minority] enrollment has declined 8.6 percent, from a combined 3,937 in 1992 to 3,595 in 2005.
The decline comes at a time when most law campuses in the country, and all 15 in New York, offer some combination of scholarship programs and pre-law preparation courses for minority candidates, who tend to come from low-income families; when bar groups and private law firms offer the same, along with internships; and as a black constitutional law professor and his family prepare to take up residence at the White House.
"I'm not sure why we're seeing this decline, but it's very much a troubling reality," said William Treanor, dean of Fordham University School of Law. "Is law not seen as an attractive career? Are the barriers to success too high?"
He added, "It may be the case that some law schools' decline can be traced to a focus on the [U.S. News & World Report] rankings, but I do think most schools are more concerned with their fundamental mission."
Like other campuses, Fordham Law has initiated three "pipeline" programs to ensure future pools of minority candidates. On Nov. 1, for example, Fordham Law hosted a day-long schedule of workshops in partnership with the Council of Legal Education, providing minority college undergraduates with counsel on LSAT preparation and general advice on pursuing a legal career.
Mr. Treanor said the Nov. 4 election of Barack Obama will prove "inspiring" to future minority applicants who will "see the legal profession as a place where their talents will flourish and thrive."
But Mr. Scherer maintained that inspiration was no substitute for wholesale change, which he said would only come about with devaluation of both the LSAT and the U.S. News "rankings game," as Mr. Treanor termed it.
Mr. Scherer's view is supported - less forcefully, in whole or in part - by Professors Leonard M. Baynes and Victor Goode of St. John's University School of Law and the City University of New York School of Law, respectively, and Dean Richard A. Matasar of New York Law School.
"There is a lot of risk aversion in American law schools," said Mr. Matasar, who acknowledged the steady decline. "Schools are much more reticent to take chances for two reasons: fear of the U.S. News rankings and fear of taking more marginal students who might risk the school's bar exam pass rate."
Applicants to law schools certified by the American Bar Association take the half-day Law School Admission Test, a standardized exam developed by the Law School Admission Council to measure reading and verbal reasoning skills.
The LSAT, essentially unchanged since 1971, is sometimes accused of cultural bias that, while unintended, might place minority applicants at disadvantage. Critics contend that in terms of general knowledge, what is common ground for majority white candidates may not be seen as familiar to blacks, for instance.
From the Web site www.testpreppreview.com, possible culturally biased propositions that form the bases for questions from past LSAT exams include:
• When the goalie has been chosen, the Smalltown Bluebirds hockey team has a starting lineup that is selected from two groups;
• One of the most intriguing stories of the Russian Revolution concerns the identity of Anastasia, the youngest daughter of Czar Nicholas II. . . . On July 17 or 18, [Bolshevik revolutionaries] murdered the Czar and what was thought to be his entire family. . . . [T]here were rumors suggesting that Anastasia had survived . . . . [The] search to establish her identity has been the subject of numerous books, plays, and movies;
• Never again will you have to pay high prices for imported spring water. It is now bottled locally and inexpensively. You'll never taste the difference . . . . [H]owever, if you're likely to be embarrassed to serve domestic spring water, simply serve it in a leaded crystal decanter;
• The village of Vestmannaeyjar, in the far northern country of Iceland, is as bright and clean and up-to-date as any American or Canadian suburb. It is located on the island of Heimaey, just off the mainland. One January night in 1973 . . . in some backyards red-hot liquid was spurting from the ground. . . . The island's volcano, Helgafell, silent for 7,000 years, was violently erupting!Mr. Matasar differed with Mr. Scherer, however, on the notion of bias in the LSAT that would favor whites. He suggested that improvements made in the past few years have made the exam more culturally neutral than it was on its inception in 1971.
Meanwhile, said Mr. Goode, the "LSAT wars" continue, with law schools establishing ever-increasing and mostly unstated applicant cutoff scores, which range from 120 points to 180. He and others say applicants who fail to achieve a score of 150 have virtually no chance of entering any of the state's 15 law schools.
"Playing it safe, so to speak, means offering admission to the same handful of African-American or Latino students that every other law school is after," said Mr. Goode. "That way, a school can say, 'See, we tried.'"
Asked his reaction to Mr. Scherer's contention of institutional discrimination as a cause of declining minority enrollment, Mr. Goode said, "I could second that opinion."
Mr. Baynes, too, said academia's "search for higher and higher LSAT scores" has caused many campuses "a loss of their commitment to diversity." Research that he intends to publish in the near future, said Mr. Baynes, shows a "drastic" drop in minority enrollment in New York state law campuses. He said blacks constitute only 6 percent of the law school student body in the state, a decline of 20 percent. He said Puerto Ricans, the largest Latino group in New York, constitute just 1 percent of New York law students.
While LSATs have "some correlation" to academic success, said Mr. Baynes, they do not predict "total correlation to performance." Beyond that, he added, "Many schools are not using the LSAT properly" by ignoring the clearly stated plus/minus factor of three points.
Such neglect, said Mr. Baynes, is "probably discriminatory."
Mr. Goode and Michelle J. Anderson, dean of CUNY Law, note that money is likely to be at the root of the decline in minority enrollment.
"You can't discount that reality," Ms. Anderson said of the troubled economic times. "African-American and Latino students down the pipeline are assessing whether it makes sense to go to law school."
"If you come from a low-income background and have already taken out hefty loans just to get through your undergraduate studies and you're now looking at another $70,000 or $80,000 in law school debt," said Mr. Goode, "you may realize that there's simply no way to pay the money back unless you're absolutely guaranteed one of those big salaries at a major law firm."
The cost factor inordinately affects potential minority applicants to Syracuse University College of Law, according to Cheryl A. Ficarra, the school's associate dean for enrollment and chief financial officer. That and what Ms. Ficarra calls the "trickle up" effect of declining numbers of minority students at many law campuses, especially those in the lower tiers.
Echoing Mr. Goode's opinion, Ms. Ficarra said minority applicants "are getting offers from schools considered more prestigious than Syracuse," although her own campus has seen only a "small decrease" in black enrollment over the past eight years and a "slight increase" in overall minority enrollment in the past two years.
The situation remains "very frustrating, very disappointing and very perplexing," Ms. Ficarra said.
Meanwhile, according to Ms. Anderson and Mr. Scherer, it falls to campus-based pipeline programs to make a dent in what Ms. Anderson calls "understandable discouragement in communities of color" that law schools are clearly becoming less diverse, perhaps guaranteeing for another entire generation that the U.S. legal profession will stand at 90 percent white, a figure cited by the Columbia Law study.
Mr. Scherer's effort at Touro Law - the Legal Education Access Program - provides four weeks of summer workshops for its entering minority students. The program, which is free of charge, provides academic guidance and help in overcoming "subtle barriers" to navigating a majority white environment, following up with mentorship during the academic year.
Ms. Anderson has overseen three major initiatives since becoming dean of CUNY Law two years ago: the Pipeline to Justice program for students whose standardized test scores do not match what faculty sees as good potential; the Center for Diversity in the Profession, established this spring and directed by Professor Pamela Edwards; and the Center on Latino Rights and Equality, established this fall and directed by Professor Jenny Rivera, who returned to the faculty in September after a stint as special deputy attorney general for civil rights.
Biased or no, Mr. Baynes does not envision the importance of the LSAT diminishing anytime soon - nor the blessings or blisterings of U.S. News & World Report.
"Should I complain about the system?" he asked rhetorically. "I suppose. But the message I get from Obama's election is that everything is possible. His story is, you just have to believe and you just have to plug away."