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Tuesday, April 25, 2017

Of bar passage, opportunity, and collective effort: a perspective on a very difficult issue of great importance (and about which reasonable people can and do differ)

In an effort to turn heat into some light, let me try my best to clarify my thinking on an issue that has engaged many well-meaning law profs (which is not to say that all law profs so engaged are well-meaning; I'll leave it at that).  No special knowledge or authority from me of course, but just one law prof's opinion:

1. I remain convinced that the effort on the part of the ABA Section on Legal Education to strengthen standards for, and thus the accountability of, law schools is on the whole a good thing.  Indeed, it is the responsible thing to do, given what it is a very difficult, and often quite tragic, predicament facing law students with unconscionable debt, thin employment prospects at least in the short term, and not the credential necessary to enter into the legal profession as a lawyer.  So, the effort is an important one;

2. Furthermore, this effort is not a racist one, regardless of occasional, irresponsible comments along those lines.  Does it have a disparate impact on racial minorities? Acknowledging the pertinence of the question, that would seem a rather severe stretch.  Ask yourself: If the bar exam itself is not a violation of the Civil Rights Act because members of racial groups pass in much lower numbers (itself a matter of serious, pressing concern and unacceptable in a profession that rightly aspires to be inclusive in all aspects), then how is it that a standard for bar passage that applies across all law schools would be such a violation?

3. To be sure, one doesn't have to reach disparate impact law to still worry about the effect of this heightened standard on opportunities for members of minority groups.  I, too, worry about that.  On a professional level.  On a personal level.  From the perspective of someone who would not be where I am today without structures of access, commitment to inclusion at my law school and large, access-focused public university in southern California and, yes, affirmative action.  But I worry equally, as I wrote with Dean Craig Boise from Syracuse several months ago, about the deep predicament and often dire circumstance of disadvantaged students coming to law school with a promise of success, only to find themselves without adequate support, deep in debt, and essentially forgotten by law profs and administrators whose interests are shaped by other considerations and demands.  Regulation is surely no panacea, but the well-meaning effort to hold accountable law schools through the imperfect, but best available, mechanisms of the current bar exam is an important one.  And legal educators would do well, in my view, to engage in constructive, data-driven, appropriately humble conversations about how best to achieve the fundamentally congruent goals of opportunity and educational adequacy;

3. Thanks to the efforts of many educators and associations, there is progress in this direction.  And we should both note it and applaud it.  For example, the California bar examiners should be commended for heeding the call of California law deans and others to look anew at the bar cut score and to the ways in which the current structure is inhibiting access and opportunity.  This is not just a "California problem," but is a problem more generally for our professional nationally;

4. The continuing expansion of the UBE (along with attention to a more consistent cut score nationally) promises to help law students, this by broadening opportunity to look at many more law schools across the country, those who are able to provide a comprehensive curriculum without the barriers of entry that come from "teaching to the bar;"

5. The AALS, under Judy Areen's wise leadership, has undertaken a remarkable "Before the JD" project, to gather information about why, other than the powerful impact of cost and debt, law school has eroded so significantly in popularity.  I hope and expect that we will learn much useful from this study, including how to think about outreach and inclusion for pre-law students of color;

6. Arizona and Harvard's decision to offer the GRE as an alternative test to the LSAT is intriguing, and it would seem promising at least on a preliminary glance.  Both law schools maintain that this broadening criteria for admission will help with access.  Moreover, if it destabilizes to some degree the large impact of USNews insofar as the LSAT becomes less of a barometer, that could and should help with diversity as well.

Alongside these very constructive reforms, danger looms large.  The potential defunding of the Legal Services Corporation to opportunity is a serious threat on a more global level. So too is the threat to the Interest Based Repayment program which has helped public interest grads in meaningful ways.  

But not to meander to far from the point:  The energy and momentum behind regulation and oversight of law schools whose track record in assisting their graduates of color with their academic and employment efforts is troubling is a positive development.  I joined a letter  from the AALS deans steering committee asking the ABA Section to take some more time to look closely at the data and join in a conversation that might yield a regulatory outcome that would be even better and would garner more support.  That is not inconsistent with the position in favor of more accountability.  And, indeed, the revised standard on the table is to me clearly better than the status quo.

 The important problems of access and opportunity by students of color -- including first generation college students like myself and many of my students, here at Northwestern and at other law schools at which I have had the privilege of teaching -- cannot be escaped or evaded by resisting efforts at regulation and accountability.  Such evasions are fundamentally unfair to the individuals whose lives and careers are at stake and often in peril.

Posted by Dan Rodriguez on April 25, 2017 at 01:42 PM in Daniel Rodriguez, Life of Law Schools | Permalink


The GRE, back when I took the exam, was basically the SAT with harder verbal and easier math. I don't think anything has substantially changed in that direction. All of the arguments about the SAT being a barrier to access applies equally to the GRE; the same race gap in the SAT can be found in the GRE. The diversity created by law school acceptance of GRE scores is that a small chunk of money previously destined for LSAC is diversified towards ETS.

Posted by: GRE | Apr 26, 2017 3:27:02 PM

The Journal of Legal Education had a detailed article about how New York Law School tackled bar passage head on. It's worth reading, but the critical first step was to admit they had a problem and that continuing to teach in the traditional way was not going to change anything.

Posted by: anon | Apr 26, 2017 2:25:59 PM


Those "well-meaning folks" of which you speak are specifically "well-meaning law profs" so your decree that I am among their ranks would be quite a promotion from my current (er, former) rank of Indentured Lecturer. Based on the latest SALT data for my region, this should come with a 800-1000% salary increase (sadly, that's not hyperbole). Where do I go to collect it?

Posted by: Derek Tokaz | Apr 26, 2017 10:14:06 AM

asher in my experience (in practice) people who were very good at math, especially algebra, anything that required proofs (geometry), or a sort of higher order abstract but disciplined reasoning (calculus, linear algebra, etc) tend to be better lawyers. not necessarily writers, but smarter thinkers. i can teach you how to write. i can't teach you how to think. either the brain is wired and trained to reason logically, or it isn't. i am far more interested in how many math classes a person had than i am in how many english papers she wrote.

Posted by: VOE | Apr 25, 2017 11:30:33 PM

Asher, I don't know what geometry has to do with law school admissions. I suspect that understanding the logical structure of geometry (axioms and theorems to be proved) has a lot in common with understanding the law and thus should have a lot to do with law school. That said, I don't think the general GRE math component has much to do with anything. (Written as a mathematician, not a lawyer.)

Posted by: nac | Apr 25, 2017 8:54:59 PM

The second and third years could probably be gotten rid of, but we need some sort of exclusion mechanism to keep incompetent people from practicing law. The public should be protected.

Posted by: twbb | Apr 25, 2017 8:39:14 PM

Why not get rid of the bar exam?

Why not get rid of law school? Or at least the second and third years? If there are no particular required courses, what is the necessity for those two years?

Posted by: biff | Apr 25, 2017 6:50:49 PM

Maybe the GRE will help with access - I don't know - but why would law schools use a test that's "comprised of specific algebra, geometry, arithmetic, and vocabulary"? Would they just discount the third of the test that's math? If so, is the rest of the test all that different from the LSAT? If not, what does geometry have to do with law school admissions?

Posted by: Asher Steinberg | Apr 25, 2017 5:06:34 PM

I remain convinced that the effort on the part of the ABA Section on Women's Studies to strengthen standards for, and thus the accountability of, Women's Studies schools is on the whole a good thing. Indeed, it is the responsible thing to do, given what it is a very difficult, and often quite tragic, predicament facing Women's Studies students with unconscionable debt, thin employment prospects at least in the short term, and not the credential necessary to enter into the Women's Studies profession as an activist. So, the effort is an important one;

Posted by: NotJustLawStudents | Apr 25, 2017 4:42:10 PM

I hereby decree that Mr. Tokaz is one of the well-meaning folks of which I speak. So it is written, so it shall be done.

Posted by: dan rodriguez | Apr 25, 2017 3:58:54 PM


You've got two #3s up there. Why do you privilege 3s, giving them twice as much space as other numbers, while marginalizing 7s?

Also, is it Dan or dan? I find your inconsistent capitalization quite troubling.

Posted by: Derek Tokaz | Apr 25, 2017 3:38:16 PM

Very grateful for the link, Scott. Agree 100% with your "nothing more" comment. Don't know enough about Whittier to venture a comment about what they do or don't do. But it is extremely valuable as a collective matter to learn more about the innovations underway at law schools in this space. Love to hear comments telling us more!

Posted by: dan rodriguez | Apr 25, 2017 2:06:24 PM

If you want to help minority students, you have to adopt new teaching methods. See my article, How to Help Students from Disadvantaged Backgrounds Succeed in Law School, 1 Texas A & M Law Review 83 (2013). A few law schools have done this with remarkable results. For example, the program at FIU has caused the school to have the highest or second highest bar pass rate on the last four Florida bar exams.

Law schools can help minorities if they want to. But, admitting minority students with nothing more will do nothing, as the results at Whittier demonstrate.

Posted by: Scott Fruehwald | Apr 25, 2017 1:58:39 PM

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