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.