Report of the Diversity Committee 1998
| I. Our Charge | II. Our Study | III. Findings and Recommendations | Conclusion |
Click here to download a Word file of the 1998 Diversity Report (diversity-report-1998.doc)
2000 Report of the Diversity Committee
Submitted by Herma Hill Kay
Chairperson
Rudy Hasl appointed our Committee in 1996 and asked us to expand our
charge to include a focus on the situation of women as well as of
minorities in legal education. In particular, he asked the Committee
to consider two matters: (1) law school admission policies in the
wake of the Fifth Circuit decision in the Hopwood case and
the UC Regents' resolution and Proposition 209 in California; and
(2) the treatment of women students, faculty, staff and administrators
in legal education, building on reports such as that of the ABA Task
Force on Women in the Profession, AElusive Equality."
During 1996-97 the Committee held three meetings in conjunction with
meetings of the AALS, the ABA, and the ALI, and made a final report
to the Council on August 1, 1997, at its meeting in San Francisco.
The Report described the Committee's work during the year, and proposed
a resolution for the Council's consideration. The final part of that
Resolution proposed a study to be undertaken by the Law School Admissions
Council and the law schools, described as follows:
5) that the Section propose to LSAC and the law schools a pilot project to study the effect on minority admissions if the LSAT score were to be used as setting a minimum threshold below which, in the absence of compelling factors, schools would not consider applicants, rather than using the LSAT score in combination with UGPA to produce an index number to be used in the admissions process. The remaining applicant pool would then be chosen using UGPA and other school-determined relevant factors as the basis for the admissions decision. The Section requests that LSAC and the law schools report back the results of this study as soon as may be feasible.
In
addition, the Committee asked that the Standards Review Committee
consider expanding Standard 211 on Equal Opportunity Effort to include
women of all colors as one of the identified groups and that Interpretation
211-1(h) be expanded to include women faculty of all colors as well
as minority faculty who are both male and female. The Council accepted
this recommendation.
In 1997, Chairperson Beverly Tarpley reappointed the Committee with
essentially the same membership, and charged it with the implementation
of the study proposed by the 1996 committee and approved by the Council,
as well as the continuation of its efforts to improve the position
of women in legal education.
During the 1997-98 year, the Diversity Committee met at the AALS annual
meeting in San Francisco on January 9, 1998, and at the mid-winter
ABA meeting in Nashville on February 1, 1998, and held several conference
calls. In addition, the Committee Chair was present by conference
telephone call at a meeting convened by Dean Frank Newton at Texas
Tech College of Law on April 15, 1998. The committee presented its
preliminary report to the Council at its meeting in Newport, Rhode
Island, on June 6-7, 1998.
I.
Our Charge:
The Dilemma of Maintaining Broad Access to Legal Education
When Race and Ethnicity Cannot be Taken into Account
In the vast majority of law schools, the U.S. Supreme Court's
1978 decision in the Bakke case permits the use of race-conscious
factors in the admissions process. During the two-year period of this
committee's work, however, the use of race and ethnicity as factors
in the admissions process has been prohibited in two sections of the
country. The three states within the jurisdiction of the U.S. Court
of Appeals for the Fifth Circuit (Texas, Louisiana and Mississippi)
have been affected by that court's opinion in Hopwood v. Texas.
Because law schools in Louisiana and Mississippi have been subject
to pre-existing court orders in desegregation cases, however, the
primary impact of Hopwood has been felt in Texas.
In California, the University of California Board of Regents prohibited
the use of race and ethnicity as criteria in admissions, hiring, and
contracting by two Resolutions, SP-1 and SP-2, adopted on July 20,
1995. In November 1996, California voters approved Proposition 209,
which forbids, among other things, granting "preferential treatment
to any individual or group on the basis of race [or] color…in
the operation of public…education."
In both California and Texas, the implementation of these measures
at the public universities has resulted in steep declines in the number
of disadvantaged minority students applying to, admitted by, and enrolling
in the most selective law schools. Faced with these dramatic results,
a national re-evaluation of the arguments for color blind admission
policies in universities has begun. In response to the urgency of
this situation, the Committee has devoted its meetings and several
conference calls to this aspect of its charge. As we note below, we
recommend that next year's committee give priority to the second part
of our charge focusing on women in legal education.
The pilot project that we undertook addressed the use of the Law School Admission Test (LSAT) by selected schools to admit their entering classes in 1996 and 1997. Standard 503 provides that:
A law school shall require all applicants to take an acceptable test for the purpose of assessing the applicants' capability of satisfactorily completing its education program. A law school that is not using the Law School Admission Test sponsored by the Law School Admission Council shall establish that it is using an acceptable test.
All ABA-approved law schools currently use the LSAT to comply with Section 503. We assumed that this universal practice would continue. Questions have been raised concerning how the LSAT is and should be used in the selection process. For those who would like to explore this matter further, we append a list of readings. To examine these issues, we focused our analysis on how schools use the LSAT and on a range of options for refining its use to improve its accuracy and to maximize diversity.
A. Methodology
The Committee worked closely with President Philip D. Shelton
of the Law School Admission Council in conducting its study of ways
that a school using the LSAT might choose to broaden its pool of qualified
applicants using race-neutral devices. To conduct the study, the Committee
asked LSAC to provide it with a substantial amount of data.
The initial data provided to the Committee by LSAC were drawn from
ten unidentified public law schools C nine from California and the
Fifth Circuit and one school outside these areas. The report for each
school included descriptive historical data for the applicant/admit
pools for application years 1994-95, 1995-96 and 1996-97; and the
same information for the number of actual admits in fall 1997 if the
school had used as the criteria for admission the index only, or the
LSAT only, or the undergraduate grade point average (UGPA) only.
Three hypothetical models were constructed (called Alternatives A,
B and C). These models used baseline LSAT scores drawn from each school's
actual admit pool for the 1995-96 admission year to identify "qualified"
applicants. Alternative A used an LSAT score equal to the score that
was actually tenth from the lowest score of all admitted applicants
for that school. (The lowest score was not used to avoid outliers.)
Alternative B expanded the LSAT range by five points and Alternative
C expanded the range by an additional five points. In each instance,
applicants who met the "qualifying" LSAT score were then
ranked according to UGPA and a matrix that displayed the characteristics
of the students admitted (a number equal to the number of actual admits
in the class entering in the fall of 1997).
Each of the above methods for identifying admitted applicants was
matched against the following characteristics: gender, ethnic
identity (including American Indian/Alaskan Native, Asian/Pacific
Islander, Black/African American, Caucasian/White, Chicano/Mexican
American, Hispanic/Latino, Puerto Rican, and Other); LSAT scores,
including the lowest, highest, and 75th, 50th,
and 25th percentiles; UGPA, including the 75th,
50th, and 25th percentiles; undergraduate
major, categorized broadly under Arts & Humanities, Business
& Management, Computer Science, Engineering, Health Professions,
Natural Sciences, and Social Sciences; age, categorized by
22 and under, 23-25, 26-30, 31-35, and over 35; graduate degree
earned; and resident/non-resident status as determined
by the location of the law school and the permanent residence of the
applicant.
The Committee focused on Alternatives A and B, and the final data
report produced by LSAC reduced 310 pages of data to a single page
identifying the 1995-96 applicant/admit counts, the 1996-97 applicant/admit
counts, the number of applicants "qualified" for Black/African
Americans, Asian/Pacific Islanders, Chicano/Mexican Americans, and
Hispanic/Latinos for each of the hypothetical models. The findings
and conclusions of this study are based on the data from this analysis.
In the course of our study, we learned that, while many schools combine
two numerical indicators, UGPA and the LSAT score, to produce an index
number that can be used to rank applicants, schools also rely on an
array of additional factors. These non-numerical indicators include
undergraduate majors, post-graduate study or work experience, letters
of recommendation, community activities, indicators of leadership
both in high school or college, and special efforts made to overcome
disadvantage.
We also learned that not all law schools use an index number in their
admissions process, and those that do use it vary the amount of weight
given to the two variables that constitute the measure. Thus, for
the application year 1997-98, the 179 ABA-approved law schools used
the following types of index formulas:
106 (59%) used a formula based on correlation study results (either the most recent or based on a prior year's study);
46 (26%) used a different formula representing alternative weightings of LSAT and UGPA; and
27 (15%) used no index formula produced by LSAC.
Of
the 168 ABA-approved schools that participated in the 1997 LSAT Correlation
Study, most weighted the LSAT between 65 and 55 percent and the GPA
between 35 and 45 percent in the formula. Only a very few schools
weight the LSAT above 70 and the GPA below 30. These relative weightings
can make an important difference in how a law school applicant's credentials
will be evaluated and considered by different schools. For example,
an applicant with a 3.75 UGPA and a 145 LSAT will rank much better
under an index calculation which weighs UGPA and LSAT equally than
one which weighs the LSAT at 70% of the index value. Moreover, some
schools blend in other variables, such as putting greater weight on
the last half of an applicant's college grades. And some schools recalculate
their indices over time in order to account for changing applicant
pools, while others have kept the index calculation the same to preserve
consistency.
B. The Role of the LSAT as a Qualifying Credential
Our project examined the effect on minority admissions
at a sample of unidentified schools if the LSAT were to be used to
set a minimum threshold below which, in the absence of compelling
factors, schools would not consider applicants, rather than using
the LSAT score in combination with UGPA to produce an index number
to be used in the admission process. We do not propose the establishment
of a "cut off" score below which files would not be read.
Rather, we envision the identification of a group of applicants below
the threshold whose files would be carefully scrutinized for compelling
factors that might support a favorable decision despite the LSAT score.
After reviewing the data described above, the Committee focused on
an analysis that compared the proportion of admits to total applicants
with the proportion of actual minority admits to qualified minority
applicants. The purpose of this analysis was to determine whether
using the LSAT as a qualifying credential might give schools an opportunity
to expand minority admissions. We hypothesized that a school would
expand its pool of qualified applicants by using the LSAT as a qualifying
credential if the ratio of its actual minority admits to its qualified
minority applicants was greater than the proportion of total admits
to total applicants.
Given this hypothesis, the Committee expanded its analysis to include
31 law schools, public and private, from across the country and across
the spectrum of schools, including the original ten. As noted above,
the Committee used two "baseline" LSAT scores in defining
"qualified": (1) [Alternative A]: a 1997 applicant is qualified
for admission if the applicant's LSAT score is equal to or higher
than the 1996 admitted student's score which was 10th from
the lowest LSAT score in the school's admitted pool for 1996; and
(2) [Alternative B] a 1997 applicant's LSAT score was within five
points of the LSAT score which was 10th from the lowest
LSAT score in the admitted pool for 1996. Using these two definitions
of "qualified" as the criteria for being eligible for consideration
for admission to each individual law school, the following results
were achieved:
The number of schools that would expand the subset of qualified minority
applicants in their pool through using Alternative A are:
|
Alternative
"A"
|
|
|
Minority
Applicants
|
Number
of Schools
|
|
Black/African-American |
6
|
|
Chicano/Mexican-American
|
14
|
|
Hispanic/Latino
|
7
|
|
Asian/Pacific
Islander
|
7
|
Further analysis reveals that there is little overlap among these schools across the different ethnic identity groups. The total number of schools that would expand their pool of one of these four ethnic identity groups was 20. When Asian/Pacific Islanders are not counted, 18 schools would expand their pool for at least one of the remaining three groups. When all four minority groups were added together, however, i.e., when summing the estimated number of qualified applicants across all four groups and comparing that total to the number from these groups that actually were admitted in 1997, only one law school expanded its pool. (Four schools did so when Asian/Pacific Islanders are omitted from the cumulative totals).
The results from using "Alternative B", which would include virtually all applicants admitted to any of these schools in 1996, as applied to the applicant and admission data for the same schools in 1997, were as follows:
|
Alternative
"B"
|
|
|
Minority
Applicants
|
Number
of Schools
|
|
Black/African-American |
19
|
|
Chicano/Mexican-American
|
18
|
|
Hispanic/Latino
|
20
|
|
Asian/Pacific
Islander
|
14
|
The
total number of schools that expanded their pool of qualified minority
students for at least one of these four ethnic identity groups through
using "Alternative B" was 30 of the 31 schools. When Asian/Pacific
Islanders are omitted, 29 of the 31 schools did so for at least one
of the remaining three groups.
In summing the estimated number of qualified applicants across all
four groups and comparing that total to the number from these groups
that actually were admitted in 1997, fourteen law schools expanded
their pools with this approach. Using the same analysis, but omitting
the Asian/Pacific Islanders, sixteen schools did so.
It thus appears to us that nearly half the law schools might give
themselves a better opportunity to broaden the subset of eligible
applicants in their pool and to improve their minority admissions
if they utilized AAlternative B". Interested schools should request
the data underlying this analysis from the LSAC in order to determine
the effect of either alternative on their applicant pool.
In addition to the analysis described above, the Committee asked the
LSAC to run several other tests to determine whether the use of other
factors might broaden the pool. We inquired about whether factors,
such as age or undergraduate major, might correlate with either minority
status or gender in a fashion that would enhance a school's ability
to achieve a diverse student body. We learned that minority status
and gender do not strongly correlate with these factors.
III. Findings and Recommendations
The work that the Committee has done leads us to offer several findings and recommendations:
(1) Purposes of the LSAT. The LSAT can be used for two purposes: (1) to provide evidence that an applicant can succeed in the first year of law school; and (2) to allow the school to compare one applicant to another applicant. Schools have most frequently used the LSAT for the second purpose, and have mistakenly assumed that small differences in scores indicate great differences in individual ability. In order to correct this mistaken assumption, the LSAC has begun to report LSAT scores to schools in bands that show the margin of error surrounding a particular score: an applicant who scores 159, for example, should be viewed as falling within a band of 156-162.
(2) Achieving diversity. For the vast majority of law schools, the most effective way to achieve diversity is to take into account the diversity that applicants from racial and ethnic minority groups bring with them. As noted above, this approach is solidly grounded on the Bakke decision.
(3) Achieving diversity when race and ethnicity cannot be taken into account. Public schools in California and the Fifth Circuit are prohibited from using race and ethnicity as factors in admissions. The challenge of maintaining significant diversity is more difficult in these jurisdictions for highly selective schools with large applicant pools. Under these circumstances, the smaller numbers of minority applicants are vastly outnumbered by other applicants at all levels of the pool. The use of Alternative B may prove quite helpful to some schools in this category, and we recommend that such schools request appropriate data from LSAC to make this determination for themselves.
(4) Overreliance on the LSAT. Even those schools that would not expand their pools by using Alternative B should scrutinize their current processes to eliminate overreliance on the LSAT and to incorporate more individualized assessment of candidates. We share the view repeatedly voiced by the Law School Admission Council that many schools use the LSAT incorrectly in the admissions process.
(5) Experiments recommended. The Committee urges schools to develop their own unique admissions processes to achieve the mix of students they desire. We found that there is no uniform standard that identifies a single measure of "merit" in evaluating numerical indicators in the admissions process. Schools should feel free to experiment with the numerical indicators in relation to each other and to other, non-numerical, indicators in making their admission decisions. Schools that wish to experiment with Alternatives A or B described above may instruct the LSAC to report only that an applicant is "qualified" and to omit the specific LSAT score or scores. A school using this approach will, of course, be expected to disclose fully to prospective applicants and the ABA how it uses the LSAT. The school will still be able to participate in the annual correlation study performed by the LSAC to permit evaluation of the propriety of using the LSAT in this manner.
Our committee
believes that Chairpersons Hasl and Tarpley charged us to look into
possible ways for schools prohibited from using race or ethnicity
to continue to provide broad access in admissions because they view
the provision of legal education without a diverse student body as
unacceptable. We strongly support this view for the following reasons.
In 1965, when affirmative action requirements for federal contractors
became official U.S. government policy, the legal profession in the
United States was constituted almost entirely of white men. Only three
out of every 100 lawyers were women; less than 1% were African-American;
and the number of other minority lawyers was so small that it was
not even tallied in the reporting sources. The changes that have occurred
in the legal profession since that time are dramatic indeed. The Bureau
of Labor Statistics reported in October 1997 that of 925,000 total
lawyers and judges employed in the United States, 26.6% were women,
2.7% were African-American, and 3.8% were Hispanic. Asians still were
not reported separately. In Fall 1997, 19.6% of J.D. enrollment were
members of minority groups. In addition, the rising application rate
of women to law school has been a major success story of the decades
after 1960: between 1965 and 1985, the proportion of women J.D. students
in ABA-approved schools went from 4% to 40% of the total. Today, in
Fall 1997, women constitute 42.5% of J.D. enrollment.
These numbers say something vitally important about our concept of
ourselves as a society. The ideal of American democracy C equal justice
under law C ultimately must rest on public confidence that the system
of justice is fair and even-handed in its treatment of all people
regardless of their status or condition. Thus, it is essential that
all of the people of our nation be able to sustain an abiding trust
in the fairness of the rule of law. Otherwise, they may not be willing
to obey the law. As we all know, today that trust has been severely
tested. The poor, the underprivileged, and various other groups who
remain outside the main-stream of our country do not have full confidence
that the law treats all persons fairly and with respect. We can help
allay this mistrust by making sure that the future lawyers, judges,
and law teachers of this country are more representative than they
now are of the nation as a whole. The need to diversify the legal
profession is not a vague liberal ideal: it is an essential component
of the administration of justice. The legal profession must not be
the preserve of only one segment of our society. Instead, we must
confront the reality that if we are to remain a government under law
in a multicultural society, the concept of justice must be one that
is shared by all our citizens.
Unless law schools C the gateway to the profession C are able to maintain
diversity by providing broad access to legal education, these goals
will be unattainable.
This Report is submitted by the Committee, all of whom worked diligently
and showed sensitivity and good judgment in addressing these difficult
matters:
Justice Joseph F. Baca New Mexico Supreme Court
Dean David Hall Northeastern University School of Law
Professor Michael Olivas University of Houston Law Center
Dean Burnele V. Powell University of Missouri (Kansas City) School of Law
Professor Judith Resnik Yale Law School
Professor Katherine L. Vaughns University of Maryland School of Law
Ms. Diane Yu Monsanto Corporation
Dean Herma Hill Kay, Chair University of California (Berkeley) School of Law
