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February 03, 2017

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Stan Adelman

Thank you, David, for as illuminative, fair-minded, and relatively judgment-free an account of this history as is possible.

David Frakt

Thanks, Stan. It is so rare to hear a genuine compliment these days. I appreciate it.

Leo

Great post, David.

What do you think of the incoming ABA president's proposal to basically gut the section of legal ed and form a new committee to oversee all but accreditation, which the section would handle? I don't think this model,would work, but the section brought this on itself by moving so slowly to address the crisis in legal ed and sticking to the status quo.

ABA also cutting its budget 10% across the board, cutting staff, etc. some of the section changes may be related to $$, too.

Bill Patton

The ABA is a national law school accreditation organization and should promulgate standards that do not have a significantly discriminatory effect on different states. Proposed Standard 316 punishes schools that enroll a significant percentage of Black and Hispanic students with lower GPA/LSAT statistics, but who significantly outperform outcome predictions on the only standardized bar examination section taken by almost every law student in the United States, the MBE. Compare, for instance, Southwestern in California with SUNY Buffalo. Southwestern admitted 20% Black and Hispanic students compared with SUNY's 8.4%. Southwestern's LSAT/GPA statistics were significantly lower than SUNY's. However, on the July 2016 bar examination Southwetern's students had a mean MBE score of 1406, above the national MBE mean, and would have scored a 74% passage rate on the July 2016 New York bar examination. SUNY had a 73% passage rate even though it had few minority students and higher LSAT/GPA statistics. This means that Southwestern provided its students with a significant "value added" education - students outperformed their entering statistics. However, under the proposed Standard 316, Southwestern will lose ABA accreditation since it only had a California passage rate of 38%. Everyone knows the disconnect. The ABA standard is based on states' MBE cut scores that range from 122-145, not on the quality of education provided by a law school or on comparative outcome measures on the standardized MBE test.

The House should reject proposed Standard 316 for two reasons. First, the standard is unfair to schools in states with extremely high cut scores. For instance, the proposed standard in California, based on the July 2016 results would lead to the loss of 57% of Hispanic law students and 58% of Black law students attending California ABA law schools even if those schools' students score higher on the MBE than the national MBE mean. Second, there is a way to mollify the differences in state cut scores without destroying diversity in the profession. A second standard can be added to the Council's proposal when the measure is referred back to the Council. The second standard would state that a law school is in compliance if for two out of the last three years a school's mean MBE score is within a chosen standard deviation of the national MBE mean. This standard will be based on a school's outcome measure of the quality of students' performance on the MBE, not on a decision by a state supreme court on how tightly it will create a monopoly of access to the profession by setting a very high cut score.

My proposed ABA MBE standard should be welcomed by Law School Transparency since it will now provide students with much more information about the quality of the law school they are choosing to attend because it will provide not only a bar passage rate, but a national comparison of schools' outcome measures on the MBE standardized test. This is a non-paternalistic solution because it respects college graduates' ability to look at information (bar passage rates/MBE mean scores/jobs data, etc) before selecting a school.

Schools, like Southwestern, the University of San Francisco, and the University of Hastings, that provide high numbers of minority students a chance to enter the profession and provide an education which results in a higher than national mean MBE outcome measure, should be celebrated rather than thrown out of the ABA club.

David Frakt

Bill Patton -

Reasonable people can differ over whether the California bar is setting their passing standard unreasonably high. (Reasonable people might also believe that other states bars have set their passing standards unreasonably low.) That is a legitimate matter for California law school Deans to take up with the California Supreme Court and State Bar of California. Their argument that the cut score is unreasonably high will be enhanced if the ABA imposes this new standard and schools which are demonstrably practicing reasonable admission standards and providing a solid legal education can't meet the standard. But I disagree with the idea that California law schools are being "punished". These schools know where they are located and they know, or should know, what it takes to get graduates to pass the bar exam. Southwestern's first time pass rate has been over 60% many times in the past, and they can do it again. For example, Southwestern's first-time pass rate was 73.5% in 2013. USF's first-time pass rate on the California bar was 74.1% in 2013 and 62.1% in 2014. That was before both schools dramatically lowered admission standards. And they didn't lower standards in an effort to increase diversity. They lowered standards to stay in business.

Your claim that passing Standard 316 would lead to 58% fewer African-Americans and 57% fewer Hispanics attending law school in California is based on two wildly unrealistic assumptions. First, you assume that every single school that did poorly on the July 2016 bar exam would lose its accreditation and immediately close, an idea wholly detached from reality. Second, you assume that none of the black or Hispanic students currently enrolled at any of the law schools that you predict will close would enroll at any other law school. This is also a completely preposterous assumption. What is far more likely is that two or three of the weakest, most exploitative schools (Thomas Jefferson, Whittier, and Golden Gate come to mind) may be forced to close. This will actually strengthen the remaining law schools in California, as the top half of students who might have gone to the schools that fail will likely choose to attend a competitor. The best students from Thomas Jefferson might go to Cal Western. The best students from Whittier might go to Western State, and the best students from Golden Gate might choose to attend USF, for example. As for the impact on diversity, everyone in legal academia knows that law schools all compete for every reasonably qualified minority applicant, so there is every reason to believe that all of the minority students with reasonable prospects of success would be accepted at another school in California. The only potential impact on minority enrollment is an entirely positive one - the minority students with very poor prospects for success who are currently being admitted to schools with exploitative admissions practices might find, as they did before the law school crisis began, that no ABA law school will admit them. For those students who are determined to go to law school and practice in California, there are many state accredited schools that will take virtually any college graduate. For minority students who have a reasonable chance of passing some bar, but not the California bar, they can apply to a law school in a state with an easier bar.

Deborah Merritt

Excellent post, David!

Bill Patton

David,

I agree with you that reasonable people can differ on these difficult issues. For instance, a reasonable person could agree with you that students should be supplied sufficient and accurate information from which to make a decision whether and to what school to apply. Reasonable people might agree that law schools should be held accountable for providing their students with a sufficiently good legal education so that they can perform near the mean of all ABA law students on a standardized bar examination. However, reasonable people can disagree on whether ABA accreditation should hinge on the monopolistic tendencies of state supreme courts. For instance, what if the California Supreme Court decided that based upon a short-term dip in the number of legal jobs in California that it will raise the state's cut score from 144 to 149? Now assume that all CA law schools maintain their LSAT/GPA's, curriculum, tuition, etc. And each of those law schools' mean MBE scores meets the national MBE median. Assume that based on that 5 point cut score raise now 15 CA ABA law schools will score below a 60% passage rate for several years and lose ABA accreditation. Under your and the ABA Council's positions, this result is justified based solely on state bar passage percentages. I simply disagree with you and the Council on the nature of this litmus test.

Your optimism for higher bar passage rates on the California bar for schools that performed lower than 60% on the July 2016 California exam is pure speculation. First, those schools' historic bar passage rates are based upon a different California bar examination that did not add additional substantive law that is now tested. Second, it does not take into account changes coming to the California bar examination that many argue will further lower the bar passage rates such as increasing the weight of the MBE from 35% to 50% and shortening the test from three days to two days. The fact is that we do not know how these changes will impact bar passage rates of California schools or subsets of students attending those schools.

Similarly, others have argued that the bar passage standard should not be changed until we know the effects on the many new jurisdictions that now take the UBE. Reasonable people can agree that changes in the bar passage standard need be made but that we need more time to determine the effects before those changes are implemented.

anon

Of course, this measure must be adopted! The cries that "Proposed Standard 316 punishes schools that enroll a significant percentage of Black and Hispanic students" is really offensive and racist.

There is another reason to move forward, fast. And ENFORCE THE RULES.

Let's take a walk down memory lane, and consider these posts in the FL, not so long ago:

"August 20, 2014
The Coming Lawyer Shortage
In this post, I will argue that within a few years there will be a shortage of entry-level lawyers. Law school enrollments have dropped so much that the demand for new lawyers will far exceed the supply of law school graduates. In a relatively short time, we will have gone from an environment where employers received hundreds of resumes for every open position to one where employers might not receive any resumes at all."

"April 10, 2014
#1 - Intro - Enroll Today!
Why 2017-2018 Will Be a Fantastic Time to Graduate from Law School
A few years ago while working at a law school, I accidentally spiked our daily admissions numbers. What did I do? I unthinkingly threw in the word “today” by telling people to apply “today” to receive a fee waiver. I didn’t mean that today was the only day to do it, but that’s what the recipients of the e-mail believed. Which meant we received about 25 responses when we would have normally received only 5 or 6.
Why am I telling you this? Because I want prospective law students to know that this time I mean it. Enroll today or you will miss out on what might be a once-in-a-lifetime opportunity. Namely, the chance to graduate from law school in 2017-2018, which will likely be one of the best times ever to graduate from law school."

We about six months away from the "likely best times ever to graduate from law school" - how many were induced to apply and enroll (in a climate of disappearing standards") based on the representation of a "once in a lifetime opportunity" to enroll hawked in these pages?

Readers of the FL will remember how some begged and pleaded for these forward looking statements to stop. We all remember, one hopes, how some of these actors doubled down, used profanities at those who objected, and basically argued over and over that by NOW law firms would be begging for law school graduates to fill all their unmet demand.

We see the result.

Is enough ever going to be enough?

David Frakt

Bill - I don't think students attend law school to score near the national mean on one portion of the bar exam. They attend law school to become lawyers, and that requires passing the bar. Changes to bar exams are generally announced well in advance giving law schools the chance to adjust.

Leo

Excellent responses, David.

I agree with anon that the idea that blacks and Hispanics will be harmed by the new standard is extraordinarily racist, as is the exploitive behavior of the schools that target minority students with poor credentials through pipeline programs and the like.

Given that the incoming ABA president has signaled she wants major changes to the section of legal ed, I would be surprised if this does not pass.

anon

David

Thank you for these comments:

" These schools know where they are located and they know, or should know, what it takes to get graduates to pass the bar exam."
"Changes to bar exams are generally announced well in advance giving law schools the chance to adjust. "

Indeed, although I think you would deny it, it seems there is some recognition that law faculties do affect the performance of students on the bar exam (and thus, bear some responsibility, beyond the admissions office, for the failure of some law schools).

David Frakt

I don't want to accuse anyone of being a racist, certainly not Bill Patton. I have been accused myself for being a racist for advocating for higher standards, and it is a very hurtful accusation. There are plenty of people of good will who have genuine concern about the impact of the proposed standard and whether it will set back the progress that law schools have made in increasing diversity. Although i think those fears are overblown that does not mean they are not sincerely held. As for the law schools that have been taking advantage of poorly qualified minority students, I don't think they are racist either. These schools also take advantage of poorly qualified white students as well. But I do believe that some of these schools are cynically using diversity as an excuse to justify predatory admission practices.

Leo

Good points, David, i am sure Bill. Whom I do not know, is not a racist, and you are correct that white students with poor credentials are hurt, too, so why bring race into the discussion of the proposed standard at all? I see it as a last gasp effort to justify their position.

anon

We all know that certain persons, namely, persons who are not Democrats, are routinely labeled "racist." Not so hurtful then, though, right?

Ok, here we don't have a statement that persons who have had a challenging upbringing (obstacles to a good education and home life, low SES, etc.) score lower on certain standardized tests (for which, more affluent individuals, like most of those who populate legal academia, are groomed from early childhood).

Here, we have a blatant statement that "Black and Hispanic students" are inherently inferior (i.e., the inference is that white students who have similar SES profiles do better because they are white).

THis sort of statement is racist. I don't know if the speaker is racist or not, but, David, you seem want to condemn the system but never the individuals within it. Why?

David Frakt

Anon -

I am not sure where you are reading the "blatant statement that 'Black and Hispanic' students are inherently inferior." What we know is that black and Hispanic students have lower LSAT scores on average than white and Asian students. So, if law schools decide to raise minimum LSAT scores, that will exclude proportionally more black and Hispanic students. The question is whether this will have the unintended effect of excluding a significant number of minority students who might reasonably be expected to succeed, or if it will largely result in excluding students who would be better of not going to law school since they are very likely to fail. I tend to think it is the latter, but there are reasonable people who are worried that it may be the former. Many diversity advocates are also concerned about overreliance on LSAT scores, which are admittedly an imperfect predictor, even if they are the best predictor we may have at the time an admission decision must be made. But until a school can demonstrate that it can get a reasonable percentage of students with very low predictors to pass the bar (an experiment that the University of North Texas is involved in right now) I think schools are justified in relying fairly heavily on LSAT scores, as they have for many years.

I am perfectly willing to criticize actions or words which are reprehensible, but I generally try to avoid "condemning individuals" (or groups for that matter) and I don't lightly attribute bad motives to people I don't know. I try to model civility in my writing, although it doesn't seem to have much effect on many of the commenters.

anon

Please cite the study that compares the performance of persons of different races, on standardized tests, that controls for SES.

If you are correct that "black and Hispanic students have lower LSAT" scores BECAUSE of their "race" (as you must know, "Hispanic" refers to country of origin, not race), then the ETS and other purveyors of tests like the LSAT and bar exam are in big, big trouble.

Of course, folks have been trying for 40 years to prove these tests are "racially" biased. Folks have also attempted to prove the tests are "culturally biased" with a bit more success, but that goes to SES, not race.

Answer a direct question: do you think that this is a racist statement: "blacks have lower LSAT scores because they are black."

If so, then anyone who blatantly suggests as much is making a racist statement, and should be called out. (I have no problem with the statement that folks who do not have the elite backgrounds that most law professors enjoy need a hand: but that isn't a racist statement at all, that is a fair and objective statement that accounts for SES and doesn't divide people by trying to whip up the virtue signaling tendencies of elite law professors).

If you think this statement is true - "blacks have lower LSAT scores because they are black" - then please, again, cite your support that blacks are, by reason of their race, inherently likely to score lower on the LSAT when compared with "whites."

IMHO, the statement ""blacks have lower LSAT scores because they are black" is racist, and that is exactly what was implied above.

anon

BTW, it is likely the point is missed here.

WHen elites pound their chests and pretend they are only in it for "the children" or "the minorities" watch out!

If the speaker above had said the proposed standard will disproportionately affect persons of a lower SES, then I would not object. But, the implication that the standard is racist, or at least will have a racist effect, is clear, and untoward.

Captain Hruska Carswell, Continuance King

75% is a "C." How many folks reading this will be happy if their little school aged child brings home a "C"? Didn't think so.... I recall my T-2 law school's bar passage rate fell to 89% in 1992. There was tremendous panic and hand wringing. There was outrage. My school didn't fight the standards. It tightened enrollment credentials and decreased class sizes. Bar Passage rates returned to the 90s.

anon

California bar pass rates in the 1980s were similar.

Then, the cry was "antitrust violation" ... the Bar, it was said, was intentionally holding down the numbers to make sure the market stayed robust.

People in this milieu seem to have no institutional memories, they seem to be influenced by politics more than actual facts and they seem to posture rather than dig in, study and actually come to some reasoned conclusions.

IMHO, the fact that law schools are lowering admissions standards to stay in business is disgusting, and the tale is told when the bar is taken (hint: ability to pass the bar is not based on race). The DOE may be expected to back off, but, don't count on it. One hopes that federal loan eligibility is finally, at long last, withdrawn from the worst of the worst.

If the ABA wants to even stay in the game, it better act, and act fast.

anon

Just read the California Dean's letter, pleading to lower the standards!

Here is the anti trust violation, folks.

The top rated schools in California have NO REASON to so plead: their pass rates are always acceptable.

One hopes that letter is ignored by the California Supreme Court; it is a transparent effort to save the bottom feeders (whose "diversity" candidates, btw, will be far better off in better schools, once the bottom feeders are closed and thereby prevented from feasting any longer on federal student loans.)

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