Minority Participation in the Legal Education System and Some Policy Recommendations

by Gary Davis II

Abstract There are few minorities entering the legal profession. For example, the latest legal education statistics from the ABA indicate that in the 2006-2007 academic year, there were 9,529 blacks enrolled at the 195 accredited law schools in the United States, a miniscule 6.7% of the 141,031 total. Further, blacks received less than 3% of the J.D.’s awarded in the same academic year. In an attempt to stem the tide, law schools and the legal profession as a whole have sought to implement various programs aimed at diversifying the legal community. For example, the ABA’s Council of the Section of Legal Education and Admissions of the Bar adopted Standard 212, which provides in part that: “[A] law school shall demonstrate by concrete action a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities (emphasis added).” Essentially, the ABA has made diversity (or the lack thereof) a determining factor in law school accreditation. There are many reasons why minorities are not entering the legal profession at a rate on par with whites. This paper attempts to explain a few of those reasons. Further, it proposes some modest policy changes to facilitate greater minority enrollment. Some of the proposed policies are: strengthening the elementary and secondary education system in poor communities (disproportionately dominated by minorities), tighter control of law school costs and financial aid, and changing the Law School Admission Test (LSAT) scoring paradigm.

Table of Contents BACKGROUND, SIGNIFICANCE, & COMMENTS ON THE TOPIC...... 3 POLICY IMPLEMENTATION...... 10 STRENGTHEN THE ELEMENTARY AND SECONDARY EDUCATION SYSTEM...... 11 CONTROL LAW SCHOOL COSTS AND FINANCIAL AID...... 13 RESTRUCTURE THE LSAT SCORING PARADIGM...... 18 CONCLUSION AND REMARKS...... 20

INTRODUCTION There is little debate that law school provides the training ground for our Nation’s future leaders. Indeed, twenty-six of the nations 42 presidents were attorneys before becoming the

1 nation’s commander-in-chief.1 With today’s increasingly global marketplace, it is imperative for our leaders to develop skills that take into account the widely diverse people, cultures, ideas and viewpoints that are associated with the melting pot that is America.2 In University of California

Regents v. Bakke, Justice Powell emphasized that the “‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation.”3

Unfortunately, there are few minorities entering the legal profession to advance Justice

Powell’s goal. For example, while blacks make up approximately 12% of the United States population, the latest legal education statistics from the American Bar Association (ABA) indicate that in the 2006-2007 academic year, there were 9,529 blacks enrolled at the 195 accredited law schools in the United States, a miniscule 6.7% of the 141,031 total.4 In an attempt to stem the tide, law schools and the legal profession as a whole has sought to implement various programs aimed at diversifying the legal community. For example, the ABA’s Council of the

Section of Legal Education and Admissions of the Bar adopted Standard 212, which provides in part that: “[A] law school shall demonstrate by concrete action a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities (emphasis added).” Essentially, the ABA has made diversity (or the lack thereof) a determining factor in law school accreditation.

1 Tony Mauro, No Reason to Fear a Lawyer President, USA Today, October 10, 2004 (Note: President Bush is the 43rd president but Grover Cleveland was elected to two nonconsecutive terms making him the 22nd and 24th president). 2 Grutter v. Bollinger, 539 U.S. 306, 330, 123 S. Ct. 2325, 2340. 3 University of California Regents v. Bakke, 438 U.S. 265, 313, 98 S. Ct. 2733, 2760. 4 American Bar Association, Legal Education Statistics (2007), available at http://www.abanet.org/legaled/statistics/stats.pdf (Total minority enrollment is approximately 20%. Mexican- American/Hispanic enrollment is 6%, Asian-American enrollment is 8%, and Indian-American enrollment is less than 1%). 2 There are many reasons why minorities are not entering the legal profession at a rate on par with whites. This paper attempts to explain a few of those reasons. Further, it attempts to establish some workable policies to facilitate increased minority enrollment into law school and consequently increased minority participation in the legal profession, for “when the market distribution of economic rewards is unfair, it falls to the government to adopt policies that promote greater economic justice.”5 The goal of this paper is to produce a policy that creates a fairer representation of the minority population of America in the American legal justice system.

Some modest government policy changes could help achieve that end.

Some of the proposed policies are: strengthening the elementary and secondary education system in poor communities (disproportionately dominated by minorities), controlling law school costs and financial aid, and changing the Law School Admission Test (LSAT) scoring paradigm.

BACKGROUND, SIGNIFICANCE, & COMMENTS ON THE TOPIC In Grutter v. Bollinger, The Supreme Court of the United States ruled that diversity is a compelling interest and that race based admissions narrowly tailored enough can help serve that interest.6 Therefore, the constitutionality of race as a factor in determining admission for law school has been resolved, at least for now. The issue discussed in this paper is why minorities enroll at a disproportionately low rate relative to their respective demographic makeup in society and moreover, why minorities tend to fail out of law school at a rate disproportionately high relative to other students.

5 Jonathan Barry Forman, Making America Work 1 (2006). 6 See Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325. 3 Granted, total minority J.D. enrollment has slowly but steadily increased over time.

However, in the last decade, total minority enrollment as a percentage of total J.D. enrollment has been stagnant at best. The ABA provides the figures:

TABLE 1: First Year J.D. and Total J.D. Minority Enrollment 1971-20067 1st Yr. Total J.D. Total J.D. # of 1st Year Minority Enrollmen Minority Academic Year Schools Enrollment Enrollment % t Enrollment % 2006 - 2007 195 48,937 10,898 22.30% 141,031 30,557 21.60% 2005 - 2006 191 48,132 10,389 21.60% 140,298 29,768 21.20% 2004 - 2005 188 48,239 10,694 22.20% 140,376 29,489 21.00% 2003 - 2004 187 48,867 10,468 21.40% 137,676 28,325 20.60% 2002 - 2003 186 48,433 10,229 21.10% 132,885 27,175 20.50% 2001 - 2002 184 45,070 9,557 21.20% 127,610 26,257 20.60% 2000 - 2001 183 43,518 9,335 21.50% 125,173 25,753 20.60% 1999 - 2000 182 43,152 9,079 21.00% 125,184 25,253 20.20% 1998 - 1999 181 42,804 9,076 21.20% 125,627 25,266 20.10% 1997 - 1998 178 42,186 8,493 20.10% 125,886 24,685 19.60% 1996 - 1997 179 43,245 8,722 20.20% 128,623 25,279 19.70% 1995 - 1996 178 43,676 9,119 20.90% 129,397 25,554 19.70% 1994 - 1995 177 44,298 9,249 20.90% 128,989 24,611 19.10% 1993 - 1994 176 43,644 8,595 19.70% 127,802 22,799 17.80% 1992 - 1993 166 42,793 8,070 18.90% 128,212 21,266 16.60% 1991 - 1992 176 44,050 7,575 17.20% 129,580 19,410 15.00% 1990 - 1991 175 44,104 6,933 15.70% 127,261 17,330 13.60% 1989 - 1990 175 43,826 6,172 14.10% 124,471 15,720 12.60% 1988 - 1989 174 42,860 5,565 13.00% 120,694 14,295 11.80% 1987 - 1988 175 41,055 5,130 12.50% 117,997 13,250 11.20% 1986 - 1987 175 40,195 4,738 11.80% 117,813 12,550 10.70% 1985 - 1986 175 40,796 4,534 11.10% 118,700 12,357 10.40% 1984 - 1985 174 40,747 4,429 10.90% 119,847 11,917 9.90% 1983 - 1984 173 41,159 4,393 10.70% 121,201 11,866 9.80% 1982 - 1983 172 42,034 4,421 10.50% 121,791 11,611 9.50% 1981 - 1982 172 42,521 4,314 10.10% 120,879 11,134 9.20% 1980 - 1981 171 42,296 4,124 9.80% 119,501 10,575 8.80% 1979 - 1980 169 40,717 3,825 9.40% 117,297 10,013 8.50% 1978 - 1979 167 40,479 3,801 9.40% 116,150 9,952 8.60% 1977 - 1978 163 39,676 3,574 9.00% 113,080 9,580 8.50% 1976 - 1977 163 39,996 3,698 9.20% 112,401 9,589 8.50% 1975 - 1976 163 39,038 3,417 8.80% 111,047 8,712 7.80% 1974 - 1975 157 38,074 3,373 8.90% 105,708 8,372 7.90% 1973 - 1974 151 37,018 3,277 8.90% 101,675 7,601 7.50% 1972 - 1973 149 35,131 2,947 8.40% 98,042 6,730 6.90%

7 American Bar Association, Legal Education Statistics (2007), available at http://www.abanet.org/legaled/statistics/stats.pdf. 4 1971 - 1972 147 36,171 2,682 7.40% 91,225 5,568 6.10%

In the past ten years, total minority J.D. enrollment has increased by a paltry 2%

(compare that with an over 8% increase in the previous decade, 1997-1987). In addition, minority applications to law school were down 7.4% for the Fall of 2006 when compared with the previous year and have been on a steady decline for the past 2 years.8 The number of

Mexican-American applications has been on the decline for the past 3 years.9 Even more staggering is that Mexican-American admission to law school (those applicants actually admitted) has had either stagnant or negative growth for the past 8 years.10 These specific statistics are shocking considering that the Hispanic population represents the largest minority population in the nation.11

In response to the low participation of minorities in the legal education system, the

ABA’s Council of the Section of Legal Education and Admissions of the Bar adopted Standard

212. It mandates that law schools take a proactive approach in facilitating diversity in their respective student bodies. The text of the rule reads:

(a) Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity. (b) Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to

8 Law School Admission Council, Volume Summary by Ethnic & Gender Group (2007), available at http://members.lsacnet.org/. 9 Id. 10 Id. 11 U.S. Bureau of the Census, Table 1a. Projected Population of the United States, by Race and Hispanic Origin: 2000 to 2050 (2000), available at http://www.census.gov/ipc/www/usinterimproj/natprojtab01a.pdf (Hispanics, all inclusive of Mexican-Americans, Puerto Rican-Americans, Latinos, etc., currently represent over 12% of the U.S. population). 5 having a faculty and staff that are diverse with respect to gender, race and ethnicity.12

The ABA has also adopted supplemental interpretation amendments that specifically state that constitutional or statutory provisions prohibiting race as a factor in determining admission of a potential applicant is not a justification for any schools failure to construct a racially diverse student body consistent with the rule.13 There has been ample debate over Standard 212 and its ostensible contradiction to current Constitutional provisions minimizing the use of race as a determining factor in law school admissions.14 Some in the debate contend that the rule is in direct opposition to the Grutter decision and even further, many assert it aims to supersede the law of the Constitution in the interest of achieving diversity. So, while various law schools struggle to maintain some semblance of racial diversity in their student body (as mandated by the

ABA), there is an outcry by much of the public to discontinue any preferential treatment for minorities in determining admission status. The U.S. Commission on Civil Rights Briefing

Report, Affirmative Action in Law Schools, recommends that the ABA delete the requirement that law schools seeking accreditation demonstrate a commitment to diversity and instead let law schools develop their own educational mission.15 Indeed, there is even a call for totally race blind admissions policies.16

Some critics of race preferences contend that race blind admissions will actually increase black enrollment at law schools by eliminating the “academic mismatch” problem that occurs

12 American Bar Association, Standards for Approval of Law Schools (2007-2008), available at http://www.abanet.org/legaled/standards/20072008StandardsWebContent/Chapter%202.pdf. 13 American Bar Association, Interpretation 212-1, 212-2, 212-3 (2007), available at http://www.abanet.org/legaled/standards/standards.pdf. 14 U.S. Commission on Civil Rights Briefing Report, Affirmative Action in Law Schools (April 2007), available at http://www.usccr.gov/. 15 Id. 16 Texas, Michigan, and California are states that have voted to ban any race preferential treatment in public institutions. 6 with race preferences.17 Mismatch occurs when schools admit students who are not otherwise academically qualified to attend.18 The theoretical natural consequence is the high failure rate of minority students because they are unable to compete at a level on par with the average incoming student of that particular school.19

Much of the rational for opposing race as a factor in determining admissions hinges on two basic assumptions: 1) the average qualifications of white applicants attending that school also describe the qualifications of white applicants displaced by minority acceptance; and 2) when a white applicant denied admission has a higher LSAT or Undergraduate Grade Point

Average (UGPA) than an admitted minority applicant, race was the only determining factor affecting the admission of the minority student over the white student.20 Some research suggests these assumptions are unfounded.21

It is exceedingly difficult to identify all the reasons minorities fail in law school at a higher rate relative to whites. However, one of the most common explanations given is that, due to race preferences, minorities are enrolled in law schools that are too hard for there comparative ability.22 The contention is that a minority student admitted into a lower ranked school will have a higher rate of success, not only academically while in school, but also have a higher probability of passing the bar. Why? The student is no smarter at the lower ranked school than at the higher ranked school. The subject matter is essentially the same from school to school; one learns the law. Therefore, if a student fails at one school where she arguably could have succeeded at

17 Richard Sander, A Systematic Analysis of Affirmative Action in Law Schools, 57 Stan. L. Rev. 357 (2004). 18 U.S. Commission on Civil Rights Briefing Report, supra note 14, at 9. 19 Id. 20 Linda Wightman, Are Other Things Essentially Equal?, 28 Sw. U. L. Rev. 1, 4 (1998). 21 See Id.,(indicating that the credentials of the average white student are not indicative of the credentials of white students who would have been admitted if those students in which race were a factor were denied access). 22 See Sander, supra note 17. 7 another, it is the school’s blunder for not properly teaching the student. Consequently, resting blame on the “under-qualified” student for her failure is improper, unfair, and misplaced. It is not the student’s shortcomings that have been revealed, but the school’s inadequacies.

A common response to this argument is that with collectively “smarter” students the teacher can move faster and cover more material without slowing down to bring the “under- qualified” students along. This argument also fails. There are many ways teachers can move at an expeditious rate without leaving the lower ranked students behind. The teacher can assign mandatory homework, give quizzes, and require extra mandatory tutorials (outside of class) depending on the grades of those assignments. Therefore, the students that pick up the subject matter faster are not burdened by the students that do not. It is well within a professor’s discretion, even further, it should be within the professor’s duty as a steward of jurisprudence.23

The argument against totally race blind admissions contend that race blind admissions will decrease black enrollment.24 For example, out of 8200 black LSAT test takers in 1997-1998 only 20 scored 170 or above, the average score for entering Yale law students.25 This suggests that if race blind admissions were the norm, there would not be enough blacks to go around at the most elite law schools. Though a top ranked law school may be more vulnerable to this situation because of the high standards set for admission, it may be possible in any tier of the law school spectrum.

23 Of course, the contention is not that any student should be admitted to every school. Only that given the make-up of a law class in any given year, it is the teacher’s responsibility to teach (and to do everything in her power to give students the opportunity to learn). 24 Id. at 186. 25 The Importance of Preserving a Core of African Americans at the Most Prestigious Law Schools, The Journal of Blacks in Higher Education, Winter 1999, No. 26 at 22-23. 8 There seems to be little doubt that race blind admissions would effectively decrease the enrollment of minority students.26 There is much research to support the proposition and there is even a real world example in California.27 In 1996, California voters passed Proposition 209, an initiative banning any preferential treatment in determining the admissions of students based on race.28 After passing, by 2005 African-Americans composed only 3.2 percent of the student body at UCLA, a drop from 6.6 percent in 1995, which the university attributed to Proposition 209.29

The admit rate for black applicants was 25 to 30 percent less than that for white or Asian students (most noteworthy were the declines in California law schools where enrollment of

African-Americans decreased by 63 percent, and Latinos by 34 percent).30 The unfortunate result culminated in only one entering black in the Berkeley Doak School of Law the year following

209’s passage.31

Still, the ABA has required law schools to be racially diverse or suffer the loss of accreditation, which brings with it in most cases the inability of students from that particular school to sit for the bar. The ABA’s mandated pro-active approach is vital in facilitating increased minority enrollment in law school. It offers some relief by forcing law schools to be more receptive to minority applicants.

26 Id. 27 Peter Applebome, Minority Law School Enrollment Plunges in California and Texas, N.Y. Times, June 28, 1997. 28 Id. 29 American Council on Education, Making the Case for Affirmative Action in Higher Education (2002), available at http://www.acenet.edu/. 30 Id. 31 It is important to note that this student had deferred his admission from the previous year. In addition, Berkeley invited fourteen (14) blacks to attend the same year. Further, while minority enrollment decreased across the board in the higher ranked public California schools, it slightly increased in lower ranked public and private California universities. See Berkeley Chancellor Vows to Increase Minority Enrollment, Black Issues in Higher Education, May 2005; and Peter Applebome, supra note 25. 9 There is ever increasing debate over the role of preferences in law school admissions based on race. However, in Grutter the Supreme Court determined that there can be some limited use of race in determining what students to admit to law school.32 The Court emphasized the importance of future leaders to have a sound understanding of diverse cultures and ideas, and concluded that diversity in law school accomplishes that end. As such, race as a factor for admissions should never be totally abolished. Diversity is always essential to the educational mission.

POLICY IMPLEMENTATION What policies should the government enact to bring about change in this arena?

Specifically, what must the government do to encourage greater minority enrollment in law school? Identifying some of the corresponding problems with minority enrollment and participation will better equip the government to intervene in a positive way. Some modest changes in an effort to facilitate greater minority enrollment may include strengthening the elementary and secondary education system in poor communities (disproportionately dominated by minorities), tighter control of law school costs and financial aid, and changing the Law

School Admission Test (LSAT) scoring paradigm.

STRENGTHEN THE ELEMENTARY AND SECONDARY EDUCATION SYSTEM. The most fundamental problem relating to minority enrollment is the significant education gap experienced during elementary and secondary education. Low-income minorities tend to fall behind because of poorer schools, and data suggests that they have a hard time catching up, if at all, at least on an academic level.33 This academic “handicap” experienced by

32 See Grutter v. Bollinger, , 539 U.S. 306, 123 S. Ct. 2325. 33 See Bendor, Bordoff., and Furman, An Education Strategy to Promote Opportunity, Prosperity, and Growth, The Hamilton Project Strategy Paper (February 2007). 10 low-income minorities results in under-preparation for college and post graduate education relative to other students. As such, low minority enrollment may be attributable to the fact that minorities disproportionately dominate the lower income brackets, which are disproportionately served by underachieving schools.

Even after adjusting for the differences in educational background and preparation, the disparity is still staggering.34 Students in the lower income quintiles exhibit far less participation in higher education than those in the higher income quintiles.35 Because disparity in college- going students by socioeconomic status is on the rise, preparing young children from poor families should be the highest educational priority.36 If the government can level the playing field early, the enrollment gap may right itself.

An important step the government could take to make the competition for law school admission fairer would be to strengthen and reform the elementary and secondary education system so that it helps compensate for differences in socioeconomic background. Americans tends to believe that anyone who works hard and plays by the rules has equal opportunity for success. Unfortunately, this is just not true. How much opportunity really exists? Because government cannot control the socioeconomic status of any particular student, the idea of equal chance at success, at least initially, seems unrealistic. However, because government can mitigate some barriers associated with socioeconomic status post hoc, equality should still be

34 See Isabel Sawhill, Opportunity in America, Brookings Institute Policy Brief (Fall 2006), available at http://www.brookings.edu/~/media/Files/rc/papers/2006/fall_childrenfamilies_sawhill/20060913foc.pdf. 35 Id. at 5 (82% of high school graduates from families in the highest quintile attend college while 54% of students from families in the lowest quintile choose to attend). 36 Id. at 4. 11 within a student’s reach.37 A society with abundant opportunity should afford a child the chance to succeed irrespective financial circumstances.38

Education creates opportunity that equalizes the playing field. The problem, of course, is gaining access to the opportunity to get an education that creates the opportunity in achieving success. By leveling the playing field, the government can achieve the first goal, which may have a domino effect on the latter.

Education establishes upward mobility and equalized footing for minorities. Therefore, the government must better prepare low-income students at the pre-college education level.

Creating parity on the secondary and elementary education level will allow minorities to be in a better position to complete college and compete for law school admission. This will not only facilitate a larger and better pool of qualified minority applicants but will also increase matriculation and bar passage rates of minorities.

CONTROL LAW SCHOOL COSTS AND FINANCIAL AID Most low-income families cannot afford the cost of college. Government subsidies and student loan allotments have not kept up with the rising costs of tuition.39 Some research indicates the reason for low minority enrollment is the exorbitant cost of tuition and the relatively low income of minorities.40 Minorities disproportionately represent the lowest income class.41 Therefore, the outlay of expenses in obtaining a legal education imposes a higher demand on minorities. Not only are minorities unwilling to foot the bill for the high cost of law school,

37 Specifically, government can mitigate some barriers (i.e. under-achieving schools, teacher shortages, technology gaps, etc.) associated with low-income socioeconomic status by increasing relative funding in poor communities. 38 Id. at 2. 39 Tuition as opposed to government subsidies. 40 U.S. Commission on Civil Rights Briefing Report, supra note 14, at 77. 41 Id. 12 but often times, they just cannot afford it. Tables 2 – 4 below note the rising cost of tuition among Resident, Non-Resident, and Private law school tuition.

TABLE 2: Resident Student Public Tuition42 # of Avg. % Median % Year Schools Tuition change Tuition change 1985 74 $2,006 $1,792 1986 74 $2,206 10% $1,969 10% 1987 74 $2,398 9% $2,124 8% 1988 74 $2,608 9% $2,267 7% 1989 74 $2,916 12% $2,573 13% 1990 74 $3,236 11% $3,012 17% 1992 75 $4,015 12% $3,537 10% 1993 75 $4,418 10% $4,086 16% 1994 76 $5,016 14% $4,397 8% 1995 76 $5,530 10% $4,879 11% 1996 74 $5,955 8% $5,269 8% 1997 76 $6,521 10% $5,956 13% 1998 77 $6,943 6% $6,501 9% 1999 77 $7,367 6% $6,752 4% 2000 78 $7,790 6% $7,201 7% 2001 78 $8,419 8% $7,738 7% 2002 78 $9,392 12% $9,252 20% 2003 78 $10,819 15% $9,979 8% 2004 80 $11,860 10% $11,012 10% 2005 80 $13,145 11% $12,107 10% 2006 80 $14,245 8% $13,107 8%

TABLE 3: Public School Non-Resident43 # of Avg. % Median % Year Schools Tuition change Tuition change 1985 74 $4,724 $4,786 1986 74 $5,160 9% $5,300 11% 1987 74 $5,616 9% $5,706 8% 1988 74 $6,017 7% $5,930 4% 1989 74 $6,759 12% $6,687 13% 1990 74 $7,365 9% $7,390 11% 1992 75 $9,070 10% $8,850 11% 1993 75 $9,763 8% $9,640 9% 1994 76 $10,667 9% $10,785 12% 1995 76 $11,683 10% $11,656 8% 1996 74 $12,419 6% $12,275 5%

42 American Bar Association, Legal Education Statistics (2007), available at http://www.abanet.org/legaled/statistics/stats.pdf. 43 Id. 13 1997 76 $13,234 7% $13,297 8% 1998 77 $14,056 6% $14,220 7% 1999 77 $14,754 5% $15,152 7% 2000 78 $15,683 6% $16,113 6% 2001 78 $16,643 6% $17,538 9% 2002 78 $18,146 9% $18,650 6% 2003 78 $20,171 11% $20,110 8% 2004 80 $21,905 9% $21,458 7% 2005 80 $22,987 5% $23,506 10% 2006 80 $25,227 10% $25,262 8%

TABLE 4: Private School44 # of Avg. % Median % Year Schools Tuition change Tuition change 1985 101 $7,526 $7,385 1986 100 $8,225 9% $8,046 9% 1987 99 $8,911 8% $8,690 8% 1988 100 $9,652 8% $9,577 10% 1989 101 $10,620 10% $10,446 9% 1990 101 $11,728 10% $11,680 12% 1992 101 $13,730 8% $14,204 9% 1993 99 $14,828 8% $14,812 4% 1994 102 $15,835 7% $15,965 8% 1995 103 $16,798 6% $16,930 6% 1996 103 $17,785 6% $17,983 6% 1997 102 $18,726 5% $19,038 6% 1998 104 $19,693 5% $19,880 4% 1999 105 $20,709 5% $20,940 5% 2000 105 $21,790 5% $21,920 5% 2001 106 $22,961 5% $22,870 4% 2002 108 $24,193 5% $24,228 6% 2003 109 $25,574 6% $25,500 5% 2004 108 $26,952 5% $27,005 6% 2005 111 $28,900 7% $28,670 6% 2006 115 $30,520 7% $30,670 6%

The average cost of tuition even in the historically lower priced public institutions has risen at a rate of no less than 8% for residents and 5% for non-residents over the past six years.

44 Id. 14 Even private institutions have raised costs at a level that outpaces inflation.45 Those in the lowest income brackets simply cannot keep up.

It is important to note that law school tuition has never reached equilibrium in the market.

Considering that there are a limited number of seats available for incoming law students in any given year, and that there are always more students that apply to law school than are accepted, the only natural conclusion is that there is always a potential student willing to pay for a seat. As such, law schools have always been able to increase tuition from year to year. Consider the following graph:

GRAPH 1: Market for Seats in Law School

Q1 Q* Q2

P* and Q* reflect the equilibrium that would occur if quantity supplied of seats in law school equaled quantity demanded (in any given year). If indeed that were a true characterization of the market for law school seats, it follows that schools would be reluctant to increase tuition every year by the 5-8% that has become the norm. Such increases would only result in price

45 Inflation has averaged 2.5% over the past 10 years. See U.S. Bureau of Labor and Statistics, Consumer Price Index All Urban Consumers (2007), available at ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt. 15 rising to some level above P*, causing quantity supplied of seats to outpace the quantity demanded (causing prices to fall). However, because of the unique market of more students willing to go to law school (and pay tuition) than there are seats, in any given year, price is always somewhere around P1 (below the equilibrium). There are always more seats demanded

(Q2) than there are seats supplied (Q1).46 This hypothesis is supported by the consistent yearly increases in law school tuition noted in tables 2 - 4. Further, support is also found in the Law

School Admission Council (LSAC) statistics on applicants and admittants to law school (the former is always greater).47

At any rate, currently the most a student can receive in government-backed student loans is $20,500 per year. The interest associated with the loans are constantly compounding.

However, under the current scheme the government pays the interest on the first $8,500 of the

$20,500 student loan while the student is in school, and even up to six months after the student graduates.48

The current amount covers a resident student that chooses to attend a public school.

However, it is insufficient in covering the cost of non-resident students or those students who choose to attend a private university.49 Granted, students have available to them the option of borrowing through the Parent Loan for Undergraduate Students (PLUS) program to make up the difference between where the government leaves off and the school starts, however such loans

46 A better characterization of the supply curve may be a vertical line connoting a fixed supply of seats in any given year. 47 See Law School Admission Council, supra note 8 (in the Fall of 2006 there were 87,000 applicants and only 56,000 admittants to law school). 48 The Department of Education, Student Aid on the Web (2007), available at http://studentaid.ed.gov/PORTALSWebApp/students/english/studentloans.jsp?tab=funding. 49 Just as with federal grants, government should assess each individual applicant to determine assistance based on need. This will restrict taxes subsidizing rich students that choose to attend private universities. 16 require credit approval and offer significantly higher non-deferred interest rates.50 The necessary implication is that low-income students are discriminated in several ways: 1) they do not have sufficient credit history to qualify for the PLUS loan plan, 2) students are turned off by the high amount of unsubsidized interest and, 3) students are unreceptive and intimidated by the large amount of debt acquired at the onset of obtaining such a loan.

Therefore, the federal government should require law schools to limit the amount that tuition can be increased in any given year. Giving this responsibility to the federal government will allow the policy to capture all institutions (private and public) as well as allow for the standardized regulation of tuition. The federal government could essentially place a “rent control” on law school tuition. This would slow tuition increases and still allow for some market- determined pricing.

As such, law schools should not be able to increase tuition in any given year to that more than 1.5 times that of inflation from the previous year. If this method of price control was realized the average increase for law schools would not be more than 3.75% over the past six years. This policy would ease, at least in the long-run, the rising cost of tuition and allow more minorities to be able to afford a legal education.

RESTRUCTURE THE LSAT SCORING PARADIGM. Minorities consistently score lower than whites do on the LSAT exam.51 Although the

LSAT covers and measures various types of critical thinking and reasoning ability (i.e. reading comprehension, logical reasoning, analytical reasoning), the test only presents a single compiled

50 Id. at http://studentaid.ed.gov/PORTALSWebApp/students/english/PlusLoansGradProfstudents.jsp. 51 See William C. Kidder, Does the LSAT Mirror or Magnify Racial and Ethnic Differences in Educational Attainment, 89 Cal. L. Rev. 4 (July 2001) (finding that even when controlling for UGPA, institutional rank, and basic academic merit, on average, African-Americans, Hispanics, Native-Americans, and Asian-Americans score 9, 7, 4, and 2 points lower than whites on the LSAT, respectively). 17 score. The problem is that the LSAT may actually measure distinguishable aspects of reasoning ability.52

The way the test is scored now necessarily casts a blanket driftnet over students who may do exceedingly well in one area (making them more apt to do better at a particular school) and not so well in another area. This presents a problem for students when applying to law school.

Some schools may structure their educational plan in such a way that is more conducive to one type of ability realizing success over another. Restructuring the LSAT grading paradigm may yield better success for a student in law school that has strengths in a particular area. For examples, a school focused on turning out academics may weight analytical reasoning higher, a school focused on turning out litigators may weigh logical reasoning highest, and a school focused on turning out transactional attorneys may weigh reading comprehension higher.

Indeed, a student may have the ability to do very well in a particular school based on the teaching methods and style of that school. With the current scoring structure, a student may be denied admission when scoring high on one distinguishable part of the exam because the relative score on the other parts of the test are so low that it brings the LSAT score below the minimum level required to get presumptive admission to that school. Therefore, the current method is inefficient. It not only mis-signals an applicant’s true strength, but also fails to pair the most capable students to the most compatible schools.

Breaking up the LSAT score into two, or even three different measures may mitigate some of this driftnet effect. If the LSAT score were more particularized, and schools were directed by the ABA to make available what weight they give the differing portions of the exam

52 Wilson and Powers Law School Admission Council Statistical Report, Factors in Performance on the LSAT (1994), available at http://members.lsacnet.org/. 18 in determining admissions, the admissions process would be more efficient. It would allow law schools to pick students more in line with their educational philosophy and mission, thereby increasing the likelihood of a student’s matriculation and raising the probability of passing bar.

More importantly, it would allow minority students to better ascertain which schools to apply to. Establishing this degree of transparency would allow students to apply to schools based on their strongest abilities. It would decrease a certain degree ambiguity in the admissions process.

Greasing the wheels of the application process by allowing students to see what schools they are more likely or not to get admitted to based on the weight schools give the varying scores would eliminate, to some extent, the useless need to apply to schools that are outside the scope of a students strongest abilities. If nothing at all it eliminates undue application fees. Therefore, by mandating that the Law School Admission Council compartmentalize LSAT scores, the ABA can effectively increase the probability of acceptance of any individual student, increase minority enrollment, and consequently increase the probability of matriculation.53

CONCLUSION AND REMARKS Interestingly, currently the most practical idea for any student, irrespective of race, may be to attend the school where their grades will be the highest (not necessarily the most prestigious school). More and more firms are hiring students from the top of the class, irrespective of law school prestige. This actually incentivizes students to attend schools in which

53 The Department of Education has selected the ABA as the accrediting agency for law schools. Therefore, the government can mandate that the ABA provide a more thorough scoring analysis of student capabilities in standardized testing, thereby forcing the ABA to either institute a new exam or force the Law School Admissions Council to restructure the LSAT. See American Bar Association, The American Bar Association Law School Approval Process (2007), available at http://www.abanet.org/legaled/accreditation/abarole.html. 19 they will excel academically relative to their peers rather than attending a school that carries more prestige but brings with it the probability of finishing in the middle or bottom of the pack.

Notwithstanding, the Supreme Court stated that law school creates our nation’s leaders and that diversity is key to being a successful well-rounded leader appreciative of varying viewpoints and perspectives. In order to produce leaders that value the diverse peoples, cultures, and ideas of the melting pot that is America, law school must encompass those individuals that are from a wide array of backgrounds associated with that melting pot.

The government policy recommendations in this paper would help spur increased minority enrollment into the legal educational system. Good preparation will increase the ability of minorities to compete for seats in higher education institutions but will not solve the problem alone. The barrier holding back students in the low-income distribution bracket is the lack of the availability of quality education. Ironically, it seems that an education that breaks down the barriers that affords a student the opportunity to compete and become successful in law school only goes to those families in the top quartile of income, the very students that are not confronted with those barriers. By providing a fairer distribution of quality education among income quintiles, the government can afford more minorities the ability to compete at the higher education level.

The American economy has grown rapidly in the last decade.54 Research indicates investment in education yields higher economic growth by creating a highly skilled labor force that generates increases in productivity.55 Furthermore, investment in education yields significant returns for individuals later on in life. Over the course of an entire working lifetime, a person

54 Real GDP has increased approximately 30%. See U.S. Bureau of Economic Analysis, National Economic Accounts (2007), available at http://www.bea.gov/national/index.htm#gdp. 55 Bendor, Bordoff., and Furman, supra note 33, at 3. 20 with a law degree will earn almost $750,000 more than someone with only a high school diploma.56 However, with the initial outlay of expenses associated with obtaining a law degree, many otherwise capable minority students forgo pursuing legal education. If the government mandates a cap on tuition increases, then many students may find the idea of attaining a law degree more appealing.

In addition, there is entirely too much reliance on the LSAT in determining admissions.57

Most schools weigh the score of the LSAT too heavily with respect to other qualities a candidate may have to offer. Therefore, by changing the LSAT scoring procedure, government can alleviate the inherent indistinguishable bias problem associated with the current system and go further in achieving the goal of racial and ethnic diversity in law school.

In the end, with the help of these policies, the government can aid in closing the gap between white and minority enrollment in law school.

56 Liz Weston, Columnist MSN Money, University of Wisconsin River Falls Report, Will Your Degree Pay For Itself (August 2004), available at http://www.uwrf.edu/admissions/Degree_to_Income.pdf. 57 William C. Kidder, supra note 48 (most law schools weigh the LSAT/UGPA on a 60/40 index). 21