TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Wednesday, September 13, 2017

Diamond: Does The California State Bar Have A Race Problem?

California State Bar (2014)Stephen Diamond (Santa Clara), Does the California State Bar Have a Race Problem?:

A recent meeting of the State Bar’s Committee of Bar Examiners (CBE) suggests to me that the California Bar may have a problem with race. That is, its leaders do not understand or are not willing to accept that they are putting up a barrier to minorities who wish to practice law. The evidence of this potential problem is found in the tape of the hearing which you can view here as well as a report prepared by the Bar Association’s staff on the bar exam. ...

[W]hile we do not know why the cut score is so much higher than needed to meet the primary mandate of the CBE (protection of the public), we do know that by setting it at 144 the Bar has put up a wall over which minority law school graduates have difficulty climbing with the inevitable outcome: a disparate impact on those hopeful new law school graduates. ...

[G]iven the very high cut score in California, many students require several expensive and demoralizing attempts to pass the bar and thus are unable to get jobs as lawyers in those first ten months. Yet, many of those students will, in fact, eventually pass. They are only forced to delay their careers at great personal expense because of California’s irrational and baseless high passing score ...

Hopefully, the Court will do the right thing and begin the process of restructuring the State Bar, including its committee structure and current leadership. At a minimum, they should ignore the self-serving surveys conducted by the current Bar and 1) temporarily lower the cut score to the same level as New York (133 as opposed to its current 144); and 2) appoint a blue ribbon independent commission chaired by Dean Ferruolo of the University of San Diego School of Law to conduct a thorough study of the purpose, impact and structure of the bar exam with a mandate to propose any and all changes needed to improve access to, and effectiveness of, the legal profession in California.

http://taxprof.typepad.com/taxprof_blog/2017/09/diamond-does-the-california-state-bar-have-a-race-problem.html

Legal Education | Permalink

Comments

It is not the California Bar that is racist, it is the admissions/financial aid model of most law schools. For about a decade law schools have had a financial aid model of giving "merit" scholarships to students with high lsats and gpas so that the school can move up in us news. This meant that people of color who had lower lsats and gpas payed full price while well-off whites and asians got a full or cheaper ride. Law schools ignored this obviously and significant racial impact. People of color paid more so law schools could attract students who had advantages all their lives. Next the law schools started admitting students with lower lsats and gpas to fill their declining classes. Studies had predicted that students with low lsats failed the bar at a much higher rate than those with higher lsats but this didn't figure into the calculation because law schools needed to fill seats. When bar pass rates started plunging law schools blamed it on the test. Many of those who failed the bar were people of color. These students were stuck with heavy debts but no way to pay off the debt. As bar rates continued to plunge schools could no longer blame the bar exam. Potential students became wiser and avoided law school and some law schools closed while others faced severe budget cuts.

Now some California law schools are facing a bleak future. Whittier is closing and applications and bar pass rates continue to plunge. But law schools have come up with a new solution, Lower the Bar. Law schools hadn't complained about the California cutoff before but now that they are facing further closures and cuts they are.

What would a lower bar pass rate do for students of color? Well it would let more of them pass the bar. But would it really do anything for them? Are there any jobs for these additional bar passers? Is the discrimination continuing but further down the pipe line. Who will suffer if the additional bar passers can't get jobs? Once again the students of color! If law schools want to lower the bar they need to show that the additional bar passers will get jobs. Otherwise they are discriminating against people of color.

If law schools want to help students of color I suggest that they eliminate all or most merit scholarships and instead re-route this aid to students based on need. This will help people of color while lowering the bar rate with no new jobs will not.

Posted by: Debbie | Sep 13, 2017 2:48:53 PM

Debbie's comment is excellent, accurate, and a moral condemnation of how law schools have been functioning as the faculty and administrations scramble to save their jobs.

Posted by: David | Sep 13, 2017 6:50:39 PM

Law school has been a scam in the recent past. It was not in the distant past and need not be a scam in the future. Faculty, right this ship.

Posted by: Jojo | Sep 14, 2017 5:35:56 AM

So kids from middle class or poor homes who excel in school should no longer be rewarded with scholarships?

Posted by: Jeff | Sep 14, 2017 6:38:46 AM

The University of La Verne College of Law eliminated that discriminatory policy (by which lower-LSAT students subsidize higher-LSAT students) a number of years ago. It can be done. In addition, California law deans have been complaining about California's cut scores for years and years - it is NOT correct to say that it is a recent issue (just recently covered). What Debbie has missed is that if students of color disproportionately require a second attempt at the bar, they miss out on jobs that get filled by those who passed the first time around. There don't need to be MORE jobs to assist students of color (who ultimately pass, after all) - they just need to have equal access to them. Even if the number of unemployed JD holders does not change, the ethnic/racial composition of the employed and unemployed will more fairly reflect the entire group, instead of unemployment being disproportionately concentrated among lawyers of color.

Posted by: Diane Klein | Sep 14, 2017 6:46:15 AM

Jesus, I usually agree with the professor, but this is nuts. Shall we give them all trophies, too?

I went to U of Iowa law school and graduated with honors (86), packed my car, drove to California, studied for the bar, and passed it the first time. Why? Because I was a good student, I worked my butt off, and could read, write, and think clearly and logically--i.e., I had the ability to be a good lawyer.

Tell me, who are the racists? Those who see "color" everywhere they look, or those who see individual human beings regardless of how much God-dye is in their skin?

The solution is not to lower standards to allow more less qualified people practice because #color! and then inflict their poor skills on the rest of the state. It is to address the reason why the average minority is less qualified. Could it be the government has replaced dad in the home, our schools stink, and one party (and much of the second) are fine keeping them on economic plantations in the city so they vote every two years in return for a check?

Return to standards and demand excellence. If you can't pass, go do something else.

Posted by: tps | Sep 14, 2017 7:08:08 AM

The bell curve has consequences, and mismatch doesn't actually help these trends.

Diane proposes accelerating mismatch even more. The reality is people of color are already given huge scholarships to go to schools closer to their lsat score, but often will take offers where they are two standard deviations from the lsat mean in order to attain greater degree prestige. That isn't the result of covert conspiracy but personal choice combine with racial preferences. Acess itself is not the issue, and reality that the lsat predicts both iq and bar performance isnt either.

Posted by: Bobby | Sep 14, 2017 7:12:27 AM

As a non-attorney, I don't profess to have any knowledge about what bar exam score (133 or 144) separates the competent from the incompetent attorneys. It strikes me that if 133 is good enough for New York and the rest of the country, it's probably good enough for California. It seems quite odd to me, though, to criticize merit-based scholarships. I would really hope that law schools would encourage the most able students to attend their schools. In choosing an attorney, I will always be hoping I have the most capable one I can get, and it seems that merit-based scholarships would help the best students to attend law school.

Posted by: Steve | Sep 14, 2017 7:38:39 AM

The predominate effect of lowering the bar just so that more minorities can pass will be admitting a vast number of additional white and Asian candidates at a lower threshold. Of course this is precisely what Steve Diamond hopes to achieve. The real goal here is to bolster overall pass rates for his struggling law school, and that won't be accomplished by increasing the pass rate of just minorities, who make up only a tiny number of each graduating class.

In academia, every decision has to be made first in foremost by considering how it will increase diversity. Outside of making money, it is the only credible goal for some reason. Not that way in the real world. People don't really care that much.

Posted by: JM | Sep 14, 2017 7:41:26 AM

Do law school surrogates have an intellectual honesty problem?

Clearly.

Posted by: Anon | Sep 14, 2017 9:19:13 AM

"If law schools want to help students of color I suggest that they eliminate all or most merit scholarships and instead re-route this aid to students based on need."

And what should law schools do if they want to help consumers of legal services?

Posted by: bobby b | Sep 15, 2017 8:09:13 AM

Bobby, if more law students can become lawyers then the supply of lawyers will increase and the cost of legal services should decline which helps consumers. And as the Bar itself admits with no increase in risk of disciplinary actions against lawyers.

Posted by: Steve Diamond | Sep 15, 2017 10:37:13 PM

Post a comment