Paul L. Caron

Wednesday, October 8, 2008

Arizona, Arizona State & Nebraska Law Schools Accused of Discrimination Against White Applicants

The Center for Equal Opportunity issued a report today accusing Nebraska law school of engaging in racial discrimination by impermissibly favoring black and Hispanic applicants over white applicants.  Last week, the group issued similar reports on Arizona and Arizona State law schools.  (Nebraska is one of the states with a proposed ban on the use of affirmative action by state agencies on the ballot; supporters failed to gather sufficient signatures to get a similar ban on the ballot in Arizona.)  For more, see the Chronicle of Higher Education (Part I (Arizona & Arizona State), Part II (Nebraska)).

Below the fold are the charts in the reports showing the 25%, 50% and 75th percentile LSAT scores of Black, Hispanic, Asian, and White admittees at Arizona, Arizona State, and Nebraska:




Update: See today's Inside Higher Ed:  Is Affirmative Action in Decline or Out of Control?, by Scott Jaschik

With voters in Colorado and Nebraska preparing to vote on proposals to bar affirmative action, supporters and defenders of the consideration of race in admissions decisions are releasing new research to bolster their positions.

The Center for Equal Opportunity — a group that has worked for years to bar the consideration of race and ethnicity — on Wednesday issued findings about admissions to the law school at the University of Nebraska at Lincoln. Those data show significant race and ethnicity gaps in the LSAT scores and college grades of applicants who were admitted in recent years to the law school.

At the same time, two sociologists have just published an analysis suggesting that affirmative action is in decline — and has never been as widespread as some imagine in states that have barred the use of race in admissions decisions.

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I am a minority, and I graduated in the middle of my class from a top-ranked law school. But for affirmative action, it is highly unlikely that I would ever have been admitted to that law school based on my LSAT score alone. After two review cycles at a BigLaw firm, I have received nothing but superior evaluations. Had I graduated from a law school at which my LSAT score had been comparable to my fellow white students, it is unlikely that I would have been interviewed by this firm, even if I managed to graduate near the top of my class. Many students at my law school aced the LSAT, but were poor students in every other respect. I would not have trusted them to handle my legal affairs as practitioners. So the questions I pose are sincere ones, aimed at the heart of the issue behind this issue:

1. Is it acceptable for AmLaw 100 firms to discriminate based on law school ranking? (I think so - it is an effective sorting mechanism for new associates).

2. Is it acceptable for US News to have so much influence on legal hiring and education? (I find this problematic; but even if US News didn't, someone else would).

3. Accepting that firms rely on the US News rankings, should those rankings rely so heavily on the LSAT? (Again, if employers are to rely on the rankings as a mechanism for sorting associates, then it is necessary; the LSAT is a measure of raw intellect, and GPA a measure of determination. If a firm's business model is based on churning through intelligent associates who can't stand to work hard for more than a couple of years, then reliance on the LSAT is great. If the firm's model relies on cultivating good lawyers, then maybe GPA is a better indicator of success. I challenge posters here to look at the law schools that many BigLaw partners attended - compared to the education of the associates hired by those same firms, lower-ranked law schools are wildly overrepresented in the partnership).

4. Accepting that the rankings will continue to rely on the LSAT, what should a law school do? (A law school should have the courage to stand behind its convictions: that LSAT scores are not a good indicator of success in the legal profession; that minority law students who have strong professional and academic credentials, but low LSAT scores, will be successful attorneys; and that those successful attorneys will generously reward their alma mater. The consequence of this courage will be taking a hit to the school's US News ranking, which may influence the school's success at placing associates in BigLaw firms).

Regardless of how this is resolved, corporate clients are demanding diversity for a host of reasons (not the least of which is the changing demographic makeup of our country). If BigLaw firms are to satisfy this demand, they will have to either change the way they hire all associates, or change the way they hire minority associates.

Alternatively, we could seek to determine why certain minority groups score so poorly on the LSAT. I, for one, scored much higher on practice tests leading up to the LSAT than I did on exam day. I understand there is significant empirical evidence that minority students who suffer from stereotypes of race-based intellectual inferiority also suffer exam-day jitters. I don't believe that I am intellectually inferior to my white colleagues, but I do believe that every time I submit an assignment I must prove the intellectual worth of my entire minority group. The result is either efficiency self-sabotage or excellent work product, or maybe a bit of both.

Posted by: BigLaw Associate | Oct 10, 2008 6:16:22 AM

This is a reply I wrote to the Lincoln Journal Star newspaper, but I think it works well in this situation as well:

"As a former UNL law student, I can attest to the Center for Equal Opportunity's study is absolutely correct. The problem isn't so much in admitting underqualified minority students (although that is a problem), it's the fact the UNL gives them massive amounts of scholarship money they simply shouldn't receive.

For example, when a less qualified minority student comes the UNL on a full-ride scholarship and has failing grades at the end of their first year, the law school almost always invites them back, and gives them the same full-ride scholarship. That's right, they fail out and then are offered the exact same scholarship. (Aside: It happens very often that underqualified, full-ride minority students fail their first year. In fact, a couple years ago, almost all full-ride, underqualified minority students failed out. this is one reason there are so few minority students now.) The law school does not do this for strictly merit-based scholarship recipients, but they do so with less academically qualified minority students. If that doesn't violate the 14th Amendment of the Constitution I don't know what could.

And let's keep in mind, the law school discriminates in favor of certain minority groups and against others. Its diversity program targets relatively few Native Americans, Indians (i.e., people from India), Polynesians, or other Asians. No, the law school doles out the vast majority of its scholarship dollars to blacks Americans, and to some, but far fewer, Latinos. Thus, their discrimination is even discriminatory against most minorities. Again, I hear the 14th Amendment screaming, 'What the hell'!?

And, please, don't call me a racist for my assessment. I am the adoptive father of a black American son. All I want is for my son to be treated the same as everyone else before the law (which, incidentally, is what the Fourteenth Amendment mandates). The thought a government agency would give him scholarship money when he is less qualified than another Indian, Polynesian, white, or Asian (thereby taking away another's opportunity for a better future) is atrocious and morally repugnant.

Finally, as Chief Justice Roberts so eloquently penned: 'The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.'"

Posted by: Figo | Oct 9, 2008 4:58:47 PM

I appreciate the comments that have been left in response to my post.

Bill J: I think it is wrong to simply assume that she is admitted based on affirmative action. One must consider that average LSAT scores are not a barometer for success in law, but simply how quickly one can deconstruct a paragraph about six people finishing a sprint. You do not consider the real possibility that she is blowing the pants off of other people in her class because she is a hard worker and is actually mastering law. The reason she didn't score as high on the LSAT is because thinking in a non-native language doesn't allow her to deconstruct it as quickly as native speakers; it doesn't mean she can't do it, however, and it doesn't mean she possesses zero ability to think logically. How does your argument account for her high undergrad GPA if that were the case? I this particular case, I would say the UA admissions people saw her abilities as being greater than her LSAT score and weighed that appropriately.

Globalization: You are correct. Being bilingual is extremely helpful in dealing with clients, especially here in Arizona. That is the market she hopes to target given that Hispanics are majority population here. My question for Bill Johnson is: If you were Hispanic, would you rather go to an obnoxious, self-absorbed lawyer who doesn't understand what you're saying and therefore can't defend you properly, or a similarly good lawyer who speaks your language but can defend you in English? Sounds like a market advantage to me.

Success in law school is well connected to success on the bar exam, and the law school experience is much different than the LSAT. If there are many other Hispanics who do not pass it, then we should take a look at how well they did in law school, if they passed or failed the bar exam, and then tie that to affirmative action. A case can certainly be made there.

Some Associate: That's interesting about the reading/writing. She felt she did better on the writing than she did otherwise. The section she did the worst on was the game section.

Posted by: Robert Mayer | Oct 9, 2008 11:07:24 AM

Easy! You hire the better lawyer.

Documents can be translated, and translators can be hired when necessary hourly. But there is no easy fix for a sub-par legal mind.

Posted by: BiffyH | Oct 9, 2008 11:03:39 AM

I have to say that I am not terribly suprised by the data out of Arizona. I went there for undergrad and the affirmative action push by the Likin administration (late 90s to mid 00s) was nothing short of extraordinary. Bilingualism is a good skill to have in certain parts of Arizona for certain kinds of practices, (Southern Arizona and criminal practice, immigration, and maybe employer/employee law). However, if you take a look at the larger, more powerful firms in the state (Snell and Wilmer, Quarles, Lewis and Roca) that do the serious commercial litigation and transactional work, you will notice that they tend to employ only the excellent graduates from the state law schools, bilingual or not.

This however, does not excuse the apparently unabashed racisim in favor of black candidates. Black candidates are probably not any more likely to be bilingual than white students. Also, african americans make up only a very, very small proportion of Arizona residents. The most important point, and this is where I think it is valid to levy a charge of racism at the U of A administration: on average, the 75th percentile black student admitted to U of A has an LSAT score that is 1 point lower than the 25th percentile white student. This is a little absurd.

Now, U of A is a state school and is responsible for producing lawyers for the state of Arizona, so it makes some sense that they might try to match the racial make up of the school to the racial make up of the state. However, as mentioned, african americans form only a miniscule proportion of Arizona residents. This is pure affirmative action and calls into question whether or not the school is fulfilling its responsibility to the state to produce well qualified lawyers.

It would be interesting to see how many black students are actually admitted. If the number admitted with absurdly low LSAT scores, (155 or less --> the 25th percentile for hispanics and probably lower than all white admitees) accounts for a substantial portion of the class, then the University is failing in its mission and probably in violation of Grutter v. Bollinger and Gratz v. Bollinger. It might also be interesting to take a detailed look at the distribution of merit-based financial aid. If a black applicant with a 155 LSAT is admitted when a white student with a 160 is denied AND the black student is given more or even an equal amount in merit-based financial aid than a white student with a 161 or higher, then something is most definitely wrong. I would really like to see someone sue just so that some of this info could be exposed during discovery.

A previous poster was correct in noting that the Mexican-American Studies department at the U of A is extremely radical and enjoys considerable power, influence, and support from the administration. The administration's support of of such a radical department is indicative of a strong stance on affirmative action that may not be within constitutional boundaries.

That said, I am extremely happy that I turned down a full ride there to attend a much stronger and (I think) better balanced school. As long as U of A continues to admit poorly qualified canditates on any basis (skin color or other) they will extremely well qualified students, like myself, choose to go elsewhere.

Posted by: T16 3L | Oct 9, 2008 9:47:45 AM

Who would I hire? It depends on the job. If I was looking to hire a defense lawyer for criminal cases, it would be the spanish speaker. If I was looking for someone to do contracts, patents, civil cases, or anyhitng else but criminal law, I would hire the better qualified at logic candidate.

Posted by: ben | Oct 9, 2008 9:43:46 AM

Yes, affirmative action programs have this effect. By LSAT score, it is harder to get into law school if you are white than if you are black. But if we eliminated affirmative action programs, the result would be a dramatic decrease in the number of black students. Count me among those that think this would be a bigger problem.

Posted by: What matters more? | Oct 9, 2008 9:30:18 AM

If you want to cater to non-English speakers, hire the Hispanic girl. If you want a better lawyer, hire the white guy. If you want a society where being bi-lingual is a necessity, vote for amnesty policies and increased Hispanic immigration without any expectation of the immigrants learning English.

Posted by: John | Oct 9, 2008 9:24:16 AM

This is a dog bites man story. What would really be newsworthy would be a report about a law school that doesn't discriminate in favor of unqualified blacks and Hispanics. Law firms do the same thing and then have to hide the useless minority associates on big cases where their non-productive time can be billed to unsuspecting clients.

If Barack and Michelle Obama were white, they would have been advised not to waste money applying to Columbia, Princeton, and Harvard Law School, but to look at second and third tier universities. Racial discrimination catapulted them thousands of places up the college and law school admission ladders.

Posted by: Lawyer1 | Oct 9, 2008 9:19:40 AM

Re: English as second language applicants

The poster's GF, despite her low LSAT score, has the additional qualification of being bi-lingual.

If you do not think this gives her a HUGE advantage in practice, IN ARIZONA!, then you are delusional. It is more than reasonable for the school (and her future employers) to consider this.

Imagine the days before law school was mandatory and you could become an attorney by apprenticing (I don't think Justice Jackson ever attended law school). You are a law firm in Arizona. Two people have applied. One, an ambitious 22 year old white man good at logic. Two, a 22 year old woman of Mexican origin who is not quite as good at logic (or at least solving logic problems written in English) as the white man, equally ambitious, and she speaks fluent Spanish.

Who would you hire?

Posted by: globalization | Oct 9, 2008 8:57:34 AM

When the 75th percentile for blacks is equal to or lower than the 25th percentile for whites, maybe affirmative action supporters can finally give rest to the obvious lie that AA is merely designed to give a slight edge to the more "diverse" of two "equally qualified" candidates, or to make up for the fact that underrepresented minorities grew up poor and can't afford expensive LSAT prep programs (no prep test will boost your LSAT by 9 points compared to the inexpensive LSAT books).

Posted by: LZ | Oct 9, 2008 7:50:06 AM

So, let's get this right, the poster's girlfriend doesn't have a command of the English language but that's OK...she'll make a fine lawyer along with thousands of others immigrants who can't really read and write English even if they can't qualify on their LSATs. It's not like reading and writing is that important when drafting or reviewing contracts or understanding statutes. Huh, so long as we start to use Spanish for all our legal documents. Maybe that's the plan?

Posted by: American | Oct 9, 2008 7:18:14 AM

2L: Your explanation only makes sense if the English language requirements for performing well on the LSAT are higher than what you would need to do well in law school or as an associate. The only writing required on the LSAT is the writing sample, which no one cares about. Law school grades are based almost entirely on writing (though sometimes multiple choice shows up). Most non-native English speakers have a harder time writing than reading, so it would follow that schools should not compensate for Hispanics with lower LSAT scores. And, if they did, it would only be fair to give the same type of consideration to whites with uneducated parents who do not speak proper English at home or who regularly engage in logical fallacies.

Posted by: Some Associate | Oct 9, 2008 7:13:21 AM

The gentleman with the hispanic girlfriend raises an interesting point - that law is TOTALLY DEPENDENT on ENGLISH wording, phrasing and constructs - except when they get all haughty and descend into latin.

So non-english speakers are indeed at a disadvantage, and I submit, should be penalized for this disadvantage. How can one practice law in the US without great command of the English language? You gotta speak, write and CONVINCE.

So, thanks for the explanation of the lower hispanic scores. That does not, however, suggest to me that discriminatory admission to a law college will help the person. See all the other evidence of under-educated legal students in elite schools - gratuation rate, bar exams, etc.

When I need a lawyer, I want the best I can afford. I will not be considering an afffirmative-action lawyer.. I said I wanted the best, and affirmative action is not how the best are created/made/taught.

Bill J

Posted by: Bill Johnson | Oct 9, 2008 6:20:42 AM

This post is entirely unremarkable. The only thing surprising is that it implied every law school in the country isn't behaving the same way. If the Center for Equal Opportunity looked at any metropolitan area law school the results would be the same. Furthermore, the results would be even more pronounced if they looked at the part-time student LSAT scores.

This isn't to say, however, that the law schools are doing anything wrong. If the law schools are deciding to put less emphasis on LSAT scores and more on GPA's and student personalities, then good for them. BUT, if the law schools are doing this they should be more explicit about the change in admission criteria and should argue their admission criteria is more appropriate. rather then be sneaky about it so as to cast a nefarious shadow over the whole process.

Posted by: | Oct 9, 2008 6:05:13 AM

For Heaven's sake! It's obviously a coincidence. Random variation, nothing more. And I have to admit that I'm a little concerned with your sudden obsession with race, Herr Professor. Your "white privilege" getting tweaked? Troubled by all the non-dollar bill faces on campus?

I thought so. Sad that you can't set aside your unconscious (I'm being generous here) racism and celebrate a little diversity on campus.

Posted by: Mike | Oct 9, 2008 6:02:06 AM

Nothing new. Something similar to this happened at Georgetown a few years back. As I recall, they tried to expell a kid for revealing that the black students had something like 20% lower scores on the LSAT. When I was in the larvae stage myself, a friend in the admissions office confided that the affirmative action program at a fairly good school had resulted in my class having something like 10% black students, almost none of whom achieved the median LSAT score for whites or asians.

Personally, I'm not racist in the least, but it's hard to forget those sorts of things when you're in practice.

Posted by: Someone | Oct 9, 2008 5:18:06 AM

There is no question that affirmative action results in black and hispanic students who do not have academic qualifications equivalent to white students being admitted. In law school, you have an objective measure at the end of the day: the bar examination.

When I was at UCLA Law School some decades ago, about 20% of the class consisted of affirmative action admits (~10% black, ~10% hispanic). I learned through work in the admissions office that in my own class, of that group, only 1 would have been admitted without affirmative action (and that person had left the race box blank on the application). Law school performance reflected this, with NO blacks or hispanics on Law Review or Coif, and with first time bar passage rates reputed to be 95+% for whites, around 60% for blacks and somewhat lower for hispanics.

Posted by: CatoRenasci | Oct 9, 2008 4:48:50 AM

Okay, as long as they don't do something like this for something important--like neurosurgery or cardiothoracic surgery training programs. Or electing a president.

Posted by: Alyssa van Finkelmaas | Oct 8, 2008 8:19:15 PM

Yes, but if they don't do this will the ABA pull their accreditation, under the ABA's mandated quota system?

Posted by: Boris | Oct 8, 2008 7:07:42 PM

This sort of thing is endemic on campuses. I attended an Ivy League school and the only way that certain groups - admitted only with the aid of vastly lower standards - could manage to graduate was by the creation of special programs.

If affirmative action was used to place me in a classical orchestra, or on a basketball court, or in the UFC doing MMA, the train wreck that would follow seconds later would be more than enough for everyone to realize how stupid the idea is.

...but when it comes to higher education, not only are admission standards rewritten, but then the metrics of success are changed, and the data is obfuscated and obscured so that folks find it hard document reality.

The result is that anyone who does announce that the emperor has no clothes is labelled a racist.

Posted by: TJIC | Oct 8, 2008 7:01:40 PM

When you have "morlocks' in tenured position at this universities! No surprise!!

Posted by: Boris | Oct 8, 2008 6:41:53 PM

Tucson (where I live) is majority Hispanic, so it makes sense that 1/3 of the law school would be Hispanic. Population-wise there's nothing weird here.

It's well known that the LSAT is very difficult for people who speak English as a second language. Many of the students there are an example of this yet succeed despite lower than average LSAT scores.

My girlfriend, for example, had a great GPA but not near the average LSAT score for the UA law school (upper 140s). The reason for this is because she's Mexican (from Mexico) and only learned English when she was 13. I watched her as she struggled with words and phrases and sentence constructions that even confused me. She studied every day for three months. And she got in, despite the score, and she is going great.

Put two and two together. Hispanics (who speak English as a second language) will naturally do much worse on the LSAT than native speakers. One can expect that their average scores can be up to ten points lower than white Americans. But that doesn't mean they'll fail at law school. Statistically speaking, that's why you see more Hispanics at the UA law school even though they generally all have lower scores. It's simply a factor that this school is smart enough to take into account.

NOW, if there is any argument to be made about bias in favor of Hispanics, it would be due to the crazy professors in the Mexican-American Studies department who indoctrinate their students about "Chicano power" and "la raza". It is possible some of these same people are in the law school, as there is a Latin American Studies concentration... but since we're looking at statistics, that's a whole different story.

Posted by: Robert Mayer | Oct 8, 2008 6:36:39 PM

This report is very factual. I applied for transfer admission to UNL Law School. I currently attend a Tier 1 law school ranked HIGHER than UNL Law School, have a great undergraduate GPA, excellent LSAT score, and had a very respectable 1L GPA. However, I was denied admission. When I visited the UNL Law School admissions office, I was told that they take rolling admission applications; however, there are certain applications “given preference” over others. I was further informed that after acceptance, my application would be subject to being relegated to “conditional acceptance” depending on the remainder of applications accepted.
The raw statistical data speak for itself.
When an academic institution makes the decision to embark down the slippery slope of affirmative action to the deteriment of more qualified students, the entire law school institution is compromised. What a shame for those qualified, hard working students and UNL Law School Alumna/e who will see their institution’s reputation and academic standards plummet.

Posted by: 2L | Oct 8, 2008 4:27:58 PM