Sander: Are Law Schools Engines Of Inequality?

Richard H. Sander (UCLA), Are Law Schools Engines of Inequality?, 48 J.L. & Educ. 243 (2019):

In Robin Hood in Reverse, Professor Aaron Taylor examined an important problem: how the cycle of rising law school tuition and expanding merit scholarships damages the pipeline of opportunity for aspiring lawyers and reinforces the social "eliteness" of legal education. Taylor directs the Law School Survey of Student Engagement (LSSSE), which gathers data on the experiences of thousands of law students each year, and he is in a good position to shed light on the important problems he examines. He advanced some bold claims which deserve careful consideration. Professor Taylor has generously shared with me the LSSSE data he used in his analysis. Working with these and other data, I evaluate Taylor's arguments and analyze what we can reliably say about how law school scholarship programs have evolved and how they function today.

My main conclusions are these:

(1) Taylor views the powers that be in legal education as seeking to maintain the legal profession as a preserve for socially privileged whites; he sees the reliance on the LS AT as a central mechanism for replicating the social exclusiveness of the profession. In contrast, I see law schools as increasingly focused on the rankings arms race, which has produced a variety of specific behaviors unhealthy for the legal academy as a whole.

(2) Taylor treats "race" and "class" almost interchangeably; in his view, law school policies are unfair to racial minorities and low-SES students in very similar ways. As I show, however, law school policies break out in dramatically different ways depending on whether we use a "race" lens or a "class" lens. We cannot understand these policies without recognizing this distinction.

(3) Although Taylor's conclusions are sweeping, his LSSSE data cover only the past few years, and his quantitative analysis relies primarily on crosstabulations. I bring in historical data from the 1990s and use regression analysis to isolate how specific factors operate when we control for other relevant variables. Both of these steps greatly enhance our understanding of the underlying patterns.

(4) Many of Taylor's conclusions go beyond what his data actually show. And it is striking how many gaps exist in the LSSSE data, compared to other databases on legal education generated in the 1990s and early 2000s. I try to distinguish (a) what we can reasonably infer from contemporary data from (b) what we can only make guesses about, pending the development of better sources.

In the final section of the paper, I build on these insights to attempt a general diagnosis of what ails our current policies, and to suggest steps we might take to fix things.

II. SOME PRELIMINARIES

Professor Taylor contends that legal education is illegitimate because it obsessively rewards achievement on the LS AT, relying on those scores overwhelmingly in admissions and scholarship decisions when it has little to do with one's potential as a lawyer. The LSAT has achieved this prominence, he suggests, because it measures privilege rather than legal ability; elitists in law schools like the LSAT because it allows them to admit and reward new rising generations of socially privileged students.

Each of these claims is greatly overstated.