An article authored by Peter Schmidt and entitled, “Advocates of Diversity Grasp for Ways to Drive Change in Legal Profession,” was published by The Chronicle of Higher Education this morning. I left the following comment in the comments section.
I agree with Steve (Comment #2) that the pressure to maintain high LSAT scores for rankings purposes is probably not the primary reason why more minority students, particularly more African American students, aren’t winning seats with the elite law schools to which they apply. I believe a more significant reason is the lack of cross-cultural competence or lack of cross-cultural empathy at elite law schools and in their admissions teams.
Our best law schools are led by Euro-Americentric scholars and decision-makers. These Euro-Americentric decision-makers needn’t be Whites who were raised in upper-middle-class or upper-class Euro-Americentric cultural and linguistic environments, but I suspect more than 70% of them are. I also suspect very few of these decision-makers took advantage of their opportunities to become very knowledgeable about how minority members of our lower-class or lower-middle-class use language, how they interpret and remember complex ideas, or how they demonstrate their comprehensions of complex ideas.
The LSAT is a great tool for testing several important skills and certain forms of intelligence, but it does not directly test a student’s oral rhetorical skill or a student’s ability to grasp ideas that would be presented to him or her orally and in culture-respecting academic contexts. The LSAT limits the student to a demonstration of his or her ability to use several forms of formal and informal logic while using the written version of the Standard American English dialect. I suspect students who were raised in upper-middle-class and upper-class Euro-Americentric cultural environments and were raised using English dialects that were the same as or very similar to the Standard American English dialect used in the LSAT would perform better on the LSAT, all other things remaining equal, than equally talented and erudite lower-class and lower-middle-class minority students whose native cultural and linguistic backgrounds were very different from their upper-middle-class and upper-class Euro-Americentric peers.
However, I suspect many talented lower-class and lower-middle-class minority students figure out ways to close these cultural and dialectical gaps while communicating orally in and in academic contexts. I also suspect many of them, because of their dual-cultural or multicultural social environments, develop methods of idea acquisition and demonstration that are different from their average upper-middle-class or upper-class Euro-Americentric peer who would spend almost all his or her time in a single cultural environment. Unfortunately, the LSAT doesn’t enable talented lower-class and lower-middle-class minority students like these to demonstrate their intellectual fitness levels in culturally and dialectally neutral ways.
A counterargument might be that our elite law schools are neither culturally nor dialectally neutral, and that lower-class and lower-middle-class minorities who fail to master the upper-middle-class and upper-class Euro-Americentric culture and the written form of the Standard American English dialect as well as their upper-middle-class and upper-class peers are not as intellectually fit for our elite law schools as their equally talented and erudite upper-middle-class and upper-class Euro-Americentric peers. Some might even argue that lower-class and lower-middle-class minority students must be as talented and erudite as their upper-middle-class and upper-class Euro-Americentric peers AND must possess the same cultural and dialectical competencies as their upper-middle-class and upper-class Euro-Americentric peers in order to deserve opportunities to complete the rigorous programs at our elite law schools and to benefit from the social capital, symbolic capital, and prestige our elite law schools offer their students.
I believe cross-culturally competent and cross-culturally empathetic elite law school admissions decision makers would be able to identify and use reliable indicators of adequate or superior intellectual fitness in lower-class and lower-middle-class minority law school applicants that aren’t revealed by LSAT scores and that would signal certain prospective minority students would be able to perform well in their rigorous elite law school programs. Indeed, I believe the elite law school admissions teams that would give the LSAT scores of lower-middle-class and lower-class minority prospects the same consideration as the LSAT scores of upper-middle-class and upper-class prospects would probably give cultural and dialectical preferences to upper-middle-class and upper-class Euro-Americentric prospects. Increasing the amount of cross-cultural competence and cross-cultural empathy at elite law schools and on elite law school admissions teams might enable more of our elite law schools to develop admissions decisions algorithms that would help them use prospective students’ LSAT scores in more culturally and dialectically impartial ways, and would help them do a much better job of culturally and socioeconomically diversifying each year’s crop of intellectually fit students.
11 Comments
If I may pose a question…
Do lower-class or lower-middle-class minorities — or minorities in general — “use language” and “interpret and remember complex ideas” in such ways as to pass the bar exam in equal proportion to whites… after completing law school?
No?
Then how to address the racially disproportionate bar passage rates? By similarly revising bar exams to eliminate the “cultural and dialectical preferences” for upper-class whites?
I think the question is simple: Are LSAT scores an accurate predictor of success at elite law schools (which is what they’re designed to be)? If so, let the chips fall where they may.
That means: If only (say) 2 percent of a given law-school class at Yale or Stanford is black… that’s the way it’s supposed to be, because that’s how many can be expected to excel at that elite level, based on a race-neutral admissions standard.
It seems like what you’ve laid out here, Mr. Hopkins, is a process for artificially inflating the number of black students in elite law schools. That’s morally dubious unto itself… but also ultimately self-defeating, if those students ultimately fail the bar in large numbers.
Our best law schools are led by Euro-Americentric scholars and decision-makers
How do you define “best” in this term?
Wouldn’t you agree that “best” is really in the individual that can interpret and understand how and when to execute laws and legal precedence?
I followed many cases of some of the most “elite” lawyers losing big cases for corporations because they thought the “elitism” would succeed legal precedence and the letter of the law.
I’m just saying from my criteria when looking for a a lawyer, I’m researching an individual lawyer who handled a case well, not the prestigious law firm in question.
Elite business schools - I can see the networking value in that. But when it comes to ‘elite’ law schools - I thought the law is the law..
UBM:
1. I don’t want to address bar passage rates. Those who can’t pass the bar (even though they try a few times) need to use their legal educations to do something other than practice law as licensed attorneys. And, there are plenty of great jobs that don’t require licenses to practice law that elite law school graduates could fill. Here are a few jobs that don’t require licenses to practice law: 1) law professor; 2) judge (some judge jobs do require that the lawyer be admitted to a bar); 3) entrepreneur; 4) corporate manager; 5) city planner; 6) real estate developer or real estate broker; 7) politician or political strategist; 8) not-for-profit manager or community organizer/activist; 9) talent agent; 10) Hollywood screenwriter…you get my point.
2. I’m more interested in whether elite law schools could do a much better job of limiting the likelihoods that lower-class and lower-middle-class minorities, who could graduate among the top 75% of their classes, would be denied admission. I believe our legal system and our society can ill-afford to have our elite law schools deny admission to any minorities who could graduate among the top 75% of their classes, and I believe cross-culturally competent and empathetic minority law school graduates and expert social science scholars could do more to help our elite law schools learn much more about which combinations of non-LSAT attributes could reliably predict which lower-class and lower-middle-class minority applicants could finish among the top 75% of their classes if they were given the proper levels of financial, academic, cultural, and social support during their first years of law school.
3. I might be a little more concerned about those chips than you are. Where, when, how, why, and for whom those chips fall significantly influence wealth, power, and prestige distributions in our society. And, since I kinda want to help our nation move towards a more economically efficient meritocracy (see my comments in the thread for Theodore Roosevelt on How to Use a Silver Spoon) I don’t believe our nation has yet engineered a social system in which our most patriotic citizens could rest assured that our most important social chips are falling where, when, how, why, and for whom they should most or all of the time.
4. The LSAT is used to help law schools determine whether or how well a prospective student would get through the first year of law school if he or she had to compete against the other talented students who would likely matriculate. The students who tested within a certain range are deemed more likely to be able to hang in there, grade-wise, against other students who tested below a certain range. This is important at elite law schools (top 50 law schools) that grade on curves (which is just about all of them), because the students who score above the 50th percentile of LSAT scores for the school’s normal LSAT score range are likely to outperform, grade-wise, the students who score below the 50th percentile. And, when law school decision-makers consider admitting talented minority students who scored below the 50th percentile, many of them fear that these students would be put into very competitive environments in which they would be set up to fail or would get their butts kicked grade-wise.
5. There are debates about whether the LSAT is a good predictor of a law student’s ability to compete well against his or her LSAT/GPA peers during his or her first year of law school. I believe these debates are time-wasters. The LSAT is definitely a great predictor. But why is it a great predictor?
6. I believe our elite law school admissions decision-makers and more of our cross-culturally competent social social scholars (as well as the Law School Admission Council psychometricians) should be focusing much more on finding good answers to a few other questions that could help us all learn more about why the LSAT is a great predictor of first-year law school academic success. Off the top of my head (and before my coffee no less), I suggest the following questions are the ones I would believe I needed to investigate if I were a professional social science scholar who was qualified to investigate these questions and who believed good answers to these questions would help improve our elite law schools’ admissions decisions algorithms (I believe good answers would improve our elite law schools, but I am no professional social science scholar).
7. Before I had begun my first year of law school, I doubted that LSAT scores were reliable predictors of first year success, despite what the evidence showed. Now, I have faith that LSAT scores are outstanding predictive tools for determining how well a prospective law student would perform academically during his or her first year of law school, among certain types of talented and competitive peers, and in certain types of academic, social, and cultural environments. Indeed, I now have faith that the reasons why the LSAT is such a great tool are it probably measures how prepared a student would be culturally and linguistically to compete against his or her peers as much as or more than it measures how intelligent or erudite a student is relative to his or her peers. The LSAT probably also measures how comfortable the student would be at an elite law school; how likely the student would feel welcomed in one of the most competitive Euro-Americentric institutions of higher learning; how Euro-Americentric the student is relative to his or her peers; and how Euro-Americentric or cross-culturally incompetent elite law schools are.
8. I believe law schools could learn a lot about why LSAT scores are such good predictors of first year success if they learned more about how well the LSAT score signals intelligence vs. work ethic vs. grasp of formal or informal logic vs. Euro-Americentric acculturation level vs. social capital or social network support levels vs. written Standard American English communication skill vs. oral Standard American English communication skill. Then they could use LSATs to not only predict how well a particular student might perform at their institution, they might also be able to use the predictive powers of LSATs to help them make culture-respecting adjustments at their institutions so that lower-class and lower-middle-class minority students, who were as intelligent and erudite as their upper-middle-class and upper-class Euro-Americentric peers, would suffer far, far less from cultural discomfort during the first years of law school.
Ed:
I agree with your Comment #2. And, you’re right about “best.” I meant something like “law schools that are ranked the highest by the various rankers” when I wrote “best law schools.”
The original blog post at the top is a copy of a comment I shared at another blog. Another commentator responded to my comment in this comment. I shared the following comment on November 30, 2007 in response.
Steve, I believe your comments in #7 are spot on. Indeed, since such a small proportion of talented lower-class and lower-middle-class minorities do, amazingly, find ways to prepare themselves to complete the same rigorous elite law school programs that most of their peer middle-class and upper-class applicants were prepared for, our elite law schools probably should try to use superior cross-cultural expertise while evaluating lower-class and lower-middle-class minority applicants in order to limit the likelihoods that they would deny admission to lower-class and lower-middle-class minorities who could graduate in the top 75% of their classes.
It might benefit elite law schools if they would set up special admissions teams made up of cross-culturally competent and cross-culturally empathetic minority law professors and law school graduates who would focus exclusively on evaluating lower-class and lower-middle-class minority applicants’ files. These teams could develop criteria that would help them better inform less cross-culturally competent or less cross-culturally empathetic decision-makers about lower-class and lower-middle-class minority applicants who would have certain combinations of non-LSAT attributes that would reliably indicate it were more likely than not that they could perform well enough to graduate among the top 75% of their classes at elite law schools even though they had only scored between 155 and 165 on their LSAT exams.
Our society does not do as much as it could (or should, in my opinion) to create level playing fields for our lower-class and lower-middle-class minority citizens during their first two to three decades while they develop their intellectual and economic potentials and compete for their desired social roles. I’m a fan of John Roemer’s recommendations in his Equality of Opportunity; but I’m just a very rare Afrocentric African American male law student trying to prep for his first semester exams. There’s not much I could do, with my modest levels of wealth, power, and prestige, to persuade many millions more of my fellow citizens that our nation should invest many billions more in our lower-class and lower-middle-class citizens. I realize the pipeline problem is very real, and I realize that elite law schools can’t do much to fix the things that cause their minority pipeline problems (although, Elizabeth R. Parker’s Fall 2005 University of Toledo Law Review article, “A Dean’s Dilemma or Lessons in Diversity,” describes a few ways law schools might attempt to partner with community organizations in order to work on their pipeline problems).
Even so, elite law school admissions teams should be able to draw from their best minority students and alumni, and the best social science scholars (sociolinguists, sociologists, social psychologists, education scholars, political scientists, etc.) at their institutions in order to identify several combinations of non-LSAT attributes that would reliably signal certain lower-class or lower-middle-class minority students could perform well enough to finish in the top 75% of their classes if they were properly supported—financially, academically, socially, and culturally—during their first years of law school.
Thank you, E.C., for #3, which is a great document unto itself… clarifying your position and educating me quite a bit in the process. I will have to re-read it more closely (and follow those hyperlinks) in order to probe deeper.
But my bottom-line issue, I think, is a philosophical one:
Instead of devoting enormous intellectual capital to the project of re-engineering the academic and social cultures of elite law schools… why not spend that energy better preparing lower-income minority students to compete under the current rules?
In other words, I think it’s the students who need to change… not the institutions. Because the things you point out which disadvantage some lower-class students aren’t biases that rise to the level of social injustice. As opposed to old policies such as a “Jew quota” and Jim Crow segregation and (going way back) state bans against women practicing law… which were unjust on their face, because they disregarded merit.
One is not ENTITLED to feel socially or psychologically “comfortable” at Yale Law School. One is only entitled to be judged fairly according to merit.
And I can’t think of another profession where mastery of the written form of Standard American English is a more crucial component of merit… the ability to read and understand precedents, to write an effective brief or write a persuasive motion…
Elite law schools don’t disadvantage the verbally unskilled because they’re UNJUST. They do so because elite law schools are designed to produce well-functioning lawyers. And they DO produce well-functioning attorneys.
And given that they succeed at their purpose, you’ll have a hard time convincing the legal education establishment that it needs to radically re-engineer the sociocultural life of law schools.
UBM:
1. I say work on both simultaneously. I believe doing this would help us improve both faster.
2. On this we disagree. I will defend meritocratic intellectual competitions, up and down and all around. But I won’t defend economically inefficient or socioeconomically-biased and culturally-biased playing fields. I believe that someone who would hold the position you expressed in Comment #6, runs too great a risk of supporting economically inefficient and socioeconomically-biased and culturally-biased playing fields that uneconomically and unnecessarily favor competitors for reasons that have little to do with intellectual merit.
3. I agree completely. See #2 in this comment.
4. Which profession? If you are referring only to the profession of licensed attorney, you have my assent. However, as I explained in Comment #3, legally-educated folks do much more than practice law and represent clients. You would not want to argue that mastery of SAE’s written form should be considered one of the most crucial components for determining intellectual merit in all of the important social roles for which our elite law school graduates could use their legal skills.
5. No argument from me on this. Verbally unskilled folks shouldn’t be in law school. However, as someone who has studied plenty of linguistics, I’m more familiar with how the language-brain connection works than the average Joe. I’ve argued that the LSAT favors folks who are very skilled users of the written form of the SAE dialect. I’ve also argued that the LSAT does not do a good job of directly testing a test-taker’s facility with the oral form of the SAE dialect. Many talented learners develop ways to absorb ideas communicated orally in their non-native English dialects more effectively than ideas communicated in written form. Here’s my hypothesis UBM:
Very talented lower-class and lower-middle-class minority students 1) whose native oral English dialects were very different from the oral and written forms of the SAE dialect and 2) who were skilled but not very skilled users of the written form of the SAE dialect and 3) who could absorb and demonstrate their mastery of the ideas that would be taught to students at elite law schools well enough to finish, grade-wise, in the top 75% of their classes, would be more likely to score five to ten points lower on the LSAT, all other things remaining equal, than their equally intelligent and erudite middle-class and upper-middle-class Euro-Americentric peers who would be very skilled users of the written form of the SAE dialect and would be likely to finish, grade-wise, in the top 75% of their classes.
6. While I believe the primary purpose of our elite law schools is to produce well-functioning lawyers; I don’t believe that’s what makes them elite. ALL law schools strive to produce well-functioning lawyers. Elite law schools strive to do a few more things for their graduates and for our nation’s social stratification project. For example, graduates of elite law schools are awarded more wealth, power, and prestige on average than the well-functioning lawyers who graduated from non-elite law schools. They, on average, gain more access to more economically valuable social capital than their peer graduates from non-elite schools. They also pick up, on average, more symbolic capital and cultural capital. Moreover, elite law school grads are more likely to teach the law and to lead the legal academy’s scholarship project, giving elite law schools substantial and quasi-nepotistic influence (perhaps too much influence) over which ideas and scholars would be assigned the most prestige in the legal academy.
If by philosophy he means the uncritical effort to define and enforce social conformity from the perspective of the politically dominant group whose values and interests must always be taken into account - then yes, Mills is waxing “philosophical” here.
David has also managed to uncritically internalize sociobiological views on race and IQ,
so it would come as no suprise to find him applying these same views on behalf of the politically dominant group whose interests shape the legal training, law-making, and law enforcement processes.
External Ed…
“But when it comes to ‘elite’ law schools - I thought the law is the law…”
The law is never the law. Not in daily practice. Elite law schools prepare you well for the theory of law, but the daily practice is mostly political.
The way things usually go is that a judge figures out what he/her deems “just” and then fits the statues and case law around his/her prior decision. Mostly that decision is poppycock on that judges lower level. He/she can usually count on either negatively affected party not to appeal because it is too expensive to pursue an appeals process.
Michael,
What you laid out is an advanced subtle strategy to discourage many people from pursuing litigation.
I do agree at the end of the day that the law is the law. Even with judges that like to interpret things their own way, it must be anticipated that one will have to appeal any ruling by a biased judge and factor those costs before going to trial.
I do not want to discourage anyone from seeking litigation, particularly African-Americans who speculate they cannot pursue justice through the courts based on unproven perceptions. Instead I want to encourage people to know the law exactly and research precedence and strategy to win a decision before showing up in a courtroom.
I seen too many African-Americans in my lifetime who were affected in a way that was considered actionable and grounds for a lawsuit but did nothing about it. That is the first thing that have to change if we are going to challenge injustice…
Re: Comments #9 and #10
Meta-Strategically, I think in terms of 3Rs: Rules, Relationships, and Resources. Those who know the law (the most efficient way to learn it is probably to go to law school) are better able to understand how they and others could use the rules that govern many of our political economic games of consequence. And those who are licensed to practice the law have thicker shields and more powerful swords than those who don’t.
I’ve been persuaded, while studying U.S. Constitutional Law and Civil Procedure this semester, that the U.S. legal system blatantly favors the wealthy. The wealthy can take more legal risks, and they can stretch or break the law, stretch or break the rules, more frequently without penalty or imprisonment. They can also litigate longer and stronger than poorer folks, giving the wealthy more strategic options, and more bargaining leverage, after a complaint has been filed. Wealthier folks can hire power firms. Poor folks can barely afford kind-hearted sole practitioners. And, since the U.S. Constitution was written so that one group of people would get more than a century-long head-start on a series of political economic games for capital accumulation that influenced our current wealth, power, and prestige distributions and that began in the 17th Century’s New World, the descendants of peoples who were politically and economically disenfranchised until the second-half of the 20th Century now have far less wealth than they would have had those games been fair or near fair from the start. And now, those who have inherited the most wealth, power, or prestige from all those unfair early games, have more money available to use the law to their advantage in future competitions.
Solution? There is no quick solution. It took centuries to tip the wealth, power, and prestige scales in such an unjust way, and I suspect it will take at least that long to come close to balancing them, if balancing them is even possible after such a huge scale-tipping. But there is something Black America should do in order to accelerate the move towards a balancing. Black America needs to work together in order to put thousands more Blacks through law school. Blacks who think they want MBAs should get JDs instead. Blacks who can’t get free Ph.D.s at top programs, should seriously consider the JD at an elite school instead. Blacks need to start looking into 4-year part-time evening programs for JDs or they should start pressuring their local universities to start offering 4-year part-time evening programs. And, Blacks need to start encouraging bright Black undergraduates to get JDs in addition to whatever other graduate degrees they might get—JD/MA, JD/MS, JD/Ph.D, JD/MD, etc.
We really need to decrease the average degrees of separation between most Black folks, especially lower-class and middle-class Black folks, and Black lawyers. Those who know or know someone who knows the rules of law benefit from the access to more strategic capital (cnulan’s term) than those who don’t. And, one of the very best ways to add a whole bunch of strategic capital to your social network is to learn the law and get barred, or help someone in your family learn the law and get barred, or help someone on your block learn the law and get barred.