Paper explores law school admission policies, practices and diversity

By Debra Talcott

Legal News

In a thought-provoking paper titled, "The Door to Law School," Cooley Associate Dean John Nussbaumer and Professor Chris Johnson challenge conventional thinking and practices surrounding law school admissions policies. Published as the lead article in the Fall 2011 volume of the University of Massachusetts-Dartmouth Law School Roundtable Symposium, the article discusses current and future implications of the growing disparity between the legal profession and the population it serves.

"Professor Johnson and I wrote this article because we wanted to expose the hypocrisy that exists in American legal education today," says Nussbaumer, who serves as a liaison from the State Bar of Michigan's Diversity and Inclusion Advisory Council to the ABA Council on Racial and Ethnic Diversity in the Educational Pipeline. "While most law schools talk the talk about diversity, the facts are that most of American legal education knowingly engages in admissions practices that systematically deny admission to thousands of qualified students of color every year."

Statistics on the number of students who apply to, are accepted by, and matriculate from ABA-approved law schools are gathered by the Law School Admissions Council (LSAC) and made available to the public. The data show that over the first 10 years of this century less than one-third of Caucasian applicants are shut out from these law schools, while the shutout rates for all other groups (including African American, Asian American, Hispanic, Puerto Rican, Mexican, and Native American applicants) are higher -- whose LSAT scores are statistically indistinguishable from their Caucasian counterparts. Furthermore, of the two largest applicant groups of color, Hispanics and African Americans, nearly one-half to two-thirds, respectively, of those groups never got the opportunity to prove through performance that their LSAT scores were not the best indicator of their ability to succeed in the legal profession.

Lawyers of color comprise only about 10 percent of the profession, despite Census Bureau projections that by 2042 a majority of America's citizens will be citizens of color, according to Nussbaumer.

Even when a substantial increase in the number of available law school seats existed between 2000 and 2010, three groups -- African Americans, Mexican Americans, and Puerto Ricans -- lost ground in proportional representation. African Americans lagged 15 percentage points behind the growth in all students of color and 6 percentage points behind the growth in all students; Mexican Americans lagged 19 percentage points behind the growth in all students of color and 9 percentage points behind the growth in all students; Puerto Ricans lagged 34 percentage points behind all students of color and 24 percentage points behind all students, which indicates a trend that alarms Nussbaumer and Johnson.

"If the legal profession isn't viewed as representative of the society it serves, people may lose trust in the justice system," says Johnson, who formerly served as chair of the ABA Council on Racial and Ethnic Diversity in the Educational Pipeline and is a member of the ABA Council on Legal Education Opportunity (CLEO).

This concern is echoed by the ABA Presidential Initiative Commission on Diversity, which offered four rationales for increasing diversity in the legal profession: the Democracy Rationale, the Business Rationale, the Leadership Rationale, and the Demographic Rationale.

Nussbaumer and Johnson explain that a diverse bench and bar create trust in the mechanisms of government and the rule of law and that such diversity supports the Democracy Rationale. If, however, the profession fails to diversify its own ranks, it risks becoming what they call "the apartheid profession."

Johnson has firsthand experience with the Business Rationale for diversity. Before joining the Cooley faculty in 2009, he spent 20 years on the General Motors legal staff, including his last 7 as the North America Vice President and General Counsel. Johnson explains that businesses must respond rapidly to the needs of global customers, suppliers, and competitors by creating workforces from various backgrounds that bring diverse perspectives and skill sets. Likewise, clients now expect to have access to lawyers who are culturally diverse.

"Diversity is good for business because the world is becoming smaller," says Johnson. "It is by working with people who are different that we gain what we call 'global competencies' in the business world."

The corporate call for diversity came in the form of what has come to be known as the "Harry Pearce letter" written in 1987 by then GM General Counsel Harry Pearce to 900 outside law firms. In his letter, Pearce demanded diverse representation in handling GM matters. Johnson joined GM shortly thereafter and continued the efforts to diversify the corporation's outside counsel and the legal profession as a whole. It was during his tenure that GM became the first corporation to file an amicus brief in support of the University of Michigan Affirmative Action cases.

In support of the Leadership Rationale and the Demographic Rationale for diversifying the legal profession, "The Door to Law School" cites the crisis in confidence experienced by the U.S. military during the Vietnam War. During that era, racial difficulties were caused or heightened when enlisted ranks found themselves commanded by mostly white officers. The armed services responded to these tensions quickly, by increasing the number of minority officers and by conducting officer training within diverse groups.

Nussbaumer and Johnson say the legal profession must learn a lesson from that military experience because such disparity can be damaging to the ability of any profession to maintain its credibility and effectiveness.

Their article also discusses lost opportunity costs for prospective students who have been shut out from the opportunity to attend law school. According to data from the LSAC for 2000-09, for example, 95,870 African Americans applied to ABA-approved law schools, with only 38,240 receiving at least one offer of admission. Had only 10 percent of those 57,630 rejected over that 10-year period alone succeeded in law school and gone on to practice for 40 years, their earnings could have reached $12.6 billion. The fact that this income was never generated constitutes lost opportunity costs for the African American community as well as the applicants themselves.

A legal profession more representative of the society is serves will only be achieved when applicants of color gain increased access to law school. Nussbaumer and Johnson say three ways to reach this goal are: to increase the entering credentials of those applicants; to change the way law school admissions decisions are made; and to create magnet law schools that would provide meaningful opportunities for students to succeed in their classes, pass the bar examination, and enter the profession.

"That's why I am at Cooley," says Johnson, who was being pursued by law schools both in and outside of Michigan. "I felt so strongly about this whole diversity issue because it had been a big part of my professional life going back to my days at West Point. I wanted a school that put these principles into practice."

Johnson had established a Cooley connection even before joining the faculty when he partnered with Nussbaumer on a project.

"And when I was at GM, I hired the first graduate from Cooley to serve on the GM legal staff," Johnson adds.

Nussbaumer, in turn, was impressed with Johnson's work and his commitment to diversity causes.

"Chris and I had teamed up over a law school accreditation issue and found we were on the same side of the issue," explains Nussbaumer. "So I started a year and a half 'recruitment dance' to get him to come here."

"One reason Cooley Law School is so successful in enrolling diverse applicants is that we base admissions decisions on the actual performance of previous students we've admitted with the same credentials rather than say, 'Where do we want our U.S. News & World Report scores to end up?'" says Nussbaumer, referring to the magazine's annual rankings of law schools.

Those rankings are what Nussbaumer calls part of the "elitist mentality," of legal education because the more students a school rejects, the higher its selectivity score.

While most law schools look only at the LSAT scores and ignore the writing samples, Cooley's Professional Exploration Program assesses those writing samples according to a validated grading rubric. If a student does not meet regular admission requirements but has at least a minimum LSAT level, the writing sample is taken into consideration.

If the writing sample is approved, the candidate is then invited to participate in a week-long program of law school torts instruction-free of charge. At the end of that instruction, the candidate is evaluated on a torts exam and a reading test, on attitude, and on work ethic.

In 2000, the Cooley faculty made changes in its academic support program with the goal of providing every opportunity for any student to succeed, regardless of race or ethnicity. In addition to a dedicated faculty, Cooley has three full-time, tenure-track academic support faculty, plus approximately half a dozen instructors, all with J.D.s, as well as paid graduate assistants who work with students.

"I like to tell students, 'You all got here under the same admissions criteria. You all start the race even. Now it's up to you to see how far you can go,'" says Nussbaumer.

According to ABA-LSAC data, Cooley students have, indeed, gone far. In a comparison of all Michigan Law Schools from 2005-09, Cooley's numbers for African American graduates, for example, reached 449, comprising 12 percent of all graduates. Second on the list was the University of Michigan, with 121 African American graduates during that same 5-year period. Results for 2010 show Cooley leading the way with 84 African American graduates and Detroit Mercy listed second with 24.

Nussbaumer and Johnson would like to see law schools rely less on the LSAT scores that test only the knowledge component of legal education and take into consideration other qualities that indicate a candidate will make a successful lawyer. Those qualities include judgment, values and ethics, composure, creativity, team-building, innovation, and interpersonal skills.

Nussbaumer and Johnson also say employers must be willing to "cast a broader net'' and look beyond just the top-tier schools when recruiting new lawyers.

Johnson likes to tell the story of a time he met with 35 senior partners from prestigious New York law firms to discuss diversity. He found it ironic that those lawyers resisted considering candidates from other than the most elite law schools.

"I told them, 'I checked, and only 20 of the 35 of you went to top-tier law schools,'" he says.

If the changes in education and business that Nussbaumer and Johnson have outlined fail to occur, the pair predicts a crisis of confidence in American democracy, business, leadership, and the justice system.

"For us as lawyers, this should be the civil rights issue of our generation," they say.

Published: Fri, Nov 18, 2011