Open Door Policy? 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 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 existing between 2000 and 2010, three groups -- African Americans, Mexican Americans, and Puerto Ricans -- lost ground in proportional representation. 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, one of four rationales for increasing diversity in the legal profession according to the ABA. The others are Business Rationale, Leadership Rationale and the Demographic Rationale. If, however, the profession fails to diversify its own ranks, it risks becoming what they call ''the apartheid profession.'' Before joining the Cooley faculty in 2009, Johnson 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. 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: * Increase the entering credentials of those applicants: * Change the way law school admissions decisions are made * 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.'' ''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. 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: Mon, Dec 5, 2011

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