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Law school applications are up this year in what some are calling a “Trump Bump,” since around a third of applicants were inspired to apply by Trump’s election. Nearly half of them identify themselves as members of a minority group. They’ve seen lawyers fighting Trump administration policies that discriminate against their communities and want to do the same. If these minority applicants succeed, they could change the balance of power in American society. If they fail, they will find themselves crushed under a lifetime of debt. But few are aware that they are taking this enormous gamble in a rigged game.
On average, minority students end up in lower-ranked law schools, which they pay more to attend than white students, resulting in higher debt burdens. Minority law graduates have lower bar exam passage rates, employment rates, and income levels. Given the intense competition for paid social justice positions, few of them will end up in careers where they can support themselves while fighting for the ideals that brought them to law school in the first place.
Legal education has failed and will continue to fail minorities. This shouldn’t be surprising, since the entire American system of restricting admission to the practice of law has long been designed, explicitly or implicitly, to exclude minorities. Nowadays, of course, minorities are no longer simply prohibited from entering law school. Instead, the system loads many of them with staggering debt before killing their hopes, leaving them hanging from the very bootstraps they had hoped to use to rise.
Attack on the Night Schools
If you want to practice law today, you minimally have to graduate from college, then law school, and then pass a state bar examination. This is a far cry from 1851, when, in the grip of the anti-elitist ideals of Jacksonian democracy, Indiana declared that all of its citizens were entitled to practice law, the only requirement being “good moral character.” Not until 1932 did that state concede that its lawyers might need some other training ― and this wasn’t as unusual as it might seem. Before the turn of the twentieth century, the vast majority of America’s lawyers had never attended the few law schools that then existed. (Most of them had not gone to college and some hadn’t even completed high school.) Instead, like Abe Lincoln, most apprenticed in a lawyer’s office and read up on state laws before passing a short oral bar exam. Apprentices had to persuade a lawyer to take them on, had to pay him, and could not perform other work to support themselves while apprenticing.
The early twentieth century saw an explosion of new law schools founded to serve the needs of those for whom such conditions were daunting, especially minorities, recent immigrants, and women. Generally located in urban centers, those schools charged low tuition and were staffed with practicing lawyers who taught after working hours, so that their students could earn a living.
There was widespread horror at the prospect of night schools allowing a horde of undesirables to become lawyers who might charge cheaper fees and so undercut mainstream attorneys. As a result, the Association of American Law Schools, representing the more expensive, university-affiliated institutions, banded together with the American Bar Association (ABA) to campaign for states to raise the requirements for aspiring lawyers. The target: keeping minorities out of the profession.
Shortly after World War I, for instance, a New York lawyer argued that it was “absolutely necessary” to require law school applicants to have attended college or the country wouldn’t have lawyers “able to read, write, and talk the English language ― not Bohemian, not Gaelic, not Yiddish.” Similarly, at a 1929 ABA meeting, a member claimed that the majority of complaints received by the Philadelphia Bar Association concerned “Russian Jew boys” and insisted that “these fellows that come up out of the gutter” be required to complete a college education to “absorb the American ideals.”
The process of restricting admission to the bar took decades. In 1923, although most aspiring lawyers attended law school, no state required them to do so. Only in the post-World War II years did all but a handful of states insist upon a law degree for everyone who wanted to practice in the legal system. Meanwhile, the ABA would be appointed the accrediting body for law schools in almost all jurisdictions and the cheaper, more accessible night schools would either close up shop or transform themselves into elite clones as best they could ― and raise their tuitions to match.
Why do Minority Law Students Pay More for Worse Educations?
In 1968, the year Martin Luther King, Jr., was assassinated, only 1% of American lawyers were black. Other minority groups had so few lawyers that the numbers weren’t even tallied. Since then, those figures have steadily increased, but the percentage of minority students in the elite law schools that offer the best chances for a prestigious, well-compensated career remains far lower than at non-elite ones. (The same has been true of women: while, in 2016, female law students outnumbered males for the first time, only six of the top 20 law schools had at least half-female student bodies.)
The reason: Law School Admission Test (LSAT) scores. Minority and underprivileged students have consistently had lower average LSATs than white and wealthier test takers, even when other ways of measuring their abilities and achievements did not show a difference. There has been much debate about the causes of this score gap. The expense of the preparation courses that teach LSAT-taking skills is certainly one reason. Others suggest that the test itself has hidden racial biases, since it calls for analyses that might be performed differently by those with different backgrounds. (Or perhaps not so hidden: as late as 1986, LSAT takers had to answer questions about a reading passage set in a country where slavery was legal, featuring slaves who insisted that they found their condition “extremely pleasant.”)
The LSAT score gap means that American law schools have developed a kind of educational apartheid: minorities disproportionately end up at lesser law schools. In 2017, for instance, Arizona Summit Law School topped the charts as America’s most diverse law school, while also earning another record: worst bar passage rate. Only around 27% of its graduates passed the bar exam on their first try and only 34% landed long-term, full-time legal jobs. The ABA put the school’s accreditation status on probation, but Arizona Summit is now suing the ABA, claiming unfairness in the decision, which has indeed put its ability to attract new students in jeopardy.
Minority students generally pay more for the privilege of going to these lesser schools, again thanks to the LSAT. Schools offer merit scholarships to students with high scores in order to increase their rankings. Lower-scoring students pay full sticker price and so, in essence, fund those scholarships, which tend to go to a wealthier, less diverse group of students in what some critics have dubbed a reverse Robin Hood effect.
Exploitation Disguised as Opportunity
Elie Mystal, an iconoclastic legal pundit, counsels law school hopefuls that of America’s more than 200 law schools, “there are maybe 20 schools that are worth paying full price for. There are maybe another 20 schools that are worth it if you are getting reduced, in-state tuition. And that’s being extremely generous.” So why do so many minority students end up at lesser schools that offer them a significantly lower chance of success? In his recent book Law Mart: Justice, Access, and For-Profit Law Schools, law professor Riaz Tejani dissects the way low-ranked law schools market themselves to students with low LSAT scores by promising to provide “access to justice.” Accepting students who will largely fail to get legal jobs in the name of allowing them the opportunity to access a legal education is, Tejani claims, symptomatic of a neoliberal model of legal education, which offers “social inclusion” at a steep price “devoid of social protectionism.”
The profits to be made from marginal students are significant, since tuition hardly varies between law schools regardless of their quality. Indeed, in 2011, New York Law School, which ranked in the lowest tier of such institutions, was charging more than Harvard Law School. The 2010 graduating class of the Western Michigan University Cooley Law School, another bottom-tier institution, had a total debt of more than $87 million. Nearly all of this borrowing was from federal loan programs and, given Cooley’s dismal employment statistics, it’s likely that taxpayers will have to cover the significant portion that will never be repaid. Despite such statistics, the class Cooley enrolled in 2017 was the third largest in the country, behind only Georgetown and Harvard.
The average graduate will have taken on more than $100,000 in debt (the amount a woman crowd-sourced last year to pay off what she owed after law school in order to achieve her new goal of becoming a cloistered nun). Such a debt is a far heavier burden for minorities, since the lists of schools with the highest proportion of them and of those with the lowest percentage of graduates employed in full-time legal jobs show considerable overlap. For example, in 2015, Charlotte School of Law had the fourth highest percentage of African-American students among law schools (36%) and also the highest percentage of 2016 graduates who were either unemployed, employed in temporary or part-time work, or working in nonprofessional jobs (59.12%). (Charlotte abruptly shut down in 2017, after the ABA put it on probation.) The few minority lawyers who obtain high-paying legal jobs have overwhelmingly gone to a top law school. Three-quarters of current black law firm partners went to one of the top 12 law schools, and nearly half went to either Harvard or Yale.
Mind the Justice Gap
In a book widely considered to have launched the ongoing debate about the future of law schools, Brian Tamanaha notes that “perversely, the United States has an oversupply of law graduates at the same time that a significant proportion of the populace ― the poor and lower middle class ― go without legal assistance.” This “justice gap” is, in part, the result of the high cost of legal education. Even those who went to law school to help members of their community regularly find themselves unable to afford to do so ― if they want to meet their monthly loan payments.
Access to affordable legal services offers a small but crucial boost to families struggling against poverty and discrimination. As studies like Matthew Desmond’s Evicted: Poverty and Profit in the American City demonstrate, those who have no choice but to represent themselves face large financial, social, and emotional costs in the overwhelmingly likely event that they lose in housing court or when trying to obtain debt relief or pre-trial release or a restraining order. Society as a whole then pays the price for the associated loss of productivity and the cost of baseless or useless incarceration. Affordable representation can quite literally be a matter of life and death. As Supreme Court Justice Ruth Bader Ginsburg has pointed out, “People who are well represented at trial do not get the death penalty.”
There have been a number of proposals to lower the cost of becoming a lawyer, including by making law school shorter, returning to an apprenticeship model, or establishing programs to train “legal technicians” in limited areas of the law. But while you could fight evictions effectively with cheaper and briefer legal training, you’ll never become a judge that way. For such positions, the broad, theory-based education offered by law schools is a virtual necessity. Critics, in fact, worry that a return to shorter, lower-cost programs would harden what already looks like educational apartheid. Minority applicants could be dumped into the equivalent of vocational programs and left without hope of rising to the sorts of positions of power in which change might begin to be implemented within the legal system.
Solutions are not simple, but change is clearly needed in areas ranging from admissions standards and law school coursework to the nature of the bar exam itself ― and that undoubtedly only begins to touch on the deeper biases embedded in the system. In his prescient 1977 book, Unequal Justice: Lawyers and Social Change in Modern America, historian Jerold Auerbach argued that biases in the legal profession have “particularly serious consequences” in a country where we depend on lawyers to interpret and implement the principle of equal justice under the law. The difference that the rise in the number of female judges has made is already evident. For one thing, male judges are 10 percent more likely than female ones to rule against sex-discrimination claims.
Imagine, then, what a difference more minority judges might make. Unless the current system of education changes, however, that difference will remain a figment of the legal imagination.
Erin L. Thompson, after practicing as a lawyer, is now an assistant professor of art crime and a pre-law adviser at John Jay College (CUNY). She has previously written for TomDispatch on curating an exhibit of art made by detainees at Guantánamo Bay. Follow her on Twitter at @artcrimeprof.
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Copyright 2018 Erin L. Thompson