The American Bar Association considers, as part of its accreditation requirements, a law school's commitment to a diverse student population. For top-ranking institutions, that usually means some combination of aggressive outreach, race-conscious affirmative action and on-campus support services to help recruit and retain underrepresented minorities.
But what if the ABA's diversity standard led some students on the path to failure?
Since 2005, when The Stanford Law Review published a controversial and highly publicized study concluding that there would be more black lawyers if law schools did not use affirmative action in admissions, opponents of such policies have argued that race-based preferences actually harm those whom it is intended to help. Yet there is also evidence that concerted outreach and support efforts can, if applied properly, prevent the potential negative effects of race-conscious admissions practices.
The "mismatch" theory, as it's been called, posits that some African-American students have struggled and at times dropped out of highly competitive law schools even though they might have thrived at lower-ranked or less rigorous institutions, and gone on to pass the bar exam. The article concluded that without affirmative action, black students would be better "matched" with institutions that meet their qualifications, and that disparities in failure rates would disappear.
Now, an organization that opposes race-conscious admissions policies asserts that it has found data from one particular institution illustrating the sort of dynamic the study would predict. According to data obtained through a public records request, from 2003 to 2005 some 45 percent of African-American students at George Mason University School of Law, outside of Washington, had grade-point averages below 2.15, defined as "academic failure." For the rest of the student body, however, the figure was 4 percent.
While the law school confirmed the numbers, it also provided details showing that since those years, the number of admitted African-American students increased while instances of "involuntary academic attrition" -- in which students are no longer permitted to continue the program unless they reapply and show improvement to achieve good standing -- dropped to zero. Moreover, officials attributed the gains to an expanded outreach program that pairs each incoming minority student with both a student and an alumni mentor.
In 2004, the law school enrolled seven black students, four of whom were placed on involuntary academic attrition. In 2005, an equal number of black students enrolled, but five of them could no longer continue for the same reason. The next year, the law school began to see improvements: In 2006, one black student out of eight admitted suffered academic failure; in 2007, the enrollment of first-year African-American students climbed to 13, and none of them failed out.
"We feel that we’ve made significant progress, although you can always do better," said Christine LaPaille, George Mason's vice president for university relations. "The numbers speak for themselves. In the early 2000s, we had an attrition rate of more than 60 percent of our first-year African-American students. This year we admitted more African-American students than in any of the last four years, and this year we had an attrition rate of zero."
The law school has seen its share of controversy surrounding diversity issues. The ABA has repeatedly questioned whether the school was doing enough to attain a sufficiently representative student body, a dispute that has at times spilled over into the public arena. The public records request, filed under the Freedom of Information Act by the Center for Equal Opportunity, revealed the stark gap in academic failure rates contained in a letter from the law school's dean, Dan Polsby, to the ABA in response to a site visit report.
"We have an obligation to refrain from victimizing applicants, regardless of race or color, by admitting them to an educational program in which they appear likely to fail," Polsby wrote. "This obligation is recognized in Standard 501(b), but we believe it exists independently of any ABA regulations. Adhering to this principle is the greatest obstacle to our efforts to increase the diversity of the George Mason student body."
ABA Standard 501(b) states: "A law school shall not admit applicants who do not appear capable of satisfactorily completing its educational program and being admitted to the bar."
While some critics have placed blame for the disproportionate failure rate of some minority students on the ABA, others defend the association's standards and contend that schools should be taking more responsibility for the success of their students. “I don’t think any school should be failing 45 percent of any of its cohorts,” said Michael A. Olivas, the William B. Bates Distinguished Chair of Law and director of the Institute of Higher Education Law & Governance at the University of Houston Law Center.
Olivas, who has participated in ABA accreditation site visits, said the attacks on the diversity standard as applied to Mason were "very unfair and very misleading" because of the small sample size and suggested that minority students at a law school like George Mason might not feel welcome. "I think the support program has made a difference and I think the appropriate admissions standards for a top-40 law school have also made a difference," LaPaille said of the law school's more recent efforts.
The ABA concluded in its site evaluation report in 2000 that the relatively low enrollment of minority students at the school could be attributed to a dearth of "need-based scholarship grants, to minority or any other applicants" (which has since changed); an "[unwillingness] to engage in any significant preferential affirmative action admissions program"; and "its general reputation as a conservative law school." In 2004, the school admitted 63 African Americans to the law program; seven accepted the offer.
Faculty critics, however, place the blame for George Mason Law's low enrollment of African-American students elsewhere: on the distorting effects of affirmative action. If the school has historically been more reluctant to embrace race-conscious admissions policies than its peer institutions, then, the theory goes, minority students admitted to Mason would have higher-ranked alternative choices than their white and Asian peers. So, it shouldn't be surprising that “black students tend to turn down our offers” in disproportionate numbers, said Michael I. Krauss, a law professor on the faculty.
Standards and Accreditation
The ABA's standards on equal opportunity and diversity affirm that law schools must take "concrete action" to provide "full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity."
An attached interpretation to the standard clarifies, moreover, that the ABA does not have specific policy recommendations for achieving those goals -- a standard that critics have attacked as "ambiguous" at best and disingenuous at worst.
"This Standard does not specify the forms of concrete actions a law school must take to satisfy its equal opportunity and diversity obligations," the interpretation states. "The determination of a law school’s satisfaction of such obligations is based on the totality of the law school’s actions and the results achieved. The commitment to providing full educational opportunities for members of underrepresented groups typically includes a special concern for determining the potential of these applicants through the admission process, special recruitment efforts, and programs that assist in meeting the academic and financial needs of many of these students and that create a more favorable environment for students from underrepresented groups."
The ABA itself, however, wrote an amicus curiae brief in support of the University of Michigan Law School's affirmative action policies in the 2003 Grutter v. Bollinger case, in which the Supreme court allowed the voluntary use of race in admissions to achieve diversity as long as it was one among many factors. “[I]t is unquestionable that the improvement in minority participation in our law schools, and thus in our legal system, has been achieved largely by the use of race-conscious admissions policies such as those under attack here,” the brief stated.
Gail Heriot, a professor at the University of San Diego School of Law and a former associate dean at George Mason Law, cited the document in her concurring statement in the U.S. Commission on Civil Rights's 2007 Report on Affirmative Action in American Law Schools. Heriot, who is a member of the bipartisan commission, first publicized the numbers from the public records request, which described student data after she left the school, in a blog post last week critical of the ABA's practices on diversity.
"I think it’s fair to say that the standards [encourage] schools to seek diversity in an individualized way," said Steven R. Smith, dean of California Western School of Law and former chairman of the ABA Section on Legal Education and Admissions to the Bar. "In that sense, I think they’re fairly open to schools being able to approach diversity in ways they want, as is true in most accreditation standards."
The ABA said it completed its most recent periodic inspection of the law school in 2007, a requirement for maintaining accreditation status, which is necessary for enrolled students to be eligible for subsidized federal loans. While critics of the ABA's diversity practices have sounded the alarm about George Mason potentially losing its accreditation, those with knowledge of such proceedings seem to be in consensus that it was never truly in danger.
“In my opinion, it’s quite unusual for a school to be disciplined” severely, Smith said.
The diversity rules have come under fire from, among other places, the Department of Education, which certifies accreditors and last year ordered the ABA to report on how it applies the standard.