Legal education reform, diversity, and access to justice

Rutgers Law Review

Volumn 61, Issue 4, 2009, Pages 1011-1036

  Anderson, Michelle J ^a  

^a CUNY School of Law   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 75449104296     PISSN: 00360465     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (123)

1. Law Sch. Admissions Council, Volume Summary Data through Jan. 9, 2009 ("Percentages of Various Populations");
2. see generally ELIZABETH CHAMBLISS, ABA, MILES TO GO: PROGRESS OF MINORITIES IN THE LEGAL PROFESSION (2005) (summarizing the findings of the ABA Commission on racial and ethnic diversity in the legal profession).
3. Am. Bar Ass'n, Statistics About Minorities in the Profession from the Census, http://www.abanet.org/minorities/links/2000census.html (last visited Aug. 21, 2009);
4. U. S. Census Bureau, Profile of General Demographic Characteristics: 2000 (2000), http://censtats.census.gov/data/us/01000.pdf (last visited Aug. 21, 2009).
5. CHAMBLISS, supra note 1, at 1, 7, 67.
6. Id. at 66.
7. Id.
8. Id.
9. See Sam Howe Vernovek, Vote in California is Motivating Foes of Anti-Bias Plans, N. Y. TIMES, Nov. 10, 1996 at 1 (stating that 54 percent of the voters in California supported Proposition 209 which changed the state constitution to end affirmative action based on race, sex, or ethnicity in the admissions policies of state educational institutions). In 2006, a similar measure to amend the Michigan constitution passed. See Peter Schmidt, Michigan Overwhelmingly Adopts Ban on Affirmative Action Preferences, THE CHRON. OF HIGHER EDUC., Nov. 17, 2006, http://www.chronicle.com/article/Michigan-Overwhelmingly-Adopts/5563.
10. CHAMBLISS, supra note 1, at 78.
11. Id.
12. MARJORIE M. SHULTZ & SHELDON ZEDECK, IDENTIFICATION, DEVELOPMENT, and VALIDATION OF PREDICTORS FOR SUCCESSFUL LAWYERING 14 (2008).
13. Kaplan Test Prep, Guaranteed Results on the LSAT or Your Money Back, http://www.kaptest.com/LSAT/The-Kaplan-Advantage/guaranteed-results.html (last visited Aug. 21, 2009).
14. Id.
15. Testmasters, Why We Are the Best, http://www.testmasters.net/lsat/ whyWeAreTheBest/we-are-best.aspx (last visited Aug. 21, 2009).
16. William C. Kidder, Does the LSAT Mirror or Magnify Racial and Ethnic Difference in Educational Attainment?: A Study of Equally Achieving "Elite" College Students, 89 CAL. L. REV. 1055, 1085 (2001) (discussing stereotype threat research);
17. see also Claude M. Steele and Joshua Aronson, Stereotype Threat and the Intellectual Test Performance of African Americans, 69 J. PERSONALITY & SOC. PSYCHOL. 797 (1995) (discussing the results of stereotype threat studies performed on African Americans and the "role of stereotype vulnerability in the standardized test performance of ability-stigmatized groups").
18. The category of "Asian/Pacific Islander" includes a heterogeneous and complex grouping of people with different average educational backgrounds, wealth, and privilege, including people having origins in Burma, Cambodia, China, Guam, Hawaii, India, Indonesia, Japan, Korea, Laos, Malaysia, Pakistan, the Philippine Islands, Samoa, Thailand, and Vietnam, among many other countries. It is important to note: "[t]here are no Asians in Asia, only people with national identities.... But on this side of the Pacific there are Asian Americans. This broader identity was forged in the crucible of racial discrimination and exclusion: their national origins did not matter as much as their race." RONALD TAKAKI, STRANGERS FROM A DIFFERENT SHORE: A HISTORY OF ASIAN AMERICANS 502 (1998).
19. Law Sch. Admissions Council, Volume Summary Data through Jan. 9, 2009, http://www.lsac.org/Applying/lsac-volume-summary.asp ("Average UGPA, Average LSAT and Counts by Ethnic Group-Fall 2003 to Fall 2007 Applicants to at Least One ABA Approved Law School.").
20. Id. A study by the Latino National Political Survey, directed at people of Mexican, Puerto Rican, and Cuban origin, indicated that "Latinos" prefer to identify themselves by their national origin-as Mexicans, Puerto Ricans or Cuban-Americans, rather than a pan-ethnic label. Robert Suro, Hispanic Pragmatism Seen in Survey, N. Y. TIMES, Dec. 15, 1992, at A20.
21. Kidder, supra note 14, at 1080.
22. More than a fourth of top liberal arts colleges no longer require high school applicants to take the SAT for precisely these reasons. See Tamar Lewin, Students' Paths to Small Colleges Can Bypass the SAT, N. Y. TIMES, Aug. 31, 2006, http://www.nytimes.com/2006/08/31/education/ 31sat.html ("Test scores... present a skewed picture both of poor students who had little formal preparation and wealthy ones who spend thousands of dollars... on tutoring.").
23. See, e.g., Jeffrey S. Kinsler, The LSAT Myth, 20 ST. LOUIS U. PUB. L. REV. 393 (2001) (analyzing data from Marquette University Law School's graduating classes of 1998 and 1999);
24. David A. Thomas, Predicting Law School Academic Performance from LSAT Scores and Undergraduate Grade Point Averages: A Comprehensive Study, 35 ARIZ. ST. L. J. 1007, 1011-20 (2003)
25. (analyzing the LSAT scores, undergraduate GPA, and law school GPA of students at Brigham Young University's J. Reuben Clark Law School during the years 1973-2002).
26. CHAMBLISS, supra note 1, at 75.
27. 137 F. Supp. 2d 821, 870 (E. D. Mich. 2001), rev'd, 288 F.3d 732 (6th Cir. 2002), aff'd, 539 U. S. 306 (2003) (suggesting eliminating use of the LSAT in law school admissions altogether, or at least reducing reliance).
28. See AM. BAR ASS'N, STANDARDS FOR APPROVAL OF LAW SCHOOLS 147 (2007-2008), http://www.abanet.org/legaled/standards/20072008Standards WebContent/ Appendix%202%20LSAC%20Cautionary%20Policies.pdf ('The LSAT should be used as only one of several criteria for evaluation and should not be given undue weight solely because its use is convenient.").
29. See CHAMBLISS, supra note 1, at 775;
30. see also Pamela Edwards, The Shell Game: Who is Responsible for the Overuse of the LSAT in Law School Admissions?, 80 ST. JOHN'S L. REV. 153, 157 (2006).
31. See CHAMBLISS, supra note 1, at 78;
32. see generally SHULTZ & ZEDECK, supra note 10, at 86-87.
33. SHULTZ & ZEDECK, supra note 10, at 86. For analysis of how the LSAT affects law school rankings, see Edwards, supra note 24, 156-57.
34. Poverty correlates strongly with race and the racial disparity in income between whites and blacks may be getting worse. From 2000 to 2006, for instance, the black median household income as a percentage of white median income dropped from 65 to 61 percent. ANDREW KOHUT ET AL., PEW RESEARCH CTR., OPTIMISM ABOUT BLACK PROGRESS DECLINES: BLACKS SEE GROWING VALUES GAP BETWEEN POOR AND MIDDLE CLASS 4 (2007). In 2006, black median household income was $31, 969, Hispanic median income was $37, 781, and white median income was $54, 423. Id. at 12. In 2006, 24.3 percent of blacks, 20.6 percent of Hispanics, and 8.2 percent of whites lived in poverty in the United States. Id.
35. See, e.g., CAL. COMM'N ON ACCESS TO JUSTICE, ACTION PLAN FOR JUSTICE 4, 9 (2007), http://www.calbar.ca.gov/calbar/pdfs/comcom/CCAJ-Brochure.pdf ("[L]egal aid programs are still not able to provide even a minimal level of legal advice and assistance for 67 percent of the legal needs of California's poor.").
36. 372 U. S. 335, 344 (1963).
37. NATL RIGHT TO COUNSEL COMM., JUSTICE DENIED: AMERICA'S CONTINUING NEGLECT OF OUK CONSTITUTIONAL RIGHT TO COUNSEL 2 (2009), http://www.tcpjusticedenied.org/index.php?option=com- content&view=article&id=47&Itemid=86 (last visited Aug. 21, 2009).
38. LEGAL SERVS. CORP., DOCUMENTING THE JUSTICE GAP IN AMERICA-THE CURRENT UNMET CIVIL LEGAL NEEDS OF LOW-INCOME AMERICANS 18 (2005), http://www.lsc.gov/ justicegap.pdf.
39. Id. at 16.
40. See id. at 3 (reviewing data compiled between 2000 and 2005).
41. David L. Chambers, Richard O. Lempert & Terry K. Adams, Michigan's Minority Graduates in Practice: The River Runs Through Law School, 25 LAW & SOC. INQUIRY 395, 499 (2000).
42. See id. at 401 (explaining that minority alumni "make somewhat different career choices than white alumni, as they are more likely than white alumni to begin their careers in government or other public service or public interest jobs and somewhat less likely than white alumni to begin their careers or to work today in the private practice of law.... All Michigan alumni are disproportionately likely to serve same-race clients, so minority alumni provide, on average, considerably more service to minority clients than white alumni do. Among those Michigan graduates who enter the private practice of law, minority alumni tend to do more pro bono work, sit on the boards of more community organizations, and do more mentoring of younger attorneys than white alumni do.").
43. See, e.g., CTR. FOR CAL. HEALTH WORKFORCE STUDIES ET AL., STRATEGIES FOR IMPROVING THE DIVERSITY OF THE HEALTH PROFESSIONS 3 (2003) ("The underrepresentation of minorities in the health professions is a public health crisis.").
44. See id. at 6 ("Minority communities experience inferior access to health care and poorer health compared with communities populated primarily by non-Latino whites.").
45. Id.
46. Id.
47. See ASS'N OF AM. MED. COLLS., DIVERSITY IN MEDICAL EDUCATION 11 (2008) ("[E]nsuring a diverse pool of physician-scientists and clinical investigators is an essential step in eliminating health disparities.").
48. Id.
49. Id. at 52.
50. Id. at 11.
51. ASS'N OF AM. MED. COLLS., THE DIVERSITY RESEARCH FORUM: SUCCESSFULLY EVALUATING DIVERSITY EFFORTS IN MEDICAL EDUCATION 32 (2007).
52. Margaret Montoya, Professor at the University of. New Mexico in Law and Health Sci., Presentation to the CUNY Law faculty (Mar. 25, 2009) (notes on file with author). Professor Montoya holds a joint appointment at the University of New Mexico in Law and Health Sciences. ABA NET, Biography and Statement of Qualifications: Legal Scholar/Reporter Biographies, http://www.abanet.org/ diversity/summit/docs/Link-U.doc.
53. CHAMBLISS, supra note 1, at 7, 67.
54. CUNY Sch. of Law, Pipeline to Justice: A Novel New Program from CUNY Law, http://www.law.cuny.edu/clinics/JusticeInitiatives/pipeline.html (last visited Aug. 21, 2009).
55. A robust dialog on legal education reform, of course, started earlier than the 1992 publication of the MacCrate Report, with the advent of clinical legal education in this country and discussions about its import for the academy and the profession. There have been other important books advocating legal education reform from different perspectives. See, e.g., LANI GUINIER ET AL., BECOMING GENTLEMEN: WOMEN, LAW SCHOOLS AND INSTITUTIONAL CHANGE (1995). Although not specifically about law school admissions, another influential and important book focuses on affirmative action and its impact over time: DEREK BOK & WILLIAM BOWEN, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS (1998).
56. Anthony Alfieri, Against Practice, 107 MICH. L. REV. 1073, 1073 (2009).
57. WILLIAM SULLIVAN ET AL., EDUCATING LAWYERS FOR THE PROFESSION OF LAW 51-56 (2007).
58. ABA SECTION OF LEGAL EDUC. AND ADMISSIONS TO THE BAR, REPORT ON THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP (1992) [hereinafter MACCRATE REPORT].
59. See id.
60. Id. at 13-27.
61. Id. at 27.
62. Id. at 140-41.
63. Id. at 213-15.
64. Id. at 216-17.
65. Id.
66. See ROY STUCKEY ET AL., BEST PRACTICES FOR LEGAL EDUCATION: A VISION AND A ROAD MAP 1-5 (2007).
67. Id. at 11-37.
68. See generally id. (reasoning that law schools should self-regulate their behavior to improve legal education before reform is enforced externally).
69. Id. at 24.
70. See SULLIVAN, supra note 50, at 132-33.
71. Id. at back cover.
72. Id. at 185-86.
73. Id. at 24.
74. Id. at 191-92.
75. Id. at 81-82.
76. Id. at 80-81, 130, 192-93.
77. Cruz Reynoso & Cory Amron, Diversity in Legal Education: A Broader View, A Deeper Commitment, 52 J. LEGAL EDUC. 491, 492 (2002).
78. Antoinette Sedillo Lopez, Leading Change in Legal Education - Educating Lawyers and Best Practices: Good News for Diversity, 31 SEATTLE U. L. REV. 775, 776 (2004).
79. Id.
80. Id. at 777-80.
81. Id. at 779.
82. Irene Segal Ayers, The Undertraining of Lawyers and Its Effect on the Advancement of Women and Minorities in the Legal Profession, 1 DUKE F. FOR L. & SOC. CHANGE 71 (2009). Professor Beverly Moran argues further that values training in race, class, and gender should be incorporated throughout the curriculum as a form of cultural competency: Training in gender, race, ethnicity, and class in law school is not primarily about social justice. Instead, lawyers with cultural competency are essential for the profession to properly serve the public. Yet, the new curriculum reform movement does not recognize an obligation to train law students in matters of gender, race, ethnicity, and class and how they shape legal rules. In contrast, the medical model fully accepts cultural competency as a fundamental practice skill after its own harsh history of segregation and gender exclusion. The failure to fully address gender, race, ethnicity, and class as part of the new curriculum reform movement has serious implications for the legal profession, particularly the profession's obligation to serve the public and pursue justice. BEVERLY MORAN, DISAPPEARING ACT: THE LACK OF VALUES TRAINING IN LEGAL EDUCATION-A CASE FOR CULTURAL COMPETENCY (forthcoming 2009).
83. In terms of the theory that law schools teach, Professor Alfieri argues that the Carnegie Report "overlooks the relevance of critical pedagogies in teaching students how to deal with difference-based identity and how to build cross-cultural community in diverse, multicultural practice settings...." Alferi, supra note 49, at 1092.
84. SULLIVAN, supra note 50, at 81.
85. To be fair, many discussions about diversity in law schools and in the legal profession do not connect a lack of diversity to a justice deficit for communities in need. See, e.g., Dennis W. Archer, Diversity and Legal Education, 37 IND. L. REV. 339 (2004); Reynoso & Amron, supra note 70, at 499.
86. Additionally, lawyers make, execute, and interpret laws and a healthy democracy requires representation by all segments of society in legislative, executive, and judicial processes.
87. See, e.g., Terry Smith, Speaking Against Norms: Public Discourse and the Economy of Racialization in the Workplace, 57 AM. U. L. REV. 523, 584 (2008) (explaining the difficulties encountered by minority and non-minority law professors and students who work towards creating a more diverse legal employment landscape);
88. Judith Kilpatrick, The Value of Difference: Practicing in a Diverse World, 42 ARK. LAW. 10, 11 (2007) ("Leaders of the legal profession, in Arkansas and nationally, also have noted the profession's lack of diversity and the need for improvement.").
89. CUNY Sch. of Law, Academic Philosophy, http://www.law.cuny.edu/academics/ AcademicPhilosophy.html (last visited Aug. 21, 2009).
90. See generally Susan Bryant & Elliot S. Milstein, Rounds: A "Signature Pedagogy" for Clinical Education?, 14 CLINICAL L. REV. 195 (2007) (discussing clinical rounds).
91. See, e.g., Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 CLINICAL L. REV. 33 (2001);
92. John Cicero, The Classroom as Shop Floor: Images of Work and the Study of Labor Law, 20 VT. L. REV. 117 (1995);
93. Stephen Loffredo, Poverty, Inequality, and Class in the Structural Constitutional Law Course, 34 FORDHAM URB. L. J. 1239 (2007).
94. See CUNY Sch. of Law, A Sequenced Program to Create Access to the Legal Profession and Educate Professionals for Public Interest Practice, http://www.aals.org/documents/curriculum/documents/CUNYDescription.pdf (last visited Aug. 21, 2009) ("We do not achieve our mission unless we support our graduates who are opening practices in underserved communities. As a result, CUNY School of Law continues to teach both theory and practice even after graduation. Once students graduate, they have an opportunity to join our Community Legal Resource Network (CLRN). CLRN emerged when traditional poverty legal service providers were hit by funding cuts. Our enterprising graduates responded by opening solo and small-firm practices operating on sliding-scale and reduced-fee bases in communities with little access to justice. CLRN weaves these alums into practice groups (e.g., Family Law, Immigration, Labor & Employment, etc.), utilizing technology to create a virtual law firm. For example, when a CUNY Law graduate returns to the Dominican immigrant neighborhood in which she grew up to begin a solo practice to serve the people of her community, she has access through a CLRN group subscription to Lexis Nexis, as well as access through the CLRN listserv to hundreds of other CUNY Law School alums, many of whom are experts in a range of areas that are new to her. CLRN helps new lawyers in community-based practice throughout the city to deal with the problems inherent in such practices: isolation, financial pressure, and the need to develop expertise. CLRN provides to these small practitioners serving communities in need some of the advantages that large law firm associates take for granted.").
95. See CUNY Sch. of Law, About CUNY School of Law, http://www.law.cuny.edu/about.html (last visited Aug. 21, 2009).
96. Id. In support of our diversity efforts, we have recently opened two new centers at CUNY Law: the Center for Diversity in the Legal Profession directed by Professor Pamela Edwards and the Center on Latino and Latina Rights and Equality directed by Professor Jenny Rivera. See CUNY Sch. of Law, Clinics & Programs, http://www.law.cuny.edu/clinics.htm (last visited Aug. 21, 2009).
97. CUNY Sch. of Law, About CUNY School of Law, http://www.law. cuny.edu/about.html (last visited Aug. 21, 2009). To be sure, like all law schools, CUNY Law faces its challenges in terms of addressing issues of race, privilege, and exclusion. Some faculty members are uncomfortable discussing these issues in the classroom. Paradoxically, CUNY's diversity may heighten the discomfort. There are so many vectors of difference among the student body, particularly because first-and second-generation immigrants bring varied notions of insider/outsider status to the dialog. Nevertheless, our students routinely raise issues of race and privilege and attempt to keep the dialog on these issues fresh and at the fore.
98. Reynoso & Amron, supra note 70, at 491 ("And many law students find that their school's hospitality seems to end with the last page of the recruitment brochure.").
99. AM. BAR ASS'N, supra note 23, std. 212 (a).
100. Id.
101. See generally Pamela Edwards, The Culture of Success: Improving the Academic Success Opportunities for Multicultural Students in Law Schools, 31 NEW ENG. L. REV. 739 (1997) (providing an analysis of the academic success of multicultural students).
102. Reynoso & Amron, supra note 70, at 494-95.
103. I will set aside programs that are not driven and directed by law schools. There are a few nonprofit organizations working on the diversity pipeline to law schools that are funded by law firms or the ABA. "In 1968, the Council on Legal Education Opportunity (CLEO) was founded as a non-profit project of the ABA Fund for Justice and Education to expand opportunities for minority and low-income students to attend law school." CLEO, About CLEO, http://www.cleoscholars.com/index.cfm?fuseaction=Page.viewPage&page1d=482 (follow "About CLEO" hyperlink) (last visited Aug. 21, 2009).
104. CLEO offers a comprehensive range of programs including a summer institute, mentorships, and law school programs. See id.
105. Legal Outreach is a more recent example of an excellent early-intervention pipeline program. See Legal Outreach, About Us, http://www.legaloutreach.org/content.cfm?cntid=1 (last visited Sept. 14, 2009).
106. Additionally, Latino Justice (formerly the Puerto Rican Legal Defense and Education Fund (PRLDEF)) offers the Luis J. DeGraffe Summer Academy as part of its comprehensive LawBound program for Latino students. Latino Justice PRLDEF, LawBound, http://www.prldef.org/legal-education/lawbound.html (last visited Aug. 21, 2009).
107. DeGraffe was a Professor at CUNY Law School and former PRLDEF education director. Id.
108. See Reynoso & Amron, supra note 70, at 500.
109. Street Law is one form of this kind of program, although Street Law has a specific purpose to provide a greater understanding of the law to those outside the legal profession and promote the use of interactive educational methods to develop academic, critical thinking, and civic skills. Its function as a possible pipeline is incidental. CUNY Law students engage in a robust Street Law program. See CUNY Sch. of Law, Program Goals & Structure, http://www.law.cuny.edu/goalsandstructnre.html (last visited Aug. 21, 2009).
110. See Widener Law, Widener Law Diversity Pipeline Program, http://law. widener.edu/CampusLife/ActivitiesandOrganizations/ StudentBarAssociationDelaware/DiversityPipelineProgram.aspx (last visited Aug. 21, 2009).
111. Ann Farmer, Feeding the Diversity Pipeline, STUDENT LAW., Apr. 2007, http://www.abanet.org/lsd/studentlawyer/apr07/ diversitypipeline.shtml.
112. See Charles Calleros, Enhancing the Pipeline of Diverse K-12 and College Students to Law School: The HNBA Multi-Tier Mentoring Approach, 58 J. LEG. EDUC. 327 (2008).
113. th Annual Education Law Conference, at http://www.usm.maine.edu/pdc/edlaw/wingspread.htm (last visited Aug. 21, 2009).
114. See Rutgers Sch. of Law-Newark, Foundations for Success, http://law.newark.rutgers.edu/admissions-financial-aid/foundation-success (last visited Aug. 21, 2009).
115. See TRIALS, About the Program, http://trials.atfoundation.org/ program/index/: pf-printable/style=print? (last visited Aug. 21, 2009).
116. Reynoso & Amron, supra note 70, at 500-01.
117. Associate Dean Mary Lu Bilek at CUNY Law has run the Pipeline to Justice Program on a day-to-day basis since its inception with extraordinary commitment and care. See CUNY SCH. OF LAW, THE PIPELINE TO JUSTICE: CUNY LAW ENHANCES ACCESS TO THE PROFESSIONS, http://www.law.cuny.edu/clinics/JusticeInitiatives/pipeline/pipeline.pdf.
118. Once admitted, pipeline students take the Summer Law Institute in the summer before law school commences and, once regular coursework begins, they have access to the range of in-depth academic support programs we offer to all CUNY Law students. We could not have a successful Pipeline to Justice Program without our very strong academic support program. At CUNY, in addition to teaching the lawyering skills touted by the legal reform canon, we teach academic skills. Paying close attention to academic skills is important because we admit a group of students who have uneven undergraduate educational backgrounds.
119. See Univ. of New Mexico, New Mexico's Academic Health Sciences Center, http://hsc.unm.edu/about/(last visited Sept. 14, 2009).
120. See N. M. First, Forum Background Report, Looking to the Future: Preparing for the Next Generation in Health Careers 16 (2008), http://www.nmfirst.org/townhalls/UNMBkgrdReportFINAL.pdf. These programs are funded through a federal grant from the Department of Health Resources and Services Administration, Health Careers Opportunity Programs, as well as the UNM School of Medicine and the State of New Mexico. Id.
121. Moreover, law school clinical programs can do more of this kind of communitybased work with more diverse students. Clinics can do more to support community organizing and mobilization, including support for organizations with race and ethnicity-based constituencies. See Sameer Ashar, Law Clinics and Collective Mobilization, 14 CLIN. L. REV. 355, 356-57 (2008). By moving from individual to collective representation models, law school clinics can support more systemic solutions to the intertwined problems of racism, homophobia, misogyny, and poverty. Id.
122. If all law schools made the same intensive efforts, however, rankings need not be affected.
123. See Widener Law, supra note 96.