For diversity: Lets talk less about pipelines and more about why blacks are not admitted

  • Aaron Taylor
by Aaron Taylor
In higher education diversity work, we talk a lot about pipelines — the metaphorical portals through which students progress until they reach a desired educational endpoint. Much of how we frame pipelines revolves around the idea of inserting and keeping students on the paths to attainment. This conception tends to focus on students, their experiences and deficiencies. How do we get them and keep them in the pipeline?  
But the hyper-focus on pipelines overshadows the deleterious impacts that structural barriers have on educational attainment. Put more directly, pipelines are not the only issue. More attention needs to be paid to the highly flawed means in which we assess merit in higher education — and in life. Solving so-called pipeline issues requires also closing the various sieves through which certain types of human capital are disproportionately discredited and disregarded. This point is acutely highlighted by the experiences of black people who aspire to be lawyers.    
The aftermath of the social and legal movements that comprised the Civil Rights Era brought about vast increases in the numbers of black students enrolled in colleges and universities, particularly in formerly all-white institutions. Law schools were antagonists in some of the most consequential court cases that led to the end of state-imposed segregation. We owe profound debts to Lloyd Gaines,  Ada Lois Sipuel,  Heman Marion Sweatt, and others who gave their lives, literally in some cases, to broadening educational opportunities for marginalized people. But their fight was not about filling pipelines; it was about closing sieves rooted in the systematic exclusion of people based on illegitimate factors — race in their case. We have made tangible progress since the days when black and white students were educated separately via formal policies; but the legacies of that ostensibly bygone era still haunt us.  
One of the most salient characteristics of the legal profession is its lack of diversity. In 2016, blacks, Latinos, and Asians comprised 15 percent of lawyers, compared to 37 percent of the overall population. Blacks and Latinos are especially underrepresented, collectively comprising 31 percent of the population, but only 10 percent of lawyers. The path to the practice of law is highly regulated, with legal education at the center.  Therefore, the dearth of diversity among lawyers falls squarely on the laps of law schools.  
The law school admissions process is typified by vast racial and ethnic disparities in outcomes. During the 2015-16 cycle, 44 percent of black applicants did not receive even one offer of admission. This was the highest proportion of exclusion among all groups, and almost three times the 17 percent proportion among white applicants. The proportions among Latino/a and Asian applicants were 32 percent and 25 percent respectively.  
In 2015-16, it took 1,785 applications from black prospective students to yield 1,000 offers of admission. Overall, the pool needed to yield 1000 offers was 1,315; among white applicants, it was 1,176. But it gets starker. For many reasons, including those related to costs, some admitted applicants forego the opportunity to attend law school. In 2015-16, 19 percent of black admitted applicants did not enroll; this was the highest proportion among all racial and ethnic groups. When this “melt” is considered, it took an astonishing 2,273 black applicants that year to yield 1,000 Black law students. As shown below, this was by far the highest requisite pool among all groups:
Overall : 1,538
Asian : 1,613
Black : 2,273
Latino/a : 1,754
Native American : 1,695
White : 1,389
These trends illustrate the sieve problem. If black applicants were admitted and enrolled at the same rates as overall, there would have been more than 2,000 additional black first-year students in 2015-16.  Matching even the Latino/a rates would have resulted in 1,100 more black students.  
The conventional explanation for these trends are rooted in perceived differences in applicant quality. This is the pipeline ideology that drives how we frame the dearth of diversity in legal education — applicants of certain groups are less qualified than others. This claim, while seductive, merits close scrutiny. Vast racial and ethnic LSAT score disparities form much of the basis of this claim. The average score for black LSAT-takers is 142 — eleven points lower than the 153 average for white and Asian test-takers. Latino/a test-takers score an average of 146.   The average for black test-takers was lower than the entering class median of all but two ABA-approved law schools in 2015. Only fifteen schools had median scores at or below the Latino/a average.
The LSAT is designed to be a partial predictor of first-year grades; therefore, it has value as an admissions factor. Unfortunately, that value is often inflated by law schools, leading to rampant misuse. LSAT scores are commonly couched in the broader context of a student’s potential as a lawyer. But the LSAT does not predict this potential well, surely not well enough to be the primary selection criterion. By examples, Texas Tech recently found that the LSAT explained just 13 percent of variance in bar exam scores of its law graduates. The University of Cincinnati found that among its law graduates the “LSAT score does not correlate with Ohio bar exam performance.” Two professors from the University of California Berkeley found that the LSAT had very weak (or no) value in predicting lawyering skills among that school’s law graduates. Even the test’s designer, the Law School Admission Council, recently cautioned against using LSAT scores to assess bar passage risk. 
Studies of empirical relationships, like those cited above, are uncommon in legal education. In the absence of this data, inflated assumptions about the LSAT’s power pervade, to the inequitable detriment of many applicants, most profoundly black applicants. Moreover, the pressures of maintaining rankings and preserving perceptions of prestige cannot be overstated. In the end, law schools systematically exclude people based on the questionable application of standards, that themselves merit questioning. This is not a pipeline problem. This is a sieve problem.
Increasing diversity in legal education will require recognition that the dearth is not just about inadequacies of applicants. It is arguably mostly about the manners in which law schools exclude and marginalize. The inappropriate application of admission criteria that results in the disproportionate exclusion of certain people is little different from past practices that we now find appalling. Heaping tuition discounts on students with the least financial need at the literal expense of those with the most need would be considered a racket in other contexts. Failing to create inclusive environments where all students feel supported belies our rhetorical commitments to diversity. Law schools — and higher education, generally — must be accountable for their own actions and inactions, rather than hiding behind pipeline ideology. This is why we need to talk less about pipelines and more about sieves.
The author is executive director of the AccessLex Center for Legal Education Excellence and an associate professor of law at Saint Louis University.