Sunday, November 17, 2019

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Abstract

Excerpted From: George B. Shepherd, No African American Lawyers Allowed: The Inefficient Racism of the ABA's Accreditation of Law Schools, 53 Journal of Legal Education 103 -156, 108-131 (March 2003) (203 Footnotes) (Full Document)


GeorgeShepardThe American Bar Association acknowledges the national scandal of the low number of African-Americans in the legal profession: only 4 percent of lawyers are black, compared to 13 percent of the population. Blacks are less represented in the law than in almost any other profession, including physicians. The underrepresentation in the legal profession oppresses blacks in pervasive, insidious ways. As Tocqueville wrote of the United States in the 1830s, the “aristocracy ... occupies the judicial bench and bar.” Much the same is true today. A law degree is a prerequisite for many positions of economic advantage and political power. In part because few blacks are lawyers, few blacks join the high ranks of wealth and authority. Moreover, the absence of black attorneys eliminates the ability of many blacks to obtain legal services at prices they can afford.

The ABA professes to be dedicated to increasing the number of minority lawyers. It claims that one of its main missions is to “increase racial and ethnic diversity at all levels of the legal profession.” Indeed, the ABA's president, William Paul, named diversity in the profession as the ABA's central priority, and indicated one of the ABA's primary objectives: “Increase the number of minority students who attend and graduate from law school.” The ABA has proceeded on many fronts, creating commissions, diversity initiatives, action groups, councils, “diversity days,” and scholarships.

The ABA has also sought to embody its commitment to diversity and affirmative action in its standards for accrediting law schools. Standard 211, requiring an “Equal Opportunity Effort,” demands that law schools affirmatively seek out and provide special help to minority students. In compliance with the ABA's mandate, accredited schools routinely employ affirmative action programs that admit black applicants with substantially lower LSAT scores and undergraduate grades than white applicants. Recognizing that, nonetheless, blacks' relatively low LSAT scores often prevent them from gaining admission to law school, the ABA has suggested that law schools “develop alternative admission criteria and de-emphasize reliance on LSAT scores.”

However, all of the ABA's diversity efforts ring hollow. It is the ABA itself that caused blacks to be excluded from the profession in the first place. The ABA, collaborating with state governments and courts, has created and maintains two barriers that prevent blacks from entering the legal profession in larger, fairer numbers. The first is the bar exam. A long literature describes both how the bar exam excludes blacks at a much higher rate than whites and how the bar exam fails to test real lawyering ability.

This paper focuses on the second high barrier to blacks' full entry into the legal profession: the ABA's elaborate system for accreditation of law schools. Almost all states grant licenses to practice law only to students who have graduated from ABA-accredited law schools. The ABA's accreditation standards operate generally to accredit law schools that serve white students but to deny accreditation to law schools that would serve black students. The end result is that, if there were no affirmative action, U.S. law schools would each year admit fewer than 2,000 blacks.

As I will show, the racist impact of the ABA's accreditation system takes two forms: academic racism and financial racism. The ABA's standards inflict academic racism because they exclude disproportionately far more blacks than whites. The standards deny accreditation to schools with students whose academic qualifications fall below certain limits; blacks, more than whites, lack the required qualifications. For example, the ABA generally denies accreditation to any school for which the average LSAT score is below 143. The average LSAT score for blacks is 142, compared to 152 for whites. This accreditation standard alone causes the ABA to grant accreditation to schools that serve average whites, but to shut down any school that would serve average blacks. Likewise, the ABA denies accreditation to schools whose students have lower undergraduate grades or pass the bar exam at lower rates. Like the LSAT accreditation cutoffs, these requirements filter out schools that would serve blacks.

No principled basis exists for these requirements. For example, the LSAT fails to predict eventual ability to pass the bar exam, much less lawyering ability. Moreover, even if lawyers with low LSAT scores were less able, these lawyers could nonetheless readily complete many normal legal tasks that are not highly complex.

In addition, ABA accreditation imposes financial racism. Accreditation requirements cause law schools' costs and tuition levels to increase substantially. For example, the requirements that govern law schools' libraries routinely increase a school's costs by more than $4,000 per student per year. Together, the various requirements probably more than double schools' costs. To survive, all law schools except taxpayer-subsidized state schools or private schools with large endowments must pass the costs along to their students by raising tuition. In addition, the requirements impose other burdens on students, such as mandatory college education and three years of law school, that increase the cost of becoming a lawyer to more than $200,000. The ABA forces one style of law training, at Rolls-Royce prices. It shuts out many blacks, whose families have far lower average incomes and wealth than whites. The availability of student loans reduces the harms little. The jobs that most blacks could obtain from the low-ranked law schools that they could attend offer salaries too small to permit repayment of the necessary large loans. The ABA's financial racism is as effective in excluding most blacks from the profession as a rule that specifically limited the numbers of black lawyers and predominantly black law schools.

Affirmative action efforts counteract only a modest part of the system's discriminatory impacts. Without affirmative action, the accreditation system would deny admittance to any law school to more than 78 percent of black applicants. With affirmative action, the system still rejects more than 54 percent of blacks, compared to only 25 percent of whites. It is now even more difficult for most blacks to attend law school than it was in 1920, before the civil rights movement eliminated direct racist discrimination. Moreover, the system undoubtedly deters tens of thousands of additional blacks from even applying to law school.

The recent attacks on affirmative action make even more urgent the elimination of the accreditation system. As the attacks against affirmative action intensify further, even affirmative action's modest ameliorating impacts may end. Then blacks will bear the accreditation system's full discriminatory brunt. The large discriminatory wounds will no longer be even partly concealed by the affirmative action Band-Aid.

It is no accident that accreditation harms black law schools and black students. During the 1920s and 1930s the bar, the courts, and state governments imposed the accreditation system as an intentional means to exclude blacks and other minorities from the profession to reduce competition for existing white lawyers. Those who presently operate the system do not harbor personal racist beliefs; they merely believe that admitting more lawyers into the profession, many of whom would be black, would harm consumers and the profession. However, these well-intentioned people tenaciously enforce a deeply discriminatory system with roots in a racist past. It is the system, not those who currently operate it, that is racist. It is the system's discriminatory impacts, openly intended by those who originally established the system, that make it so.

Primarily because of its racist impacts, but also for other important reasons, the ABA's accreditation requirement should be eliminated. People without a degree from an accredited law school should be able to practice law. Removing the flawed, artificial accreditation bottleneck would allow a diversity of training methods. The change would not in fact be drastic, and it would create many benefits but few harms. The law would cease to be a profession only for a highly paid, mainly white elite. Instead the profession, opening itself to people of diverse races and socioeconomic backgrounds as before, would regain the rich benefits of the system that existed for more than a century before restrictive and discriminatory accreditation and bar exams began in the 1920s and 1930s. More law schools that served minorities and the poor would open, with streamlined programs and cheaper tuition. The current system's skills and high-end qualities would continue, while a freer market for variety would quickly open up. To Rolls-Royce legal educations would be added Buicks, Saturns, and Fords. More blacks and other minorities would become lawyers, matching the rising proportions in other professions. The proportion of blacks in law schools would begin to match the much higher proportion in undergraduate education, where accreditation is weaker.

The new system would develop a wider range of talent, including lawyers at $60, $40, and even $25 an hour. This would fit the true diversity of legal needs, from simple to complex. With cheaper education available to more people, some lawyers for the first time would be willing and able to work for far less than at present. Some lawyers would continue to charge $300 per hour or more. However, the new system would allow clients with simpler problems to find much cheaper legal services.

In its variety of available services and prices, the legal profession would join other healthy professions, such as the accounting profession. There, accounting and tax services are available not only for $300 per hour at the big accounting firms, but also for $25 per hour at H & R Block. Moreover, cheaper legal services would permit the poor, many of whom are minorities, finally to enforce their legal rights. Cheaper lawyers would especially help to serve poor and middle-class blacks, a group with especially large needs for legal services because of racial discrimination.

The addition of many more lawyers would produce little increase in legal malpractice or fraud, and the quality of legal services would not decline. Sophisticated consumers, such as corporate general counsel, do not need accreditation to be able to choose competent lawyers. Although the poor and the middle class might benefit marginally from the protections that accreditation provides, accreditation tends to make legal services too expensive for these groups to afford. Private institutions would arise within the market for legal services to protect these consumers and to ensure that each legal matter was handled by lawyers with appropriate skills and sophistication. Large, expensive law firms would continue to handle complicated, high-stakes transactions and litigation. However, law companies that resembled H & R Block would open to offer reliable, inexpensive legal services for simple matters. The companies would monitor and guarantee the services of their lawyer-employees. Furthermore, elimination of accreditation would reduce the need for government subsidies for legal services for the poor, for state law schools, and for student loans.

This is a modest, safe proposal. It merely reestablishes the system that exists in other professions. In business and accounting, for example, people may provide full-quality basic services without attending an accredited school or passing a qualifying exam. A person who seeks to manage a local McDonald's franchise need not attend business school first. Yet there is no indication that the level of malpractice or fraud is higher in these fields than in law. Nor is there any indication that malpractice and fraud were more frequent during the century before accreditation and the bar exam, when lawyers like Abraham Lincoln practiced.

Indeed, the ABA's rigid forms of accreditation and the bar exam may have caused malpractice and fraud to be more frequent in law than in other fields. Accreditation and the bar exam may lull the public into the dangerously false belief that any lawyer who has graduated from an accredited school and passed the bar exam is competent and trustworthy for any legal task.

More effective and selective means exist for protecting the public. Discipline of bad lawyers could be strengthened. The bar exam could remain mandatory, but no one would be excluded from the profession on account of it. Instead, bar exam scores would be public, and consumers could choose among lawyers' various combinations of price and accomplishment, as represented by their scores. Likewise, as in other fields, accreditation might continue as a voluntary exercise, which some schools might choose to undergo in order to attract better students.

Earlier papers have addressed other inefficiencies and harms of the accreditation process and have called for change. Papers have also focused on the discriminatory impacts of the bar exam. This is the first analysis of the discriminatory impact of accreditation.

This paper's analysis applies more broadly than just to blacks because blacks are not the only group that suffers from accreditation's harms. Hispanics, Mexican-Americans, and other groups with relatively low test scores, grades, and incomes are also injured. Incomes for Hispanics and Mexican-Americans arear lower than for whites. Likewise, their average LSAT scores and grades are lower than for whites, although the difference is not as great as for blacks.

I proceed as follows.

Part I describes the law school accreditation system's history of intentional racism.

Parts II and III discuss the system's academic and financial racism.

Part IV shows that affirmative action fails to counteract the racism's harms.

In part V, I discuss the racism's harmful impacts, both on the blacks whom the system excludes from law school and on the community.

Part VI shows that elimination of the accreditation system would provide many benefits.

[. . .]

[Elimination of the ABA system would] . . .would empower African-Americans. The combination of greater availability of legal services to blacks, higher black incomes, more black lawyers and judges, and more black political and business leaders would tilt the playing field back toward blacks. Blacks would gain economic power as well as authority in the courtroom, in legislatures, and in other areas.

As beneficial as reducing the barriers to entry might be, that may simply not occur. Recently, some law school deans have sought to reduce the intrusiveness of accreditation, at least to some extent. Two decades ago, Stanford Law School's dean even argued for the elimination of accreditation completely, retaining only the bar exam. However, most of those with power to eliminate the ABA system or ease the exclusionary impact of the bar exam benefit from maintaining the status quo. Existing law teachers and lawyers benefit; the system reduces competition from new schools, new teachers, and new lawyers. Yet members of these groups often can control whether the system continues. Law faculty dominate bar association committees that decide whether to maintain the system. State supreme courts and state legislatures determine whether a state will require graduation from an ABA-accredited school and passage of a bar exam. All state supreme court justices are lawyers, and lawyers dominate state legislatures. Because of the political power of existing law faculty and existing lawyers, the elimination of barriers will not come quickly or easily.

George B. Shepherd is a professor of law at Emory University.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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