The legal profession’s efforts to become as diverse and inclusive as the society it serves are Sisyphean. Greek legend tells of King Sisyphus of Corinth, condemned to toil through eternity, slowly rolling a boulder to the summit of a steep hill, helplessly watching it roll down the other side, then endlessly repeating the ordeal. Like Sisyphus, our profession far too often takes one bold step forward to promote diversity, then takes another step backward. So it is with the ABA’s recent consideration of amendments to two law school accreditation standards, Standards 206 and 316—the boulder crests the hill, then rolls down the other side.
The U.S. Department of Education recognizes the ABA Council and the Accreditation Committee of the Section of Legal Education and Admissions to the Bar as the accrediting agency for the 205 ABA-approved law schools. By law, they operate independently from the ABA itself, with the Council developing accreditation standards like Standards 206 and 316 to ensure that law schools create sound programs for legal education. On the one hand, the amendment to Standard 206 (Diversity and Inclusion) would strengthen the obligation that law schools “demonstrate by concrete action a commitment to diversity and inclusion.” On the other hand, the revised Standard 316 (Bar Passage) would hamstring the ability of law schools to comply with Standard 206 by toughening the bar passage requirement for accreditation.
Consistent with changes enacted in August 2014, proposed Standard 206 reinforces that law schools must provide an environment embracing diversity and inclusion; offer members of underrepresented groups, especially racial and ethnic minorities, the opportunity to study law and enter the profession; and have a diverse faculty, staff and student body. Interpretation 206-2 to the standard (under the revised standard, 206-4) encourages law schools to use “special recruitment efforts” for students from underrepresented groups. Just last month, the U.S. Supreme Court upheld a race-conscious admissions program in Fisher v. University of Texas under the Equal Protection Clause. But even if the court had struck down the Texas affirmative action plan, Interpretation 206-1 suggests that constitutional and statutory prohibitions against considering race, ethnicity or national origin in the admissions process will not justify a school’s non-compliance with Standard 206.
One group of law schools epitomizes the goals of Standard 206, having as part of its mission to create a pipeline for underrepresented minorities, particularly African Americans, into the legal profession—the diversity-rich law schools of our Historically Black Colleges and Universities (HBCUs): Florida Agricultural & Mechanical University College of Law; Howard University School of Law; North Carolina Central University School of Law; Southern University Law Center; Texas Southern University Thurgood Marshall School of Law and The University of the District of Columbia David A. Clarke School of Law. According to ABA-required disclosures, compiled by the Section of Legal Education and Admissions to the Bar, law schools had a total enrollment of 127,599 students for the 2013-14 academic year. Among these students, 23.6% reported themselves as minorities. The percentage of minorities attending HBCU law schools today is more than three times higher than that figure.
Conscious of their mission, the HBCU law schools sometimes accept students that other schools will not, as do other schools living up to their diversity commitment under Standard 206. This practice, however, may have to be curtailed because of the significant toughening of Standard 316, the bar passage rule. The new standard would require schools to prove that at least 75% of students in each class have passed a bar examination within two years of graduation.
Sound easy? Not really. According to the National Conference of Bar Examiners, the 2015 national average bar passage rate for first-time exam takers was only 70%, while the pass rate for all takers was a mere 59%.
A law school can presently satisfy Standard 316 in two ways. First, law schools are now given five years, not two, to meet the 75% bar passage standard, and can reach this goal based upon identifying the results for only 70% of the students in a graduating class. Next, the current rule provides a “gap standard,” again based upon 70% of each class, allowing for law schools to demonstrate that their bar passage rate is no more than 15 points below the average first-time bar passage rate for their local jurisdiction. The elimination of the gap standard for law schools drastically raises the stakes for all schools now willing to accept students with low LSAT scores or undergraduate GPAs.
The HBCU law school deans—Shelley Broderick at UDC, Phylliss Craig-Taylor at North Carolina Central, Felecia Epps at Florida A&M, Dannye Holley at Texas Southern, Danielle Holley-Walker at Howard, and John Pierre at Southern—have banded together to fight the adoption of the new Standard 316. They point out that minority law graduates, whether at predominately white law schools or HBCUs, tend to have a lower bar passage rate than their white counterparts. Consequently, proposed Standard 316 will disproportionately impact law schools with a high concentration of students of color, such as HBCU law schools.
If the amendment passes, the accreditation of the HBCUs could quickly be at risk, disrupting the recruitment and retention of students, faculty and staff, and eroding alumni and donor support. Worse, the damage to diversity in the profession would be felt beyond the walls of the HBCUs. The HBCU deans point out that their schools typically produce more African American graduates admitted to the bar than any other law school in their jurisdictions. Indeed, several HBCUs produce more new lawyers of color than all the other law schools in their jurisdictions combined.
To avoid jeopardizing their accreditation, HBCUs and other law schools might be forced to toughen their admission requirements. Historically, minority applicants score lower than white applicants on the LSAT. Thus, the adoption of revised Standard 316 could see a rise in rejections for minority candidates at HBCUs and other law schools nationwide. Tighter admissions requirements could mean fewer lawyers of color.
In short, what Standard 206 would giveth, Standard 316 would taketh away.
In the latest Syllabus, the e-newsletter of the Section of Legal Education and Admissions to the Bar, Section Managing Director Barry Currier seems to suggest that standards like Standard 316 are designed, in part, to protect applicants ill-equipped for law school but admitted anyway for potentially good reasons (i.e., to promote diversity) or bad (e.g., to generate revenue). As education costs skyrocket and the job market plummets, law students ill-prepared to graduate or to pass the bar are left unemployed and saddled with debt. The trick in setting appropriate accreditation standards, says Currier, is finding the right balance between providing opportunity for law study and avoiding exploitation of law students.
The HBCU law deans undoubtedly appreciate the need to strike this balance. What troubles them is that the Council is considering the proposed changes without an in-depth assessment of their potential impact. Requiring law schools to prepare their students to pass the bar—every law school graduate’s rite of passage from law student to lawyer—seems fair; assuming that the same passage rate ought to apply for all jurisdictions when examinations differ from one to the other seems less fair.
Bar passage rates may be a critical variable in the equation to determine whether a law school is properly preparing its students for the practice of law. The HBCU deans do not oppose a standard tied to bar passage. They simply feel that figuring out that magic number ought to be the subject of intense study before endangering the accreditation of any law school.
Adoption of the revisions to Standards 206 and 316 is by no means imminent. The Council has tabled its consideration of proposed changes to Standard 206, but will hold a hearing on Standard 316 in August during the ABA Annual Meeting in San Francisco, California. The Council may vote on a final proposal at its October 2016 meeting, then request House of Delegates approval at the February 2017 ABA Midyear Meeting. The House of Delegates may not reject a proposed amendment to an accreditation standard and can only refer a proposal back to the Council for reconsideration twice, leaving it for Council to decide whether to ultimately adopt an amendment like the proposed Standard 316.
Until that happens, the HBCU law school deans will fight its adoption and urge the ABA to thoroughly re-examine its necessity. Recently, a DOE committee recommended that the ABA’s power to accredit new law schools be suspended a year for, among other things, failing to implement its student achievement standards. The Council is under intense pressure to demand that all law schools adhere to metrics measuring quality legal education. The HBCU deans fear that yielding to this pressure without proper study could threaten the very existence of their schools, which have historically given this country some of its finest lawyers of color, and of all law schools striving to meet their commitments to diversity and inclusion under Standard 206.
About the Author
Robert R. Furnier is a partner in the Furnier Muzzo Group LLC, a law firm in Cincinatti, Ohio. He can be reached at 513.792.6720 or RFurnier@FurnierLaw.com.