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The Legacy and Opportunity of Affirmative Action
No full textIn higher education, affirmative action takes on the form of race-conscious admissions policies that allow colleges and universities to take account of an applicant’s race as one of many factors in their evaluation, ultimately allowing them to look beyond the confines of applicants’ past educational opportunities to get a sense of their true potential. Decades of restrictions on the scope of affirmative action and its legal underpinnings have limited its impact. At its best, though, affirmative action plays an important role in redressing centuries of educational inequality, and it benefits both present and future generations. Courts, admissions offices, and policymakers across the country should recognize affirmative action’s potential to redress the disadvantages faced by students of color in a persistently unequal education landscape.
Affirmative action facilitates the matriculation of talented, underrepresented students of color at quality educational institutions, particularly highly selective universities with competitive admissions. This immediately benefits both direct beneficiaries of affirmative action – who reap the rewards of a college education, their peers – who access the resultant educational benefits of diverse learning environments, and society at large – which benefits socially and economically from maximizing America’s pool of talented graduates and reinforcing our multiracial democracy. It also has intergenerational benefits, as having a college-educated parent is itself an advantage. By promoting degree attainment among Black students who may be or become parents, affirmative action can be a useful tool in redressing historical intergenerational disadvantage and unlocking opportunities that reflect and reward Black students’ talent and hard work
Law School in a Pandemic Ungrouped: How Online J.D. Experiences Varied Across Students
Full text linkAt the onset of the COVID-19 pandemic, law schools and students resiliently forged ahead, endeavoring — many for the first time — to pursue their J.D. programs online. AccessLex Institute® and Gallup partnered to survey law students about their experiences with online J.D. courses during this time, releasing two Law School in a Pandemic reports in 2021 and 2022 to discuss each year’s findings. This third and final report in the series examines the extent to which student perceptions of their J.D. programs during the pandemic differed by various characteristics — namely race/ethnicity, age, enrollment status, caregiver status, and law school tier.
Generally, we find that part-time students, caregivers, students ages 30 and older, and those attending tier-four (T4) ranked law schools were most receptive to online J.D. courses and reported more favorable experiences compared to their counterparts. And while there were few differences by race/ethnicity, we find that underrepresented students of color were more likely than White and Asian students to perceive that online courses allow more time to gain legal work experience and work to earn money. However, underrepresented students were less likely to report easy access to career services and to agree their J.D. program is worth the cost. These findings suggest that the appeal of online J.D. courses varies across student demographics. Law schools seeking to broaden distance learning opportunities can leverage these results to design equitable, quality online experiences for their students
Protecting Diversity: Can We Afford to Throw Out Grutter Before Its Expiration Date?
Full text linkWith landmark affirmative action decisions pending from the United States Supreme Court in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, this paper examines whether the educational benefits that flow from diversity acknowledged in Grutter v. Bollinger (2003) persist twenty years later in a law school context. Using data from the American Bar Association (ABA), the U.S. Census Bureau, and the Law School Survey of Student Engagement (LSSSE), we model law school campus diversity as a predictor of attrition, predicted law school GPA, and first-time bar passage among underrepresented law students of color. Campus diversity is operationalized as both a U.S. News-style index and as a factor derived from the Law School Survey of Student Engagement (LSSSE). Our findings demonstrate benefits for Black law students across the range of outcomes, likely without concomitant harm to other groups
The Kids Are Definitely Not All Right: An Empirical Study Establishing a Statistically Significant Negative Relationship Between Receiving Accommodations in Law School and Passing the Bar Exam
No full textMany factors can influence whether a person passes the bar examination on their first attempt. One factor that should not is whether that person has a “disability” that would mandate reasonable accommodations under the Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008. Unfortunately, before the publication of this Article, there has been no publicly available data that could be used to assess the relationship between receiving accommodations and passing the bar examination. To begin to remedy this absence of data, the author filed public records requests with sixty public law schools seeking information as to the number of students accommodated by each law school for the years 2019, 2020, and 2021. This data was then analyzed to see whether the percentage of accommodated students at a law school was correlated with bar passage rates. This analysis shows that there is a statistically significant negative relationship between the percentage of a law school’s student body who received accommodations and the school’s bar pass rate (controlling for other relevant factors). In other words, the more accommodated students a school has, the lower its bar passage rate will be
Investigating the Benefits of Live Remote Proctoring
Full text linkThis research project evaluated the Live Remote Proctoring (LRP) for the First-Year Law Students’ Examination (FYLSX) in terms of test performance, examinee experience, and exam violation incidents.
Utilizing LRP in the October 2022 FYLSX, the study compared this session to 20 previous exams spanning from 2012 to 2022 and analyzed post-exam feedback and violation reports. The findings indicate that LRP did not conclusively outperform previous remote testing modalities in terms of exam performance. While there was a modest improvement in pass rates, it fell within the expected range of historical fluctuations, suggesting that LRP may not have been the influencing factor. Furthermore, gender disparities in performance raise concerns, suggesting potential disadvantages for female examinees under the LRP modality. While LRP showed promise in reducing the rate of exam violations, the benefits observed from a single session\u27s data are not sufficient to establish a conclusion. The most notable concern with LRP was the overwhelmingly negative examinee feedback regarding the testing experience, mainly due to the live monitoring aspect.
Given these mixed results, if LRP continues to be used, exploring alternative providers might be necessary to enhance the testing experience
The Law Professor and the Therapist: Beyond Belonging There’s a Place (and Need) for Group Solidarity Among First Generation and Low-Income Students in the Law School Setting
No full textAs a greater portion of American society has been afforded entrée to colleges and graduate schools, this well-educated segment of society has come to rely on advanced education and the rituals of lengthy training for the professions to reproduce itself and its privileges. It is in this reality that the conditions for first-generation and low-income background students in law schools must be examined. Young people growing up in households where neither parent has a four-year degree disproportionately enroll in less-selective colleges, complete college at lower rates than their continuing-generation peers, and comprise only 22.5% of law school graduating classes. Outcomes for this demographic continue to lag in relation to their continuing generation peers even after graduation: their rate of employment in bar passage required or anticipated jobs was more than 11 points lower (84.3% vs. 73.2%). Concrete steps can and should be taken at the law school level to support these students. Providing first-generation and low-income law students with supportive group sessions facilitated by a law professor and a therapist can heighten the visibility of this student cohort, promote their wellbeing, and enable the formation of a robust class consciousness around their identity.
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In this article, an inexpensive intervention grounded in principles of liberation psychology—peer support group sessions facilitated by a law professor and a therapist—is put forth as a first step in creating a critical space for marginalized student voices. The author’s own experience implementing this initiative is discussed and practical recommendations are made for law school faculty and support professionals interested in pursuing a similar approach at their institutions. Even small changes to legal education’s role in the reproduction of hierarchy can yield sizeable benefits—a practical embrace of liberation psychology within a small corner of the law school space has transformative potential. The lawyer and therapist intervention represents one small step that can modify the law school space to liberate a group of first-generation and low-income background students to remain true to their initial reasons for pursuing a law degree: with the simple act of claiming a space for their voices in the larger law school community.
Part I of this article examines the primary obstacles blocking the formation of a class-conscious first-generation and low-income lawyer identity, which includes culture shock, pressure to assimilate, traditional legal education’s repression of emotion, the invisibility of the first-generation and low-income identity, and the relentless focus on climbing the proverbial ladder. Part II outlines the origin story of this article by providing a brief description of the author’s experience implementing the law professor and therapist intervention. Part III highlights the benefits of peer supports for first-generation and low-income background students and introduces the liberation psychology framework guiding the law professor and therapist intervention. Part IV urges adoption of this intervention by other law schools and highlights important next steps. (pp. 163-64, 168-69
How the Student-Faculty Demographic Impacts Law School Graduate Attrition, Attrition Rate, J.D.s Awarded, and Bar Passage (Part 1)
No full textAt law schools and in the legal profession, improving outcomes for women and minorities is still a priority. This study explores whether student-faculty demographic match impacts attrition, attrition rate, J.D.s awarded, and Bar passage.Legal Lex data, ABA 509 Disclosures, and accounting for differences in school sizes were combined to form a data set and used to create profiles of law school faculty. The research divided law school faculty into two demographic categories: faculty who are women and diverse faculty (women and men). Faculty demographics were then categorized as either above or below the average of the faculty body at other law schools. Three types of analysis were carried out on these demographics: one including all faculty, one including only full-time faculty, and one including only part-time faculty in order to determine if differences exist by category.The effect on student attrition, attrition rates, percentage of J.D.s awarded, and Bar success rates was then analyzed. Each category was examined first by gender (women and men), then by population (white Caucasian and minority), then by gender and population (white Caucasian and minority women and white Caucasian and minority men), and finally by gender and student racial groups.This research used a Mann Whitney Wilcoxon nonparametric method approach to compare the deviation of law school faculty demographics in order to establish university sub-group profiles and determine their impact on student attrition, attrition rates, the percentage of J.D.s awarded, and Bar success rates.This research builds upon existing K-12 scholarship and advances it to the graduate level. Further, it confirms that diverse faculty improved these metrics for students who are women and minorities. Demographic match positively impacts outcomes for law school students who are women and minorities. As such, it should be an institutional priority given commitments to improve outcomes for women and minorities
Enhancing the Validity and Fairness of Lawyer Licensing: Empirical Evidence Supporting Innovative Pathways
No full textA two-day written bar exam cannot test a prospective lawyer’s ability to counsel clients, investigate facts, research novel issues, negotiate with adversaries, and perform other tasks that are essential for competent lawyering. The conventional exam has also become a test of resources, favoring candidates who can afford to buy commercial prep courses and devote 8-10 weeks to full-time study. Cognizant of these flaws, several states have begun exploring alternative approaches to licensing. Oregon has already implemented a small program that allows some law graduates to demonstrate their competence by practicing under the supervision of a licensed attorney and compiling portfolios of work product from that supervised practice. Candidates submit those portfolios, which include materials related to client counseling and negotiation, to bar examiners for independent assessment. Oregon’s Supreme Court is considering a proposal to expand this program, and other states are exploring similar approaches.This article provides the first empirical evidence that supervised practice offers a valid, feasible, and fair context for evaluating prospective lawyers’ competence. Oregon’s current program is too small to assess empirically, but two related programs in California offer a rich dataset about the potential for assessing prospective lawyers’ competence through supervised practice. Our analyses, which draw upon qualitative and quantitative data from more than four thousand law graduates and licensed lawyers in California, demonstrate that: (1) Licensing programs rooted in supervised practice allow states to assess a broader range of lawyering skills and doctrinal knowledge than can be assessed on a two-day, written exam. (2) Candidates readily find supervisors, and both parties reap many benefits from the program. (3) Supervised practice is fully accessible to first-generation candidates, candidates of color, women, and candidates who live with disabilities. In fact, women of color, men of color, and white women were significantly more likely than white men to take advantage of California’s supervised practice options. (4) Supervised practice licensing paths can expand access to justice by increasing the number of lawyers who work for legal services providers and in rural parts of a state.Licensing paths rooted in supervise practice, in sum, are valid, feasible, and fair pathways that can protect the public better than a two-day written exam, make our profession more inclusive, and expand access to justice
The Influence of Metacognitive Skills on Bar Passage: An Empirical Study
Full text linkWorking Paper
This article builds on our prior research about metacognition and its importance for law students’ learning. We hypothesized that given our past findings about the relationship between metacognition and academic performance in law school, it was possible that metacognition might also play an important role in success on the bar exam.
Our current study documents law students’ metacognitive skills during a final semester bar prep course and examines the relationship between those students’ metacognitive skills and bar passage. We found that students are capable of gaining metacognitive knowledge and regulation skills during law school and even as late as the last semester of law school. We also found evidence that instruction and prompts to practice metacognitive regulation during the first year of law school had a long-term impact on students’ continued use of those skills. This evidence is important because we also found, as we have in prior studies, that students’ success in a final semester 3L bar preparation course, as well as their cumulative law school GPA, are associated with their level of metacognitive knowledge and regulation skills. While we did not find evidence of a direct relationship between metacognitive skills and bar passage, there was a relationship between bar passage and both course performance and cumulative GPA. Accordingly, we contend that metacognitive skills are an indirect support of bar passage given that they contribute to success in law school, which in turn supports success on the bar exam. We conclude that, based on the relationship between metacognitive skills, academic success in law school, and bar passage, law schools have an ethical obligation to support law faculty in explicitly and intentionally incorporating metacognitive skills instruction into the law curriculum
New Avenues for Diversity After Students for Fair Admissions
No full textIn Students for Fair Admissions v. Harvard, the U.S. Supreme Court upended decades of precedent, which had allowed universities to use race as one factor in student admissions in order to advance the compelling interest of providing the educational benefits of a racially diverse student environment. In earlier decisions, in 1978, 2003, and 2016, swing conservative justices had sided with liberal justices to permit the limited use of racial preferences. But in 2023, a decisive 6-2 majority in the Harvard case and a 6-3 majority in the companion Students for Fair Admissions v. University of North Carolina case, held that the universities\u27 use of race could not survive strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment and a parallel requirement under Title VI of the 1964 Civil Rights Act. The Court raised a number of objections to the universities\u27 use of racial preferences: (1) that the diversity interests advanced by the universities were inescapably imponderable and not sufficiently measurable, (2) that their racial preferences negatively affected nonbeneficiaries, (3) that the preferences had no logical ending point, and (4) that the preferences relied on impermissible stereotypes.
The Court did not, however, say that the pursuit of the educational benefits of racial diversity is itself impermissible. This article examines two possible avenues by which higher education institutions can continue to pursue racial and ethnic diversity: (1) by considering personal essays in which students discuss their experiences of how race shaped their lives; and (2) by employing nonracial factors, such as providing an admissions preference to socioeconomically disadvantaged students, or those from underrepresented geographic areas, which can have the effect of producing the educational benefits of racial diversity without the consideration of race.
I contend that while both options are legitimate if applied faithfully, there is a much bigger danger that admissions officers will improperly use the personal essay option than that they will misuse nonracial factors. Because admissions officials are accustomed to using race in admissions, instructing them on the critical difference between considering a student\u27s experiences with race and considering race itself will be challenging. By contrast, the use of nonracial factors, such as socioeconomic disadvantage, is much less subject to abuse. Drawing upon simulations I helped conduct as an expert witness in the Students for Fair Admissions litigation, I contend that employing nonracial strategies, while more expensive than exploiting the personal essay loophole, entails far fewer legal risks and can produce robust levels of racial diversity if implemented intelligently. Moreover, I argue, adopting these types of race-neutral alternatives can serve as a shield against future litigation