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Addled "Diversity" Logic:

Courtesy of John Rosenberg, here's an article praising the ABA's new "diversity" standard on the theory that it will require California law schools to create more African American attorneys. Putting aside the issue of Proposition 209, to the extent that as a result of the new standards California law schools bend their admissions standards in some legal or illegal way to admit more African American matriculants, it's not clear that this will have much of an effect on the number of African American lawyers, or that it would worth the cost if it did. According to the very same article, only 33% of first-time African American bar exam takers in California passed, compared to 69% of whites. Some implications that seems rather obvious to me: (1) California (and the ABA) can most easily increase the number of African American attorneys by either (a) making the bar exam easier; (b) abolishing it altogether; or (c) finding some way to increase the passage rate for African Americans; and (2) Given that 2/3 of African American bar exam takers are already failing the bar exam on their first try (and that does not account for students who failed out of law school and never took the bar), and that many of those who fail the first time will never pass, where is the logic in encouraging law schools to admit even more African American students, unless there is some evidence that these students will be stronger than recent crops of students?

I'd be very happy to see the mandatory bar exam replaced with a voluntary exam (or many voluntary exams, let the free market rule--see posts by Ted Frank and Larry Ribstein for similar thoughts). Although it's against my interests as a law professor, I think it would also be a sound idea to let undergraduate colleges offer law degrees, as they do in the rest of the common law world, which would substantially reduce both the monetary and opportunity costs of getting a legal education. Either one of these solutions would likely increase the number of minority attorneys in the U.S. far more than ABA racial prefernce requirements for existing law schools, and with far less costs in terms or ruining the lives of students who attend law school but are never able to pass the bar. Unsurpringly, however, the ABA prefers the cosmetic solution that preserves its power and keeps the current barriers to entry in place, even at the price of urging illegal actions on the law schools.

UPDATE: And here's an unintentionally ironic comment from John Sebert, consultant to the ABA, last seen shilling for the ABA's new "diversity" racial preference requirements, defending the use of LSATs in admissions in today's Chronicle of Higher Education (temp link): "It's sort of a consumer-protection issue," he said on Monday. "We want to be sure that law schools aren't admitting a substantial number of students who are unlikely to be successful in their program or in their attempts to pass the bar." So why is it okay for law schools to admit African American students with scores that guarantee that many of them "are unlikely to be successful in their program or in their attempts to pass the bar"? Remember, 42% of African American students who start law school either fail out or never pass the bar. The "failure" statistic is much lower for the better law schools, which means, logically, that it's significantly worse than 42% at some lower-ranked law schools. And, moreover, law schools can generally predict based on incoming LSATs scores which students are likely to have trouble passing the bar. Isn't there a consumer protection issue in admitting, without warning, students who you know based on prior statistics (and law schools do know!) have less, and perhaps much less, than a 50% chance of becoming lawyers? And if so, why does the ABA not only encourage, but demand this (and more of it, under the new standard)? Hat tip: Rosenberg.

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