Affirmative Action and Fixed Intelligence

September 6th, 2015 / By

I wrote this summer about a study demonstrating a worrisome trend among minority law students: They received lower grades than white peers with similar LSAT scores, undergraduate achievements, and work experience. Part of the problem, I suggested in a second post, may stem from the psychological phenomenon of stereotype threat. When individuals are placed in situations in which a group stereotype suggests that they will perform badly, they do just that. Remove the stereotype threat and performance improves to match that of other individuals with similar experience and abilities.

Stereotype threat arises in part from the implicit racial bias that permeates our culture. If professors, classmates, friends, and family members see minority students as less capable than white ones, those perceptions can become self-fulfilling prophecies. Unconscious bias, unfortunately, is invisible only to the holders of that bias; targets readily perceive the negative assumptions and respond to them.

What About Affirmative Action?

How does affirmative action affect this dynamic? Some critics of affirmative action suggest that special admissions programs simply aggravate stereotype threat–ultimately harming the students they intend to help. Minority students, they reason, know that at least some members of their group lack the credentials of white students; they are “less qualified” to attend law school than their peers. This knowledge, critics reason, will trigger an extreme form of stereotype threat. Knowing that their racial/ethnic group is less qualified than the dominant white group–and that professors know this–minority students will perform poorly.

Does this phenomenon explain the poor performance of minority students in law schools? Should we abandon all traces of affirmative action to improve the achievements of minority students?

Not from my perspective. Instead, we need to examine our own attitudes toward affirmative action. Those attitudes, which inform a law school’s culture, spell the difference between programs that assist minority students and those that may harm them. To explain this, we also need to explore the nature of intelligence: Is an individual’s intelligence fixed at some point early in life? Or is it fluid? I will explore these issues in a series of posts.

Fixed-Intelligence Affirmative Action

Many critics of affirmative action assume that intelligence is fixed. When we admit minority students with lower LSAT scores than their white classmates, these critics assume, we know that the minority students will perform more poorly in law school. They have less law-related intelligence (as measured by LSAT tests) and, thus, are fated to lower performance.

These critics acknowledge that intelligence is not the only factor affecting achievement. Hard work, catch-up tutoring, and faculty encouragement, they concede, may improve a student’s grades. In their view, however, this simply adds to the cost of affirmative action programs. Schools must devote special resources to tutoring programs, and faculty must provide special encouragement to minority students. The pay-off, from the critics’ perspective, is small. Minority students, they argue, would fare better if they attended schools where their fixed intelligence matched that of their white peers.

Many supporters of affirmative action programs also believe in fixed intelligence. These supporters quietly assume that minority students have less law-related intelligence than their white peers, but they blame that difference on historical and contemporary discrimination. Since society has damaged minority students, these professors reason, we owe them special consideration in admissions. We should give them the opportunities they might have had if they had not experienced a lifetime of overt and subtle discrimination. With hard work, special tutoring, and faculty encouragement, at least some of these students will achieve more than their predictors indicate. Even those who finish near the bottom of the class will benefit from the reputation and network connections of a more prestigious school than one they might have attended without affirmative action.

These attitudes, whether expressed critically or supportively, may well reduce the performance of minority students. In addition to creating stereotype threat, these attitudes tell minority students: “Intelligence is fixed by the time students enter law school and, for whatever reason, yours is lower than that of your classmates.” As we’ll see in my next post, belief in fixed intelligence harms students as much as stereotype threat. Minority students, therefore, suffer a double injury when surrounded by these attitudes.

These attitudes, it’s important to note, need not be overt to affect students. Few professors announce to their classes: “Your intelligence is fixed. You’ve either got it or you don’t. See you at the end of the semester.” The beliefs, however, are there. Law school, in fact, seems centered on a theory of fixed intelligence. Our focus on LSAT scores (aggravated by the US News ranking competition), the lack of feedback designed to enhance performance, and the strict grading curves suggest that we believe our students’ intelligence is fixed.

Add assumptions about low-performing minority students to that mix, and you have a recipe for stereotype threat and reduced performance–even among minority students with entering credentials that match those of white peers.

Another Way

Fortunately, it doesn’t have to be this way. There is a way to conceptualize affirmative action programs that is both more cognitively accurate and more supportive of minority students. If we can reform our law school culture to embrace the reality of fluid intelligence, we will reveal the true justification for affirmative action programs, allow minority students to reach their full potential, and improve learning for all students. In my next two posts, I will explore the concept of fluid intelligence and how it can inform our beliefs about affirmative action.

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The White Bias in Legal Education

July 16th, 2015 / By

Alexia Brunet Marks and Scott Moss have just published an article that analyzes empirical data to determine which admissions characteristics best predict law student grades. Their study, based on four recent classes matriculating at their law school (the University of Colorado) or Case Western’s School of Law, is careful and thoughtful. Educators will find many useful insights.

The most stunning finding, however, relates to minority students. Even after controlling for LSAT score, undergraduate GPA, college quality, college major, work experience, and other factors, minority students secured significantly lower grades than white students. The disparity appeared both in first-year GPA and in cumulative GPA. The impact, moreover, was similar for African American, Latino/a, Asian, and Native American students.

Marks and Moss caution that the number of Native American students in their database (15) was small, and that the number of Latino/a students (45) was also modest. These numbers may be too small to support definitive findings. Still, the findings for these groups were statistically significant–and consistent with those for the larger groups of African American and Asian American students.

What accounts for this disturbing difference? Why do students of color receive lower law school grades than white students with similar backgrounds?

“Something . . . About Legal Education Itself”

Marks and Moss are unable to probe this racial disparity in depth; their paper reports a wide range of empirical findings, with limited space to discuss each one. They observe, however, that their extensive controls for student characteristics suggests that the “racial disparity reflects something not merely about the students, but about legal education itself.” What is that something?

One possibility, as Marks and Moss note, is unconscious bias in grading. Most law school courses are graded anonymously, but others are not. Legal writing, seminars, clinics, and other skills courses often require identified grading. Even in large lecture courses, some professors give credit for class participation–a practice that destroys anonymity for that portion of the grade.

No one suspects that professors discriminate overtly against minority students. Implicit bias, however, is pervasive in our society. How do we as faculty know that we value the words of a minority student as highly as those offered by white students? Unless we keep very careful records, how do we know that we remember the minority student’s comments as often as the white student’s? These are questions that all educators should be willing to ask.

Another explanation lies in the psychological phenomenon of stereotype threat. When placed in situations in which a group stereotype suggests they will perform poorly, people often do just that. Scientists have demonstrated this phenomenon with people of all races and both genders. Math performance among White men, for example, declines if they take a test after hearing information about the superiority of Asian math students.

Legal education itself, finally, may embody practices that favor white students. Are there ways in which our culture silently nurtures white students better than students of color? I’d like to think not, but it’s hard to judge a matter like that from within the culture. Cultures are like gravity; they affect us constantly but invisibly.

Other Influences

I can think of three forces originating outside of law schools that might depress the performance of minority students. First, minorities may enter law school with fewer financial resources than their white peers. Marks and Moss were unable to control for economic background, and the minority students in their study may have come from financially poorer families than the white students. Students from economically disadvantaged backgrounds may spend more time working for pay, live in less convenient housing, and lack money for goods and services that ease academic study.

Second, minority students may have less social capital than white students. Students who have family members in the legal profession, or who know other law graduates, can commiserate with them about the challenges of law school. These students can also discuss study approaches and legal principles with their outside network. Even knowing other people who have succeeded in law school may give a student confidence to succeed. Minority students, on average, may have fewer of these supports.

In fact, minority students may suffer more than white students from negative social capital. If a student is the first in the family (or neighborhood) to attend law school, the student’s social network may tacitly suggest that she is unlikely to succeed. Minority students may also be more likely than white students to face family demands on their time; families may rely economically and emotionally on a student who has achieved such unusual success.

Finally, minority students bear emotional burdens of racism that white students simply don’t encounter. Some of those burdens are personal: the white people who cross the street to avoid a minority male, the shopkeeper who seems to hover especially close. Others are societal. We were all upset by the church massacre in Charleston, South Carolina, but the tragedy was much more personal–and threatening–for African Americans. How hard it must be to continue studying the rule against perpetuities in the face of such lawlessness and racial hatred.

What Should Law Schools Do?

I don’t know the causes of the racial disparity in law student grades. One or more of the above factors may account for the problem; other influences may be at work. Whatever the causes, the data cry out for a response. Even if the discrepancy stems from the outside forces I’ve identified, law schools can’t ignore the impact of those forces. If we’re serious about racial diversity in the legal profession, we need to identify the source of the racial grade gap and remedy it.

Law schools face many challenges today, but this one is as important as any I’ve heard about. It’s time to talk about the burdens on minority students, the ways in which our culture may aggravate those burdens, and the steps we can take to open the legal profession more fully to all.

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Bar Passage and Accreditation

July 4th, 2013 / By

The Standards Review Committee of the ABA’s Section of Legal Education has been considering a change to the accreditation standard governing graduates’ success on the bar examination. The heart of the current standard requires schools to demonstrate that 75% of graduates who attempt the bar exam eventually pass that exam. New Standard 315 would require schools to show that 80% of their graduates (of those who take the bar) pass the exam by “the end of the second calendar year following their graduation.”

I support the new standard, and I urge other academics to do the same. The rule doesn’t penalize schools for graduates who decide to use their legal education for purposes other than practicing law; the 80% rate applies only to graduates who take the bar exam. The rule then gives those graduates more than two years to pass the exam. Because the rule measures time by calendar year, May graduates would have five opportunities to pass the bar before their failure would count against accreditation. As a consumer protection provision, this is a very lax rule. A school that can’t meet this standard is not serving its students well: It is either admitting students with too little chance of passing the bar or doing a poor job of teaching the students that it admits.

The proposal takes on added force given the plunge in law school applications. As schools attempt to maintain class sizes and revenue, there is a significant danger that they will admit students with little chance of passing the bar exam. Charging those students three years of professional-school tuition, when they have little chance of joining the profession, harms the students, the taxpayers who support their loans, and the economy as a whole. Accreditation standards properly restrain schools from overlooking costs like those.

Critics of the proposal rightly point out that a tougher standard may discourage schools from admitting minority students, who pass the bar at lower rates than white students. This is a serious concern: Our profession is still far too white. On the other hand, we won’t help diversity by setting minority students up to fail. Students who borrow heavily to attend law school, but then repeatedly fail the bar exam, suffer devastating financial and psychological blows.

How can we maintain access for minority students while protecting all students from schools with low bar-passage rates? I discuss three ideas below.

The $30,000 Exception

When I first thought about this problem, I considered suggesting a “$30,000” exception to proposed Standard 315. Under this exception, a school could exclude from the accreditation measure any student who failed the bar exam but paid less than $10,000 per year ($30,000 total) in law school tuition and fees.

An exception like this would encourage schools to give real opportunities to minority students whose credentials suggest a risk of bar failure. Those opportunities would consist of a reasonably priced chance to attend law school, achieve success, and qualify for the bar. Law schools can’t claim good karma for admitting at-risk students who pay high tuition for the opportunity to prove themselves. That opportunity benefits law schools as much, or more, than the at-risk students. If law schools want to support diversification of our profession–and we should–then we should be willing to invest our own dollars in that goal.

A $30,000 exception would allow schools to make a genuine commitment to diversity, without worrying about an accreditation penalty. The at-risk students would also benefit by attending school at a more reasonable cost. Even if those students failed the bar, they could more easily pay off their modest loans with JD Advantage work. A $30,000 exception could be a win-win for both at-risk students and schools that honestly want to create professional access.

I hesitate to make this proposal, however, because I’m not sure how many schools genuinely care about minority access–rather than about preserving their own profitability. A $30,000 exception could be an invitation to admit a large number of at-risk students and then invest very little in those students. Especially with declining applicant pools, schools might conclude that thirty students paying $10,000 apiece is better than thirty empty seats. Since those students would not count against a school’s accreditation, no matter how many of them failed the bar exam, schools might not invest the educational resources needed to assist at-risk students.

If schools do care about minority access, then a $30,000 exception to proposed Standard 315 might give us just the leeway we need to admit and nurture at-risk students. If schools care more about their profitability, then an exception like that would be an invitation to take advantage of at-risk students. Which spirit motivates law schools today? That’s a question for schools to reflect upon.

Adjust Bar Passing Scores

One of the shameful secrets of our profession is that we raised bar-exam passing scores during the last three decades, just as a significant number of minority students were graduating from law school. More than a dozen states raised the score required to pass their bar exam during the 1990’s. Other states took that path in more recent years: New York raised its passing score in 2005; Montana has increased the score for this month’s exam takers; and Illinois has announced an increase that will take effect in July 2015.

These increases mean that it’s harder to pass the bar exam today than it was ten, twenty, or thirty years ago. In most states, grading techniques assure that scores signal the same level of competence over time. This happens, first, because the National Conference of Bar Examiners (NCBE), “equates” the scores on the Multistate Bar Exam (MBE) from year to year. That technique, which I explain further in this paper, assures that MBE scores reflect the same level of performance each year. An equated score of 134 on the February 2013 MBE reflects the same performance as a score of 134 did in 1985.

Most states, meanwhile, grade their essay questions in a way that similarly guards against shifting standards. These states scale essay scores to the MBE scores achieved by examinees during the same test administration. This means that the MBE (which is equated over time) sets the distribution of scores available for the essay portion of the exam. If the July 2013 examinees in Ohio average higher MBE scores than the 2012 test-takers, the bar examiners will allot them correspondingly higher essay scores. Conversely, if the 2013 examinees score poorly on the MBE (compared to earlier testing groups in Ohio), they will receive lower essay scores as well. You can read more about this process in the same paper cited above.

These two techniques mean that scores neither inflate nor deflate over time; the measuring stick within each state remains constant. A score of 264 on the July 2013 Illinois bar exam will represent the same level of proficiency as a score of 264 did in 2003 or 1993.

When a state raises its passing score, therefore, it literally sets a higher hurdle for new applicants. Beginning in 2015, Illinois will no longer admit test-takers who score 264 on the exam; instead it will require applicants to score 272–eight points more than applicants have had to score for at least the last twenty years.

Why should that be? Why do today’s racially diverse applicants have to achieve higher scores than the largely white applicants of the 1970s? Law practice may be harder today than it was in the 1970s, but the bar exam doesn’t test the aspects of practice that have become more difficult. The bar exam doesn’t measure applicants on their mastery of the latest statutes, their ability to interact with clients and lawyers from many cultures, or their adeptness with new technologies. The bar exam tests basic doctrinal principles and legal analysis. Why is the minimum level of proficiency on those skills higher today than it was thirty or forty years ago?

If we want to diversify the profession, we have to stop raising the bar as the applicant pool diversifies. I do not believe that states acted with racial animus when increasing their passing scores; instead, the moves seem more broadly protectionist, occurring during times of recession in the legal market and as the number of law school graduates has increased. Those motives, however, deserve no credit. The bottom line is that today’s graduates have to meet a higher standard than leaders of the profession (those of us in our fifties and sixties) had to satisfy when we took the bar.

Some states have pointed to the low quality of bar exam essays when voting to raise their passing score. As I have explained elsewhere, these concerns are usually misplaced. Committees convened to review a state’s passing score often harbor unrealistic expectations about how well any lawyer–even a seasoned one–can read, analyze, and write about a new problem in 30 minutes. Bad statistical techniques have also tainted these attempts to recalibrate minimum passing scores.

Let’s roll back passing scores to where they stood in the 1970s. Taking that step would diversify the profession by allowing today’s diverse graduates to qualify for practice on the same terms as their less-diverse elders. Preserving accreditation of schools that produce a significant percentage of bar failures, in contrast, will do little to promote diversity.

Work Harder to Support Students’ Success

Teaching matters. During my time in legal education, I have seen professors improve skills and test scores among students who initially struggled with law school exams or bar preparation. These professors, notably, usually were not tenure-track faculty who taught Socratic classes or research seminars. More often, they were non-tenure-track instructors who were willing to break the law school box, to embrace teaching methods that work in other fields, to give their students more feedback, and to learn from their own mistakes. If one teaching method didn’t work, they would try another one.

If we want to improve minority access to the legal profession, then more of us should be willing to commit time to innovative teaching. Tenure-track faculty are quick to defend their traditional teaching methods, but slow to pursue rigorous tests of those methods. How do we know that the case method or Socratic questioning are the best ways to educate students? Usually we “know” this because (a) it worked for us, (b) it feels rigorous and engaging when we stand at the front of the classroom, (c) we’ve produced plenty of good lawyers over the last hundred years, and (d) we don’t know what else to do anyway. But if our methods leave one in five graduates unable to pass the bar (the threshold set by proposed Standard 315), then maybe there’s something wrong with those methods. Maybe we should change our methods rather than demand weak accreditation standards?

Some faculty will object that we shouldn’t have to “teach to the bar exam,” that schools must focus on skills and knowledge that the bar doesn’t test. Three years, however, is a long time. We should be able to prepare students effectively to pass the bar exam, as well as build a foundation in other essential skills and knowledge. The sad truth is that these “other” subjects and skills are more fun to teach, so we focus on them rather than on solid bar preparation.

It is disingenuous for law schools to disdain rigorous bar preparation, because the bar exam’s very existence supports our tuition. Students do not pay premium tuition for law school because we teach more content than our colleagues who teach graduate courses in history, classics, mathematics, chemistry, or dozens of other subjects. Nor do we give more feedback than those professors, supervise more research among our graduate students, or conduct more research of our own. Students pay more for a law school education than for graduate training in most other fields because they need our diploma to sit for the bar exam. As long as lawyers limit entry to the profession, and as long as law schools serve as the initial gatekeeper, we will be able to charge premium prices for our classes. How can we eschew bar preparation when the bar stimulates our enrollments and revenue?

If we want to diversify the legal profession, then we should commit to better teaching and more rigorous bar preparation. We shouldn’t simply give schools a pass if more than a fifth of their graduates repeatedly fail the bar. If the educational deficit is too great to overcome in three years, then we should devote our energy to good pipeline programs.

Tough Standards

Some accreditation standards create unnecessary costs; they benefit faculty, librarians, or other educational insiders at the expense of students. Comments submitted to the ABA Task Force on the Future of Legal Education properly question many of those standards. The Standards Review Committee likewise has questioned onerous standards of that type.

Proposed Standard 315, however, is tough in a different way. That standard holds schools accountable in order to protect students, lenders, and the public. Private law schools today charge an average of $120,000 for a JD. At those prices, schools should be able to assure that at least 80% of graduates who choose to take the bar exam will pass that exam within two calendar years. If schools can’t meet that standard, then they shouldn’t bear the mark of ABA accreditation.

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