The ABA, Affirmative Blackmail, and Being on Admissions

This week’s events (the promulgation of new rules by the ABA on diversity admissions, publication of David Bernstein‘s op-ed, Affirmative Blackmail, and the ensuing blogospheric discussions) have prompted me to post on a topic that I have been ruminating about for some time: admissions. At the Glom last year, I blogged a series of advice posts (here, here, here and here) from information gleaned after my first year on admissions committee. This is my second year on that committee, and I have to admit that the shiny has worn off a bit for me. I wanted to be on the admissions committee because I wanted to find out why we had classes with low percentages of minority students. Surely there must be some subconscious, yet insidious discrimination creating this result. I was going to ferret out this bias and squash it like a bug. What I found was a problem that I couldn’t fix. The problem is math. Prof. Bernstein and Thom Lambert point out that the ABA’s new rules show that the ABA has a conscious disregard for the rule of law. I would add that the rules also show a conscious disregard for math. For schools like Marquette, in the middle of the rankings, with a small faculty, administration and budget, cold, hard numbers are our problem when it comes to increasing diversity. Putting aside debates as to whether affirmative action is good, bad, constitutional, unconstitutional or whatever, the most affirmative action-minded admissions committee has to make very difficult choices in an environment of scarcity. Scarcity of applicants; scarcity of dollars.


Marquette’s problem is not that we don’t admit minority candidates. The percentage of minority candidates in our “admit” pool is larger than the percentage of minority candidates in our “applicant” pool. In fact, the percentage of minority applicants who become admits is larger than the percentage of nonminority applicants who become admits. However, the yield on minority candidates in our “admit” pool is quite low. These candidates have a lot of other opportunities. We do what we can: phone calls, scholarships, letters, emails, dinners, etc. I soon found out that to say that we discriminate against minority candidates is to say that we discriminate against candidates with 170 LSATs. We don’t end up with a lot because we don’t start out with a lot. And, no matter how many 170 LSATs we admit, our yield on 170 LSATs is very low, similar to our yield on minority candidates. These people have other opportunities, and our recruiting activities don’t change that much. If we were ranked higher, our yield would be greater. If our yield were greater, we would be ranked higher. See how that works, ABA?

However, the ABA now says that we are required to do more than just work with what we have. We need to commit resources to increase the number of minority applicants in our applicant pool. For instance, we could have a dedicated diversity admissions person, we could recruit in person at historically black colleges, we could hold minority applicant fairs, and we could have more minority scholarships. At present, our admissions office has one assistant dean and one office administrator. To comply, we would need to basically double our admissions budget. And our scholarship pool.

I teach corporate law, so I follow the recent white-collar prosecutions. Bernard Ebbers was criticized, and eventually punished, for blithely telling subordinates to “hit the numbers” without regard to the consequences. The ABA is also blithely telling law schools to do something without regard to the realities of numbers. I understand that in some situations, schools may have money, time and resources that they don’t want to commit to a laudable goal and will not until forced to do so. However, my impression is that many schools like Marquette will be caught in the middle because they actually do not have unlimited money, time and resources.

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7 Responses

  1. Eric Goldman says:

    Great post, Christine. In theory, law schools could do more to increase the overall pool of qualified minority applicants, but there is a free rider problem–schools can incur the cost to find new sources of minority applicants but those applicants may end up going elsewhere (so the sourcing schools don’t get the benefit). Therefore, I think increasing the supply of minority applicants is best handled at an industry-wide level.

    Otherwise, if the “supply” of qualified minority candidates is relatively fixed, then the ABA’s escalating expectations force all schools to compete against each other for this scarce resource. This results in a costly negative-sum game that provides private benefits to minority applicants but does little to cure the real problems.

    Eric.

  2. law firm hiring guy says:

    Thanks for saying that. Law firms get hammered on this issue, but for many of us who are working hard to increase diversity the issue comes out precisely the same.

  3. Hurt on ABA’s Latest Diversity Initiative

    At Concurring Opinions, Christine blogs on the latest ABA diversity admissions initiative. As she points out, critiques that the ABA’s…

  4. Neil Katin says:

    “…many schools like Marquette will be caught in the middle because they actually do not have unlimited money, time and resources.”

    Maybe I’m just picking up on this statement because it was the concluding one, but what

    organization has unlimited resources? Off hand, I can’t think of any.

    The question that all institutions face is “what is the best use of my resources”. Mandates like the ABA’s are intended to force institutions to

    devote more of their (limited) resources to some

    goals than they ordinarily would, to the

    detriment of other goals.

    I’m sure the ABA’s hope is that the ABA’s mandated goals

    (increasing minority admissions) is worth

    the schools loss (whatever they would have achieved in the absence of the mandate).

    But almost always the “gain” part of the mandate is easier to recognize and measure than the “loss” that every school undergoes, in part because the “loss” is

    invisible and differs from school to school.

  5. LawProfCommentator says:

    Did you really need to sit on the admissions committee to figure out the numbers problem? Did you not pay attention to the fact that it was revealed in the Grutter litigation that Michigan was accepted white students with LSATs in the high 160s and blacks with LSATs in the high 150s? If Michigan is getting black students with 157 on their LSATs, what students did you think Marquetter could recruit?

  6. Geraldine says:

    Well, with your candidness you might not be on the admissions committee much longer. Perhaps ABA will institute a rule saying “math is no excuse, dammit!”

    I must say I agree with LawProfCommentator though–was this that big a shock? I know some people don’t read a lot of articles on affirmative action, so I guess so. (Medical schools are admitting African Americans with average MCAT scores that are lower than the average MCAT scores of white and Asian rejected applicants. Extreme affirmative action-supporting professors have a lot of explaining to do.)

    A liberal professor, dedicated to recruiting more African Americans, said to me basically the same thing you said. I simply can’t believe the ABA isn’t aware of this.

  7. Jim Lindgren says:

    One thing that the LSAC could do (or schools could do since the LSAC hasn’t) is to come up with better predicters of performance in law school and the bar exam.

    I’ve found in studying admissions at several law schools that the admissions indices they use are seemingly designed, not to figure out which student at the margin is more likely to succeed, but rather to choose an index that tends to mask differences between groups of students. In essence, they emphasize undergraduate grades more than they should, and emphasize LSAT less than they should. With a better index, a school could admit slightly more minorities AND take less slightly risk than they do now, but most schools are so committed to pretending that the credentials gap is not as large as it is that they refuse to take steps that would further both minority admissions and minority success in law school and after.

    Now (as I recall) Marquette is in a slightly different position than most other schools: bar passage is less of a problem than at other schools since Wisconsin does (or at least used to) admit any graduate of a WI school to the bar automatically. If other law schools were more straightforward about bar passage problems for minorities, Marquette’s minority yield would improve.

    Why can’t law schools combine a strong commitment to affirmative action with a strong commitment to finding out the truth and acting on it to benefit their schools and the minorities they recruit?