The ABA has generated a revealing debate between those who want to strengthen law schools’ accreditation standards and advocates of diversity. Given the many recent stories about law students burdened by huge debt and yet unable to pass the bar, the ABA is considering requiring law schools to get 75 percent of their students to pass the bar within two years to retain accreditation.. Put aside for the moment arguments that we should not require graduation from an accredited law school to take the bar—arguments with which I have some sympathy. Assuming states do accredit law schools, it hardly seems like a draconian requirement that a large majority of their graduates be able to pass the bar
But a variety of schools and groups have objected that this requirement will threaten diversity, because minority candidates from lower ranked schools fail the bar at substantial rates. This argument seems a desperate one. As Deborah Merritt, a law professor at Ohio State, has noted, graduates will not contribute to diversifying the bar, if they fail the bar exam. Moreover, the arguments for diversity here ignore the costs such minority students face. Many who fail the bar will have incurred high level of debts. Even those given scholarships incur an opportunity cost in going to law school. Indeed, admitting diversity students who have a substantial likelihood of failing the bar may harm diversity for society overall, because the vast majority of such students have the talents to climb the ladder of success in other jobs. But instead they are the sacrificial lambs of an academic religion.
And this controversy is a consequence of diversity as practiced throughout legal education. The most important reason that lower ranked schools have difficulty in attracting minority students who are likely to pass the bar is that higher ranked schools have admitted students who are substantially below their median LSATs and grade point averages, thus taking the students that lower ranked schools would admit. Richard Sanders and Stuart Taylor have documented this practice in their book, Mismatch. And, according to their research, this policy has disadvantages even for those admitted to more elite schools. Such students do not learn as much or compete as effectively as they would if they went to schools where other students had similar qualifications.
In any event, this new controversy again shows the systematically corrosive effects of “divvying up by race”in higher education. It is not a pretty picture.