Wednesday, October 12, 2016

How to Attack the Legal Profession’s Diversity Problem by Deborah Jones Merritt with a Reply

Professor Deborah Jones Merritt has written an insightful article on increasing diversity in the legal profession: How to Attack the Legal Profession’s Diversity Problem.  As you will see below, while I like her suggestions, I think she could have gone a step further and advocated true educational reform.

The context of Professor Merritt's article is the proposal currently before the ABA to tighten the accreditation standard governing bar passage.  She notes that "Opponents of the proposal argue that it will diminish diversity in the legal profession."  However, she declares, "Some of these claims are well intentioned, but they are misguided. They endorse a system of legal education in which minority students disproportionately enroll at low-ranked law schools, pay top tuition to attend those schools, and fail the bar exam at distressingly high rates. This is not a recipe for diversifying the legal profession."

She continues, "Law schools have much better tools for accomplishing that goal [diversity]. We could lower tuition, which would help less affluent minorities afford law school. We could award scholarships based on need, rather than LSAT scores. We could reform teaching methods to support first-generation lawyers. We could devote more resources to pipeline programs that offer opportunities to high school and college students."

However, her main proposal concerns the implicit bias that affects how professors interact with their minority students.  "We could also help professors recognize the implicit bias that can affect their interactions with minority students. We could read the work of Columbia University Provost Claude Steele, who has described how professors unconsciously constrain the achievement of minority students. We could then coach ourselves on ways to break that dynamic."  She adds, "We could do a much better job supporting minority students throughout legal education."

Professor Merritt points out that "Research, however, repeatedly shows that African American, Latino/a, and Asian American students receive lower grades in law school than their white classmates — even after controlling for LSAT scores, undergraduate grade-point average, and other admissions criteria. We also know that African American and Latino/a students borrow more heavily than their peers to attend law school. After graduation, they struggle longer to pay off this debt."

She concludes, "If every law school eased the financial burden on minority students, while also working to support those students’ highest aspirations in the classroom, we would enhance the success of our minority graduates. We would also attract a larger number of minority students to our programs, assuring much greater diversity in the profession."  "We would have to confront our implicit bias, learn how to overcome that bias, and embrace new forms of pedagogy. How many of our own practices are we willing to change to promote greater diversity in the legal profession? That is the true test of our commitment to diversity."

I agree with everything that Professor Merritt has said in the article, but I don't think it goes far enough.  Creating a growth mindset in minority students is just the beginning of the journey.  As I've said many times before (e.g.,  How to Help Students from Disadvantaged Backgrounds Succeed in Law School), law schools need to adopt new teaching procedures and help students from disadvantaged groups with new approaches to learning.  Numerous studies have shown that approaches like active learning, frequent formative assessment, and developing students metacognitive skills significantly help students learn better and succeed.  The solution is not easy, but it can be done.

(Scott Fruehwald)

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