TABLE OF CONTENTS INTRODUCTION I. THE SIZE OF THE PIPELINE II. THE FIRST AND MAJOR LEAK IN THE PIPELINE: ADMISSIONS A. Leakage at Test-Taking Stage (Those Who Take the LSAT and Do Not Apply to a Law School) B. Leakage at the Application Stage (Those Who Apply to Law School but Receive No Positive Admission Decision) C. The Impact of Affirmative Action on Applicant Misapplication III. THE BAR EXAM: A SERIOUS KINK IN THE PIPELINE A. Misapplication on the Bar Examination B. A National Bar Exam? No, a Logical Alternative C. Raising the Bar--Strengthening the Obstruction in the Pipeline for No Good Reason CONCLUSION
Putting aside momentarily the debate over the appropriate use of affirmative action in law school admissions, (1) almost all would agree that increasing the number of diverse or underrepresented individuals in law schools, (2) and subsequently the legal profession, is a laudable goal and one that will have a salutary effect on the legal profession and, ultimately, society. The debate, to date, has centered on whether affirmative action can lawfully be used to achieve that increase and, if so, whether the use of affirmative action is beneficial for its recipients. (3) Further, both opponents and supporters of affirmative action agree that the elimination of the need for the continuing use of affirmative action is also a laudable goal and one that should be embraced societally.
In Grutter v. Bollinger, the Supreme Court almost wistfully concluded with dicta that affirmative action should not be necessary twenty-five years after the opinion. (4) I have written an article in favor of the continued use of affirmative action (actually going so far as to suggest that even quotas should be lawful), (5) yet I also believe that an optimal state of affairs in legal education is a world in which affirmative action (including, of course, quotas) is not used because there is nevertheless a proportionate representation of currently underrepresented groups in our law schools and, subsequently, in the legal profession. In other words, in an optimal society there would be no need for affirmative action and all would support the elimination of affirmative action in admissions because blacks, Hispanics, and Native Americans (the underrepresented minority groups) would be admitted to law schools at least in proportion to their percentage of the U.S. population without its use.
Quite the contrary, we do not live in an optimal "aracial" world, but in a society still suffering from the effects of a legacy of legalized and systemic racism which was once the norm in American society. Not only does affirmative action continue to be used to increase the number of underrepresented groups (minorities) in our law schools, these groups remain underrepresented in law schools and in the legal profession. I contend, however, that the debate over the efficacy of affirmative action is somewhat misplaced. Instead, I posit that the underrepresentation of minority lawyers is created by impediments in the educational and licensing pipelines that produces lawyers. Indeed, I demonstrate that there are other significant factors limiting the enrollment of these underrepresented individuals in law schools. Furthermore, I address what steps can and should be taken to increase the enrollment of these very valuable students--without using affirmative action--so that they are no longer underrepresented when measured by their representation in larger society. (6)
I do so from the perspective of one who has been intimately involved in the admission process and the operation and effect of the LSAT on that process for the last quarter of a century. From 1989-2004 I was a volunteer for the Law School Admission Council (LSAC), the non-profit entity that produces the Law School Aptitude Test ("LSAT") and that is "owned" by the American Bar Association (ABA) accredited law schools. …