If law school enrollment today is made up largely of the White and the wealthy, it is because the American Bar Association, the chief accreditor of the nation's law schools, has designed the rules that produce this outcome.
It's not that minorities and students from low-income households don't want to attend law school; it's that they are being priced out by soaring tuition costs, up 267 percent since 1990, and shut out by the culturally biased Law School Admissions Test (LSAT).
Only 3.9 percent of the nation's one million lawyers are Black, only 3.3 percent are Hispanic, and Whites of modest means likely are underrepresented as well. How many families can afford to pay $100,000 to $150,000 to put a child through three years of law school? At present, law school enrollment is just 6.6 percent for African Americans and 5.7 percent for Hispanics.
The ABA is aware of this. Five years ago, then-president William Paul decried the alarming lack of "minority representation in the legal profession." And the ABA's own Commission on Racial and Ethnic Diversity in the Legal Profession has since reaffirmed his view.
New York Law School professor Elizabeth Chambliss, author of the Commission's report, described law as "one of the least racially integrated professions in the United States ..." She called the LSAT "one of the main barriers to increasing diversity among law students." Yet ABA insists that the 200 law schools it accredits administer the LSAT, and for ABA schools it often is the main determinant of admission and is always one of the two main determinants.
What the ABA continues to be about is lining the pockets of law professors, some of whom earn as much as $300,000 or more a year, often for teaching very few hours. Renowned Federal Judge Richard Posner thinks the ABA conducts itself like a "medieval guild" in behalf of its members.
In 1995, the Justice Department formally charged the ABA with fixing law professors' salaries, among other Sherman Anti-Trust Act violations. Justice asserted the ABA acted to further "the self-interest of professors instead of improving education." In 1996 the ABA entered into a consent judgment agreeing to reform its practices and to stop dictating a number of dubious, costly and illegal regulations to schools. Yet, in 2006, the Justice Department charged the ABA with violating provisions of the decree and called for it to take remedial action as well as to pay Justice $185,000 for its enforcement troubles.
Writing in the Journal of Legal Education, Emory law professor George B. Shepherd notes if the ABA lowered its LSAT score accreditation cutoff just slightly, it "would allow the creation of more than 40 new 600-student, majority-Black law schools. Eliminating the LSAT cutoff altogether would permit more than 80, an average of one or two per state. The ABA 's accreditation standards and the way the ABA applies them have had the same impact on Blacks as (former Governor) George Wallace standing with policemen at the school house door in Alabama, blocking blacks from entering," he wrote.
Even many state-supported law schools must charge $15,000 to $30,000 or more in tuition to survive. The ABA's input-based policies, begun in the 1970s, are driving law school tuition and fees far ahead of inflation. During the 1990s, tuition, room and board at undergraduate institutions increased by 58 percent, but comparable law school costs jumped 88 percent. Today, more law schools are punching through the $40,000 tuition barrier and the $50,000-a-year law school appears only a few years away.
The ABA has prevailed upon Supreme Courts and Legislatures in 45 states to keep students from non-ABA law schools even from taking state bar exams. This restraint of trade funnels students into schools belonging to the ABA guild.
The ABA likes to say only schools it accredits can provide a quality education, yet student teams from Massachusetts School of Law swept all four top spots in the Black Law Students Association Northeast Regional trial competition last February, finishing ahead of prominent schools such as Harvard University Law School, St. John's University Law School and Syracuse University School of Law, and MSL then placed third nationally in the finals at Detroit.
MSL, which was in the eastern region of the American Constitutional Society's appellate competition in Washington, had the highest scoring brief of 31 teams in the east region, and its brief was scored higher than the best western region brief, submitted by a team from the prominent University of Michigan Law School. Staffed only by a small core of full-time professors and relying largely on adjunct instructor-lawyers that teach in their specialties as well as sitting judges, MSL can educate a student for a tuition of $14,490, a sum less than half of what ABA-accredited New England law schools charge.
The ABA has misused the absolute power granted it by our government and has beguiled state supreme courts to accept its dictates in determining who can sit for the bar. It deliberately causes to remain largely unserved by the nation's law schools people from working-class backgrounds, immigrants, and minorities.
Lawrence Velvel is dean and cofounder of the Massachusetts School of Law at Andover; Michael Coyne is associate dean; Sherwood Ross is a media consultant to academic institutions.