Kirgis, P F --- "Race, Rankings, and the Part-time Free Pass" [2005] LegEdDig 55; (2005) 14(2) Legal Education Digest 10

Race, Rankings, and the Part-time Free Pass

P F Kirgis

[2005] LegEdDig 55; (2005) 14(2) Legal Education Digest 10

54 J Legal Educ 3, 2004, pp 395–405

The subject of the US News and World Report rankings — in particular, their effect on law school admissions — probably consumes more collective law school attention than any other issue. The subject of diversity, again particularly with respect to law school admissions, probably comes in a close second. Concerns about rankings and diversity, and how to improve both, drive many of the choices law schools make in setting institutional objectives and in allocating scarce financial resources.

Unfortunately, the goal of improved rankings frequently clashes with the goal of increased diversity, because of the weight the rankings give to factors, such as the Law Schools Admission Test (LSAT), that are skewed against minorities. On the other hand, there has been no systematic study of the way part-time programs intersect with the linked issues of rankings and race. This is because part-time programs have their own sets of rules; most notably, the scores of the matriculated students in part-time programs do not count in the medians used by US News to generate the rankings. Consequently, part-time programs offer law schools what amounts to a free pass, that is, the opportunity to increase either the total enrolment or the proportion of minorities, or both, without significant impact on their ranking.

Empirical study of part-time programs poses challenges because of the scarcity of reliable public data on the part-time admission practices of individual law schools. The primary objective of this article is to determine, at least tentatively, the extent to which law schools use the US News free pass to promote diversity by way of their part-time programs; second, to begin a dialogue about whether this use of the free pass is a good thing, from the perspective of a proponent of greater minority representation in law schools.

At least for schools in competitive markets, the law school admission process has become largely a game of numbers. While schools certainly weight them differently, the numbers play a significant role in admission decisions at every law school. Anecdotal evidence suggests that, at many, perhaps most, law schools, students with comparatively high LSAT scores and GPAs (grade point averages) are granted something approximating automatic admission. This myopic focus on scores, and particularly on the LSAT, raises many serious questions for law schools. It is especially problematic in light of the goal held by most schools of maintaining a diverse student body.

The persistence of lower LSAT scores among African-Americans means that schools that admit substantial numbers of black students risk lowering their median LSAT scores, and hence their US News ranking. It appears that few law schools are so rankings-driven as to ignore black applicants entirely in an effort to boost median LSAT. To the contrary, US law schools, taken as a whole, give less weight to numeric credentials when assessing black candidates than when assessing white candidates.

Of the 187 ABA-accredited law schools in the United States, at least 87 have regular part-time programs. These typically feature evening classes and target people who have more or less full-time day jobs. What makes part-time programs interesting from a rankings perspective is that US News does not count part-time students in calculating median LSAT and GPA: a school can admit as many part-time students as it wants, with any credentials, and suffer little or no impact in its ranking.

The existence of the free pass opens the door to gaming the rankings by diverting low-credentialled students to the part-time program in order to boost tuition revenues. Less cynically, to the extent a school with a part-time program believes LSAT and GPA do not adequately capture classroom potential or employment prospects for minority candidates, that school can use its part-time program to increase minority enrolment without fear of jeopardising its rank. A school using its part-time free pass would, at a minimum, have lower LSAT and GPA medians for part-time students than for full-time students.

The enrolment data unmistakably show that African-Americans are over represented in the part-time programs of a majority of law schools with such programs. Furthermore, the evidence at least allows an inference that 30 percent of the law schools with part-time programs are using the part-time free pass to admit comparatively large numbers of African-Americans with comparatively low LSAT scores.

For law school faculty and administrators interested in promoting diversity, the US News free pass for part-time students presents an opportunity to increase minority enrolment without affecting law school ranking. The strategic use of part-time programs to increase diversity has obvious benefits. One of the most pernicious effects of the US News rankings is the disincentive for schools to identify and admit students of colour with low scores but other markers of ability. The use of the part-time free pass can help mitigate that problem by freeing schools to find minority part-time candidates who have succeeded in another field but have relatively low numeric credentials.

The students involved are likely to have little complaint, at least at the time they enter law school. Most will gladly accept a bargain that allows them to attend a better law school for the price of attending part-time. And for many students, a part-time program is an attractive option because the opportunity to pursue a degree while continuing to work will relieve the debt burden the student faces on graduation. But there are potentially negative consequences that warrant further discussion. The primary one is cost to the students. The reduced course load for part-time programs comes with a reduced price tag per semester. Because part-time students typically attend law school for four years rather than three, however, they end up at graduation having paid roughly the same amount as the day students.

Part-time students may also have difficulty taking advantage of all the co-curricular and extracurricular opportunities available to full-time students. As a rule, law schools with part-time programs make opportunities, such as participation on journals or moot court, available to all students. But work commitments, lack of information or psychological barriers may keep many part-time students from participating fully. To the extent part-time students miss out on those opportunities, they may also miss out on stepping-stones to the best legal jobs.

Finally, if law schools systematically admit large numbers of minorities with comparatively low LSAT and GPA credentials to their part-time programs, they risk creating part-time ghettos. Minority students concentrated in part-time programs may be perceived by students, faculty and employers as underqualified. A widespread perception that part-time students are not equal to full-time students would further diminish the job prospects of graduates of the part-time program. That perception could negate any beneficial effect of modifying admission standards for part-time applicants to downplay LSAT and GPA credentials in favour of other markers of ability.

To the extent law schools are admitting more students of colour who lack the traditional credentials but have backgrounds that suggest they can succeed in law school and beyond, their use of the part-time free pass is difficult to criticise. But law schools choosing that route must be very careful to provide the full range of opportunities to their part-time students. Those opportunities must include fair scholarship and financial aid, accessibility to all law school programs, and the mentoring and other assistance necessary to provide good career opportunities. Law schools have that obligation to their part-time students under any circumstances. They have an even greater obligation if they choose to admit to their part-time programs students of colour with comparatively low numeric credentials.