1969.05.00: Some Perspectives on Minority Access to Legal Education, 2 Experiment and Innovation (1969) – OCR

View in searchable PDF format: 1969.05.00 – Letwin, Some Perspectives on Minority Access to Legal Education.OCR

=====

Raw format:

Some Perspectives

on Minority Access

to Legal Education

LEON LETWIN

Professor of Low

UCLA Low School; Director,

Los Angeles CLEO Program, 1968

Reprinted from

EXPERIMENT & INNOVATION

May 1969 Volume II • Number 2

Some Perspectives

on Minority Access

to Legal Education

LEON LETWIN

Professor of Low

UCLA Law School; Director,

Los Angeles CLEO Program,1968

•o[!] MoRE THAN 5,000 students are currently enrolled in 14 accredited

law schools in California.’ Fewer than 200 of these, as well

as can be determined, are black or Mexican-American. These figures

can be viewed from several perspectives. On the one hand, this does

represent a substantial increase over the past few years-an increase

of perhaps fiveor tenfold-but only because of the abysmal base

of comparison. A more relevant perspective would be to compare

the proportion of black and brown law students to their proportion

in the community at large, or to the critical and unfilled community

need for minority attorneys. A judgment reached from these points

of view would show fairly wide agreement that legal education has

failed to meet its obligations. This failure, of course, is not confined

to California law schools or to legal education. It is nationwide,” and

1 California Legal Education Opportunity Program.

The 1967 totals were: Berkeley 767; Davis 157; Hastings 1,006; UCLA

603; Cal Western 186; Golden Gate 381; Loyola 674; McGeorge 489; USC

506; San Diego 397; Santa Clara 234; University of San Francisco 360; Stanford

441. This totals 5,031 and includes day and evening divisions. An additional

3,000 students, roughly, were attending unaccredited schools. The

number probably increased in 1968. [20 Journal of Legal Education 17980

( 1968) .]

There were only about 1,250 black students enrolled in law schools

throughout the nation during 1968, according to a recent estimate. About

500 of this total were enrolled in the Howard Law School and in the other

traditionally black law schools. So there were only 700 to 800 black students

1

2 EXPERIMENT & INNOVATION

it is shared by most branches of higher education, professional and

academic.

The underpinnings of the consensus about the need for rapid

acceleration in minority group enrollment in legal education may

vary with the observer, but it will probably include the following

considerations:

1. Law schools are now more willing to accept institutional responsibility

for bringing about meaningful change. It no longer

seems adequate merely to bemoan the profound social inequalities

which have in effect barred minority students from legal education.

2. The infusion of minority students into law schools is increasingly

seen as a way to improve the quality of education for the

entire student body. Recognition is developing that there are values

to be served by making it possible for students-and faculty as

well-to come to grips with the sharply divergent attitudes and

perceptions of minority students, and with the problems generated

by racism. So viewed, a change in student composition is not merely

a way of helping “disadvantaged” black and brown students. It is

a way of helping combat a severe form of educational disadvantage

suffered by the predominantly white, middle-class student body and

faculty that constitute the principal constituencies of the law schools.

3. There is a clearly recognized need for expanding the number of

minority attorneys.

To be sure, there are other factors that contribute to this consensus.

Pressures from minority students and other members of the

minority community, reflecting their manifest unwillingness to

accept the status quo, have contributed markedly to the present

openness to change. Whatever the reasons for it, the will to change

exists. The problem now is how to implement it.

Problems of Implementation

As law schools have become concerned with developing appropriate

programs for change, various characteristic problems have

arisen: How can a sufficient number of applicants be attracted,

given the historic inaccessibility of law schools to minority students?

in all the remaining American law schools covered by the survey. With respect

to the Mexican-American, there were only 180 enrolled throughout the

entire United States-compared to a population of about 5,000,000-and

this 180 probably represents a sharp improvement as compared to a year or

two ago. [Newsletter of the Association of American Law Schools, No. 68-3

(October 7, 1968).]

PERSPECTIVES ON MINORITY ACCESS 3

Assuming the schools’ willingness to depart from present admission

criteria and techniques, what criteria and techniques should replace

them? What special forms of academic support-e.g., tutorial and

counseling programs-will students admitted under these new

techniques need? What type of financial aid program is required:

what are the appropriate levels of support, bow should such a program

be administered, and, above all, how can it be financed?

The Special CLEO Summer Program

It may be useful to discuss some of these problems in the context

of an experimental law school program, designed at least in part to

deal with each of the problems. In the summer of 1968, three law

schools in the Los Angeles areaUCLA, Loyola, and USC-in an

unusual act of cooperation jointly sponsored a summer institute for

some 40 pre-law students, black and brown. The instructional staff

consisted of three faculty members drawn from the regular staffs of

the sponsoring schools, six or seven law students currently in

attendance at these schools, and several practicing lawyers. The

institute ran full time at the UCLA law school during an eight-week

period from June 24 to August 26. Students admitted were granted

a stipend of $600 to $700 to replace lost summer earnings. Most of

the students, prior to the Summer Program, had already been

accepted for admission to law school in the fall of 1968 and had been

promised substantial financial aid over the three years of their law

school careers. This scholarship aid was made available out of a

$450,000 national Ford Foundation grant.

The academic objectives of the Summer Program were to give

minority college graduates an opportunity for advanced orientation

work, a “headstart” before beginning their formal legal studies, and

to encourage a number of college post-juniors who had not yet made

career choices to consider law as a possible career. The Program was

one of four sponsored by the Council on Legal Opportunity

(CLEO)’ which was established in January, 1968, by the Association

of American Law Schools, the American Bar Association, the

National Bar Association (an organization of black lawyers), and

the Law School Admission Test Council, whose present chairman

is Professor Frank Sander of the Harvard Law School.

‘The other three were located at Harvard, Emory, and Denver Universities.

All were funded out of a grant of about half a million dollars by the Office of

Economic Opportunity.

4 EXPERIMENT & INNOVATION

It might be noted that two CLEO summer programs or institutes,

in somewhat altered form, will operate in California during the summer

of 1969, one in Los Angeles available to the five law schools in

the southern part of the State, and one in San Francisco for the nine

northern California law schools. Each will accommodate about 60

students. Admission will be restricted to college seniors or persons

otherwise eligible for admission to law school in the fall of 1969.

Stipends to compensate for lost summer earnings will again be available,

through the extent of scholarship aid to be provided the students

once they are in law school is uncertain at this time.

Applicants to the Summer Program

Is there an adequate pool of minority group college seniors to

provide the base for a major expansion in law school enrollment?

In a little over two months-from mid-March to mid-May, 1968-

well over 300 applications were received, shattering the widely held

myth that minority applicants would be hard to come by. The

number of potential applicants is presently large and growing rapidly

because of the recruitment policies of many colleges in recent years.

The barriers to law school enrollment are not lack of interest or

desire on the part of black and brown students; they are financial

need, traditionally rigid admission standards, and widespread

skepticism among minority students that the law schools are

genuinely committed to making changes.

The principal vehicle for stimulating applications for the CLEO

Program was press publicity, both community and collegiate, stressing

the schools’ willingness to take steps to overcome the traditional

barriers. Other major generators of applications were college prelaw

advisers and those minority students already enrolled in law

schools. With the expansion of the law schools’ minority enrollment,

it is predictable that the students will themselves become major

recruiters, a role they are eager to perform. Announcements of the

Program were widely disseminated among governmental ·officials,

bar groups, community organizations, and public and private

colleges.

Roughly two-thirds of the applicants were black, and one-third

were Mexican-American. Approximately 60 percent were seniors,

eligible for admission to law school in the fall of 1968, and the balance

were juniors. The overwhelming majority of the applicants

were from California, mostly from the Los Angeles area. Over 40

PERSPECTIVES ON MINORITY ACCESS 5

percent had attended one of three Los Angeles area colleges. Two

hundred sixty-one of the applicants were male; 53 were female. A

detailed analysis of the ethnic background, sex, collegiate standing,

undergraduate schools attended, and regional distribution of the

applicants is found in Table 1.

TABLE I

ANALYSIS OF APPLICANTS

Total314

I. ETHNIC COMPOSITION

A. Black . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

B. Mexican-American . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

C. American Indian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

D. Japanese-American . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

E. Chinese-American . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

F. Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

IT. JUNIOR-SENIOR

A. Junior . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

B. Senior . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

ill. LAST SCHOOL ATTENDED BY APPLICANTS FROM WHICH

THREE OR MORE STUDENTS APPLIED

A. Cal State-Los Angeles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

B. UCLA ………… . . …. . .. . ………… . ….. . ….. 37

c. usc……………………………………… ... 23

D. Southern University-Baton Rouge, La. . . . . . . . . . . . . . . . . . . 19

E. Cal State-San Jose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

F. Cal State–San Fernando Valley . . . . . . . . . . . . . . . . . . . . . . . . 10

G. UC-Berkeley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

H. Cal State-Long Beach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I. Cal State–San Diego . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

J. Loyola-Los Angeles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

K. Cal State–Sacramento . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

L. Cal State-Fullerton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

M. Cal State–San Francisco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

N. Cal Poly, Pomona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

0. Chapman College-Orange, Calif. . . . . . . . . . . . . . . . . . . . . . . . 4

P. Occidental College-Los Angeles . . . . . . . . . . . . . . . . . . . . . . . . 4

Q. Roosevelt University-Chicago . . . . . . . . . . . . . . . . . . . . . . . . . . 4

R. University of Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

S. Livingstone College–Salisbury, N.C. . . . . . . . . . . . . . . . . . . . . 4

T. Cal State-Hayward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

U. UC-Riverside . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

V. Stanford University . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

W. Mt. St. Mary’s-Los Angeles . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

X. Pepperdine College-Los Angeles . . . . . . . . . . . . . . . . . . . . . . . 3

Y. Tuskegee Institute-Tuskegee, Ala. . . . . . . . . . . . . . . . . . . . . . . 3

Z. Fisk University-Nashville, Tenn. . . . . . . . . . . . . . . . . . . . . . . . 3

A’. UC–Santa Barbara . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B‘. University of Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

6 EXPERIMENT & INNOVATION

IV. SEX

A .. Male ………………•..•………………….••• 261

1. Black . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

2. Mexican-American . . . . . . . . . . . . . . . . • 88

3. American Indian . . . . . . . . . . . . . . . . . . . 3

4. I apanese-American . . . . . . • . . . . . . . . . . 3

5. Chinese-American . . . . . . . . . . . . . . . . . • 1

6. Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. Female . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

1. Black . . . . . . . . . . . . . . . . . . . . . . . • . . . . 44

2. Mexican-American . . . . . . . . . . . . . . . . . S

3. I apanese-American . . . . . . . . . . . . . . • • . 1

4. Chinese-American . . . . . . . . . . . . . . . . . . 2

5. Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

· V. RESIDENTIAL DISTRIBUTION

A. Los Angeles ……………………. 159

B. Other California . . . . . . . . . . . . . . . . . . . . . 67

C. Louisiana . . . . . . . . . . . . . . . . . . . . . • . • . . . 14

D. Washington . . . . . . . . . . . . . . . . . • . • . . . . . 4

E. lllinois . . . . . . . . . . . . . . . . . . . . . • • • . . . . . 4

F. Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . • 4

G. New York . . . . . . . . . . . . . . . . . . . . . • . . . . 3

H. Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . • 3

I. Washington, D.C. . . . . . . . . . . . . • . • . . . . . 2

I. South Carolina . . . . . . . . . . . . . . . . . . • • • . . 2

K. Mississippi . . . . . . . . . . . . . . . . . . . . . • • . . . 2

L. North Carolina . . . . . . . . . . . . . . . . . • . . . . 2

M. Arizona • . . . . . . . . . . . . . . . . . . . . . • . . . . . 2

N. Carribean . . . . . . . . . . . . . . . . . . . • • . . . . . . 2

0. Arkansas . . • . . . . . . . . . . . . . . . . . • . . . . • . . 1

P. New Mexico . . . . . . . . . . . . . . • . . • . . . . . . . 1

Q. Hawaii . . . . . . . . . . . . . . . . . . . . . . . . . . . . • 1

R. Michigan . . . . . . . . . . . . . . . . . • . . . . • . . • • 1

S. Texas . . . . . . . . . . . . . . . . . . . . . • • • • . . . • • 1

Admissions to the Summer Program

Of the more than 300 people who applied for admission to the

Summer Program, 42 were admitted-14 Mexican-Americans; 28

blacks. Thirty-four were seniors, eight juniors. All of the seniors

and two juniors-a total of 36-had accepted offers of admission to

and subsequently enrolled in various law schools, principally UCLA,

Loyola, and USC, the sponsoring schools. This indicates the direct

impact of the CLEO Program.

The Program had an additional, indirect impact. A substantial

number of those CLEO applicants denied admission to the Summer

PERSPECTIVES ON MINORITY ACCESS 7

Program were nonetheless admitted to one or another law school.

While the precise figure is not known, it probably runs as high as 45.

Thus 80 or more minority students entered law schools, in part

because of the Program’s efforts. Some of these no doubt would have

applied to and been accepted by law schools independently of the

CLEO Program. But it seems realistic to say that the Program was a

major stimulus to minority recruitment, at least on the part of the

three sponsoring schools: It encouraged widespread minority applications

for law school admission; it acted as a clearinghouse for

applicants, putting interested students and law schools in touch with

each other; and the very existence of the Program stimulated several

law schools to embark upon more aggressive recruitment efforts

than they otherwise might have undertaken.

Several aspects of the recruitment pattern of the Los Angeles

CLEO Program deserve comment.

1. The Program was not conceived as a device for screening students.

Admission to law school was not made dependent upon the

student’s performance in the Program. As a matter of fact, each of

the senior students had been guaranteed admission to a law school

before the summer course of study even began.

2. A distinctive feature of the recruiting pattern of the Los Angeles

CLEO Program was its narrow geographic focus. This was in contrast

to the technique pursued in recent years by many of the

national schools, in which academically qualified minority graduates

have been culled from all over the country, particularly from the

historically segregated colleges in the Deep South. Primary concern

in the Los Angeles CLEO Program centered upon students from the

black and Mexican-American ghettos that constitute the backyards

of the three Los Angeles law schools. Furthermore, no effort was

made to disperse these students among law schools over a wide

geographic area. They enrolled primarily in the three Los Angeles

law schools participating in the Program. There were several reasons

for this emphasis:

(a) The three sponsoring law schools normally recruit largely

from Southern California. It seemed essential to provide

comparable opportunities for members of the minority community

in the same area. In part this was in recognition of a

condition recently emphasized by the events at Columbia

University, and commented on by John Gardner, in an obser8

EXPERIMENT & INNOVATION

vation that many universities are “poor corporate citizens of

their communities,” accepting their importance in relation to

their communities without asking themselves what this

implies in the way of obligations.

(b) With their community perspective, these students gave

promise of injecting a highly distinctive and valuable quality

into the law schools.

(c) Placing a large number of minority students in a single law

school would create a more hospitable environment for the

students and would enhance the likelihood of their success.

(d) Such a concentration would also enable the minority students

to develop a more effective voice within the school on issues

of vital concern to them.

3. Recruiting efforts were undertaken jointly by the three participating

law schools. A single application to the CLEO Summer Program

could serve also, if the applicant chose, as an application for

admission to any of the three sponsoring law schools. The application

also came to serve as an application for the Law Schools

Admissions Test (LSAT), the analogue of the College Boards and

the Graduate Record examinations. The LSAT was administered

without charge in the Los Angeles area in April, 1968, by courtesy

of the Educational Testing Service. Thus, with one fairly short application

form and with no application fees whatever, the student could

apply for admission to the CLEO Summer Program, to each of three

law schools, and for a free LSAT examination.

Such joint recruiting efforts might well have been extended over

an even broader area. A single application form could be adopted for

use throughout the State of California or major parts of it. Anyone

involved in such efforts can scarcely avoid being impressed by the

need for national and regional cooperation and for brokerage services

between applicants and law schools. Without question there

are substantial numbers of minority students who wish to go to law

school and law schools that wish to admit them; but in many cases,

an effective way to bring student and school together does not exist.

The Issue of Inter-Minority Quotas

A pervasive issue in the Los Angeles Program related to the

method of allocating places among various minorities, particularly

between black and brown students. In spite of certain pressures, the

Program did not adopt a policy of inter-minority quotas. Roughly

PERSPECTIVES ON MINORITY ACCESS 9

one-third of those admitted to the Program turned out to be

Mexican American, a proportion somewhat exceeding that of their

applications.

A number of Mexican-Americans in the Program and in the community

strongly advocated a quota under which half the admittees

would be members of this group, arguing that Mexican-Americans

constitute the largest single minority group in the Los Angeles area,

that the community need for MexicanAmerican attorneys is acutefar

greater than that for any other group–and that the educational

and financial disabilities facing Mexican-Americans are more severe

than those that confront other minorities.

The Program’s administration felt, however, that quotas, even

though benignly motivated, tend to evoke substantial concern, and

believed that it would be more desirable for the law schools, in cooperation

with Mexican-American students, to undertake large-scale

recruiting efforts which could increase the number of applicants from

that community and tend to bring the number of admissions more

into line with community needs without the imposition of a quota.

Criteria and Techniques of Selecting

Students for the Summer Program

A substantial expansion of minority enrollment presupposes

broad, flexible standards and techniques of admission. National

CLEO policy in fact required such flexibility. The Summer Program

was reserved for students who did not possess the traditional

academic qualifications required for admission to law school. Some

of those who applied did in fact meet traditional standards; they

were admitted directly to law school without passing through the

Summer Program. Those admitted to the Program therefore were

characterized by two conditions: they had already been assured of

a place in a law school for the forthcoming academic year, and they

Jacked the paper credentials traditionally required for admission to

law school.

Admission Standards and Legal Education

When one adopts a policy of “broadening” or “altering” admission

standards, or of applying them “more flexibly,” one must sooner or

later face up to the charge that these are merely euphemisms for

lowering standards. But this seems too facile and uncritical an

acceptance of the sanctity of the traditional norms that underlie

10 EXPERIMENT & INNOVATION

selection of students. In this section, an effort is made to consider

some of the student qualities that might best contribute to the development

of a sound academic environment, to suggest some criteria

other than conventional academic achievement that might legitimately

be brought to bear on the selection process, and to compare

these criteria with those presently in use.

Who Should be Eligible? The Argument of Need

The need for a vast increase in the number of black and brown

attorneys is critical. The need is immediate and intense, and ways

must be found to fulfill it sooner rather than later. If this requires

selection of students with markedly lower academic credentials than

is customary, this course is fully justified. Certainly a central function

of a professional school is to serve community needs for professionals.

There is, however, not one community but several; and the

needs of some, as we have been recently made aware, have been the

subject of notorious neglect. The minority community is entitled to

an adequate pool of minority lawyers. The law schools have the

obligation to help create it. Equally to the point, a law career in this

society is a vital pathway to positions of power. To deny effective

access to the profession is to deny totally access to judgeships and to

limit severely access to government, business, and politics.

It might well be agreed that these are sufficient reasons for departing

from present methods of screening minority students. To meet

these needs, the principal criterion for admission would not be

whether the minority applicant is as “qualified” academically as

those normally accepted, only whether he stands a “reasonable”

chance of success.

Are the Traditional Criteria Valid?

The argument thus far, it will be noted, has not put in issue customary

notions of academic excellence. It merely offers reasons why

other values might be entitled to great deference in student selection.

But it is surely appropriate to speculate about the validity both of

current notions of academic excellence and the techniques used to

measure it. This raises issues that are hard to get at and complex,

because one’s views about the appropriate criteria for selecting law

students rest ultimately on premises, often unexpressed, about the

nature and obligations of legal education, of lawyers, and of the

society in which they function. The solution is not made any easier

PERSPECTIVES ON MINORITY ACCESS 11

by the biases law professors inevitably bring to the subject. In addition

to the usual array they share with other mortals, they have a

unique bias borne of their position as academics. They have mastered

the system as it now stands. Indeed they owe their faculty status to

their outstanding success as students in the system. It has certified

them as persons of considerable distinction. They are children of the

system, and it would be a thankless child who now questioned the

very standards that proclaim his virtue. The effort nonetheless may

be worthwhile.

Central to the going standard is some notion of intellectual competence.

Measured how? At the point of law school entry, primarily

by two “objective” criteria: the scores received by the student on the

Law School Admissions Test (LSAT) and his undergraduate gradepoint

average ( GP A). Other qualities may also be taken into

account, but there is little doubt about the primacy of these two. A

principal justification for the weight attached to them is that they

prove to be excellent predictors of law school grades. In turn, grades

in law school are a reliable predictor of success in the bar examination.

These admission criteria, so the argument goes, therefore

facilitate the rational allocation of scarce resources: law school

seats.

That these predictors prove reliable should surprise no one. They

each test for many of the same qualities. If there are cultural biases

in one, they faithfully reflect those found in the others. This in itself

establishes only that the hurdles the student must surmount are

roughly similar at the various stages of his odyssey from college into

the bar, not that they are an adequate basis for determining whether

an individual embodies the cluster of qualities appropriate either to

law student or practitioner. What is needed is, first, a scrutiny of how

well the various tests, when applied to minority students, do in fact

predict success as traditionally defined; and, far more fundamental,

whether this is an adequate definition of “success.”

Existing admission standards may prove a highly inadequate way

of determining which minority students are capable of success in law

school. It should be noted that the Educational Testing Service itself

makes no exaggerated claims for the predictive validity of the LSAT.

There will be a great number of cases where prediction misses the

mark by a moderate amount and a sizeable number where actual performance

will be directly opposite from predicted performance. This

12 EXPERIMENT & INNOVATION

should be a sobering lesson to anyone tempted to think that the test

scores offer an easy and complete solution to his admissions problems.15

Because the test does not measure motivation or maturity, or perhaps

for other reasons, its validity may be a good deal lower for

minority group members than, say, for white, middle-class students.

National studies of the test are presently under way. If diminished

reliability is established, this would furnish a telling argument for

departing from existing admission criteria. Such a departure would

presuppose alterations neither in the law school, its faculty, its curriculum,

its value system, nor in the legal profession. All that is put

in issue is the validity of conventional methods for predicting conventional

success.

A far more fundamental issue turns on one’s views about what

constitutes quality in the educational process and about which student

characteristics would most contribute to it. This of course raises

the most difficult issues of educational theory and policy. But surely

a process worthy of the name “education” presupposes an atmosphere

marked by challenge, skepticism, and critical inquiry. And

just as surely, the addition of black and brown perspectives would

enrich, indeed in contemporary America are indispensable to, the

process. Legal education is centrally concerned with understanding

some of the principal institutions and techniques of conflict resolution.

The perceptions of these institutions and techniques on the part

of the victims of historic discrimination are an indispensable ingredient

to better understanding of the most explosive area of

conflict in American life. The educational dividends flow not

merely from the different “views” of minority observers–that

understates the point. Minority members may not only hold different

views on issues of traditional concern, they may incline to challenge

the relevance of the issues as conventionally defined. A classic issue

of legal theory, for example, is whether certain powers should be

allocated to judge or jury. The black man’s insight may be that the

distinction is of trivial importance, so long as both are white.

To take account of the diversity in life perspectives and outlooks

in the student selection process, of course, represents no innovation

for the many academic institutions in which it has long been the

established practice to aim for diversity in geographic origin,

6 Quoted from the LSAT Handbook in Winterbottom, Comments on “A

Study of the Criteria for Legal Education and Admission to the Bar,” An

article by Dr. Thomas M. Goolsby, Jr., 21 J. of Legal Ed. 75, 78 (1968).

PERSPECTIVES ON MINORITY ACCESS 13

religious and cultural background, and so forth. Sometimes narrow

academic achievement is “sacrificed” to the interest of these institutions

in rich variation in their student input. If this is desirable in

general, it is of unparalleled importance in the case of the discriminated-

against minorities.

Another aspect of educational value should be noted: students

learn about the law, in the deepest sense, not only through their

study of formal legal mechanisms, but also from the demonstrated

concerns and values of the law school, a highly significant legal institution

in its own right. The school may profoundly and lastingly

mold student attitudes as to concerns and values appropriate to

lawyers by the example it sets. A school’s demonstration of concern

for expanding minority educational opportunity advances this

value also.

Consider now some specific dangers in over-reliance on projected

law school examination performance, the conventional method of

student evaluation, as a basis for determining law school admission.

However the skills tested for in these examinations are defined,

“issue spotting,” “analytic skills,” or otherwise, it is far from clear

that these are the only, or even the central, skills or qualities needed

in practice. In weighing the likelihood of a person’s success in practice,

skills in client counseling or in negotiating may be of critical

importance; so also his capacity for hard, detailed, tenacious, tedious

work; his devotion to the interests of his client or community; and

his capacity fully to comprehend the interests at stake for his client,

because of personal identification with those interests. Perhaps

somewhat different combinations of qualities are essential for a

lawyer, depending on the type of lawyer he wants to become. The

needs may differ for one who aspires to become a “community

lawyer” as compared with one who aspires to become a corporation

lawyer.

Even if it were agreed that the law school is focusing upon the

essential skills and qualities, the artificialities of the examination

process may introduce biases irrelevant to the demands of practice.

Note the requirements the typical examination places upon a person,

in contrast to those confronted in practice.

1. Examinations test the student in a written, rather than an oral

form. The problem is aggravated at those law schools which follow

the practice of “blind” grading, under which the instructor does not

know whose paper he is grading. He therefore is unable to take into

account the student’s classroom performance, which may be excel14

EXPERIMENT & INNOVATION

lent, in his evaluation of the student’s examination paper, which may

be poor.

2. Examinations are conducted under highly speeded, artificial

time limitations. There is little time for reflection about the problem

before attempting a solution.

3. The student is not permitted to consult any research sources.

He is required to answer solely on his unaided reserves of memory

and understanding.

4. He must answer the question by himself, rather than mull the

problem over with colleagues in the fashion typical of the practicing

lawyer.

5. The examination questions are hypothetical. Some students

have a low toleration for the unreal and may experience far greater

difficulty comprehending these questions than they would if the same

issue arose in practice where the tangible significance of the controversy

were plain.

6. An examination question is often calculatedly ambiguous. The

student is expected to tolerate, indeed thrive, on the ambiguity. But

students may differ in their capacity to tolerate such ambiguities,

many of which would be eliminated in real life by adequate investigation

and preparation.

The point here is that the student might perform far more satisfactorily

in practice with respect to given skills than he does in a

highly artificial examination system. Put another way, not only may

the examination processes be culturally biased, the bias may be

irrelevant in terms of the requirements of practice.

To exaggerate the point for emphasis, the law student who possessed

only those skills tested for on law school examinations would

conform to the following profile: he would be proficient at providing

rapid answers in writing, independently arrived at, without research-

and he could be quite lazy, altogether indifferent to his

client’s interests, an incompetent negotiator and an insensitive

counselor.

This is of course no argument that traditional law school skills

are irrelevant. They may, however, be less central to the requirements

confronting the average lawyer than is frequently believed.

Adherence to this examination process reflects, in part at least, the

judgment that there is no better way of doing the job, rather than a

conviction that it is immune from serious criticism. This may (or

may not) have been an adequate justification so long as the process

was merely selecting from among a relatively homogeneous group of

PERSPECTIVES ON MINORITY ACCESS 15

white students. It is wholly impermissible-a faculty cop-out-if the

effect of its shortcomings is to screen out the vast majority of minority

students in large volume.

Even if law schoolsobjectives with respect to skills training are

adjudged sound, even if the testing methods are believed valid, it is

unsound merely to exclude those for whom the chances of success

are relatively low. The job of the teacher is to teach. A variety of

forms must be developed to help the student with special problems to

meet the academic demands. Moreover, students with low academic

credentials may take somewhat longer to get in the swing of law

school work than others. The minority student with a low LSA T

may end up performing better in the second or third year than in the

first. We do not know. If so, and if the need is sufficiently urgent, this

argues for giving such students the opportunity to repeat work performed

unsatisfactorily on the first round rather than denying them

the opportunity in the first place.

Beyond that, it should be recognized that curriculum is undergoing

change in many schools. The aim is to respond to the

ubiquitous student demands for “greater relevance.” What is unknown

is how the minority student with low academic credentials

will perform in a curriculum so enriched and altered. In evaluating

the chances of a student’s success, in other words, law school should

not be viewed as an immutable given, the demands of which the student

must meet on pain of exclusion. Law schools should change, are

changing, and probably will continue to change, in ways that will

shape them somewhat more closely to the interests and talents of the

minority students.

To the degree this is achieved, present standards of admission may

be rendered substantially less relevant. As such changes occur, it

may well turn out that not only the minority students but the general

run of students and faculty as well are the beneficiaries. Surely all

engaged in the educational enterprise are victims in varying degrees

of bureaucracy, insensitivity, and irrationality. The re-examination

of some of these methods of student evaluation may be immediately

triggered by concerns with the problems of minority students, but

the benefits of change will not be restricted to these students.

Participation in Decisions about Admission

A word may be in order about who should participate in the admission

decisions. Perhaps two central criteria are involved in these

decisions: predictions of the probability of the student‘s academic

16 EXPERIMENT & INNOVATION

success, and predictions of the contribution he is likely to make to

the law school educational process and to the society at large. The

process transparently involves personal values. It is indefensible that

the decisions should reflect solely the values of white academics.

Minority group members should not be denied a voice merely because

of their meager representation in the academic structure, itself

a result of the very condition such programs are designed to overcome.

Appropriate participation should be guaranteed through

minority faculty members (where they exist), administrators, students,

or lawyers.

With respect to the mechanical technique of selection for the

CLEO Program, the selections committee had before it the college

transcripts of the applicants, their LSAT scores, and letters of

recommendation. All of the senior applicants in the Los Angeles

area were interviewed by representatives of one or more of the three

sponsoring law schools. Representatives of two of the sponsoring

law schools spent a total of about ten full days interviewing about

175 applicants. The other school preferred the technique of interviewing

a smaller number of people in greater depth.

The Curriculum and Academic Objectives of the Summer Program

Three courses of regular law school type were offered, each taught

by a full-time faculty· member (one from each of the sponsoring

schools). They dealt with voting rights, personal property, and the

legal process. The courses were in most respects taught precisely as

they would have been in law school. Traditional legal materials,

cases and statutes, were used. The method was Socratic. Style, of

course, varied with the instructor. The principal differences as compared

to law school were that the courses were not for credit and

that their subject matter was not coexistensive with any of the traditional

first year courses. The students were divided into two sections

of about 20 each. Both sections of each course met three hours a

week.

A mock trial extended over most of the eight-week period. Among

its highlights were a preliminary hearing in a criminal case and a

jury trial, each presided over by an outside judge. Students performed

the role of the attorneys. The students were divided into

prosecution and defense sections, each numbering about 20.

A major object was to give the student the opportunity to do written

work and have that ·work closely evaluated. Two student instrucPERSPECTIVES

ON MINORITY ACCESS 17

tors were specially retained to read the student papers, criticize them,

and discuss them with the students.

There were several field trips to the criminal courts and to large

law offices.

The academic objectives of the Summer Program were twofold:

to provide exposure to typical law school work and skills, and to

cope with certain problems of “motivation.” The latter purpose was

predicated on the belief that more than a few students would be

highly skeptical about the relevance of the legal system-either because

they did not regard it as a significant instrument for critically

needed social change, or at any rate, because they did not believe

it a meaningful arena for personal commitment, given competing

paths open to them.

The curriculum reflected each of these objectives to a degree. The

“skills” orientation was reflected in the three courses which were

the backbone of the Program, in writing projects of the traditional

law school sort, and in the mock trial which ran over most of the

Program. The “motivational” concerns were reflected in an effort

to incorporate subject matter in the curriculum that might more

readily be perceived by the students as “relevant” -one of the

courses dealt with the protection of voting rights against discrimination;

the mock trial revolved around a criminal prosecution of students

for conduct on a college campus arising out of a racial issue;

several outside speakers sharply raised the issue of the relationship

of law to contemporary social change (these included a number of

minority lawyers and also Governor Reagan’s counsel); students

were encouraged to attend certain outside events in which issues of

“relevancy” might prominently arise, e.g., the trial of Huey Newton,

and sessions of the National Lawyer’s Guild convention, each of

which took place during the Program; and efforts were generally

made to create an atmosphere which recognized the legitimacy of

questions about the “relevance” of any subject under consideration

to the actual operation of the legal system or to the student’s values

and concerns.

Criticisms of the Program

It may be useful to consider a number of criticisms that were

leveled at the Program by some staff members and students:

1. That it was hampered by confusion of goals. A number of staff

members felt that the Program’s two objectives–to provide expo18

EXPERIMENT & INNOVATION

sure to typical law school work and skills, and to cope with certain

problems of “motivation”-could not both be successfully pursued

within the brief scope of the Program. One staff member commented,

in part, “Establishing two goals rather than developing the single

goal of preparing the summer students for law school affected the

entire program, causing such confusion and tension that it was not

possible to reach a satisfactory intellectual atmosphere necessary

for an effective orientation to a legal education.”

Many of the participating students, however, had serious problems

of motivation as well as of academic preparation. A recurrent

theme in the comments of many students was a profound skepticism

about the relevance of the legal system to their personal goals. It

seemed desirable to create an atmosphere that recognized the legitimacy

of such questions. Furthermore, it seemed to some of us that

the sharp distinction between problems of motivation and traditional

academic problems suggested by this criticism was, as a matter

of educational reality, often a false dichotomy.

2. That not enough attention was focused in the Program on cultivating

those basic skills vital to survival in law school.

This implies that there are easily identifiable, fundamental techniques

indispensable to success in law school that the Program might

have taught adequately but did not. The faculty members of the

Program found it no easier in this context than in the regular law

school curriculum to determine what these techniques and skills are

and how to teach them successfully. It takes an experience like the

Program to make one fully appreciate how little educational theory

we have and how intuitive is our approach to educational technique.

The system is presently set up for those students who have a certain

complement of conceptual-verbal habits. It has paid little attention

to the problem of how to help educate those whose difficulties may

lie precisely in this area.

3. That students were not exposed to the typical law school sanctions,

requirements, and expectations and therefore could not derive

the maximum benefit from the Program; that, indeed, they were

given a false sense of the real experience they were about to confront

in law school.

It is true that the Program invoked no threats to compel satisfactory

performance. The student was already assured of admission to

law school. He was not graded on his course work, nor docked part

of his stipend for non-attendance or for failing to turn in work.

PERSPECTIVES ON MINORITY ACCESS 19

Under these circumstances, about 20 to 25 of the 42 students attended

regularly and performed substantially all of the assigned

work. For them, the absence of sanctions seemed to be an educational

feature of distinct value. The performance of the other students

shaded off from spotty to wholly inadequate. Sanctions might

have improved the performance of this group, though some members

of the staff believed there was great value in permitting students to

experience the Slimmer Program on their own terms without external

compulsion.

The Problem of Financial Aid

The financial support which the student might expect during his

first year of law school was the biggest single problem that confronted

the Los Angeles CLEO Program. It was the cause of student

walkouts from classes, negotiations, threats, and more negotiations.

It exercised the students, the Program administration, and, no doubt,

the national CLEO administration. The issue was very complex and

the solution not readily evident.

Two aspects of the financial arrangements troubled the students:

They did not know until late in the summer how much support they

would receive, and they challenged the adequacy of the amount

once it was known.

Uncertainty

The Program made no definite commitment to the students about

the amount of financial aid for the forthcoming school year until

mid-July. Each student was then informed that he would receive a

full tuition scholarship and a cash fellowship (if need for the latter

was demonstrated, as it almost invariably was) in the following

amounts: The basic stipend was $2,000. A married student with a

child received $2,500 and for each additional child an additional

$250. These amounts are comparable to those provided in many

standard scholarships for graduate students, a little better than some

and a lot worse than others (particularly some of those that are federally

financed). One thousand five hundred dollars of this total per

student was provided out of the CLEO-administered Ford grant; the

balance, by the respective law schools.

The student had not been notified earlier of the amount he would

receive because the amount available was not known earlier. The

national CLEO made no definite commitments until July, and the

20 EXPERIMENT & INNOVATION

separate financial resources in the case of UCLA, which is dependent

on the annual operating budget provided for the University of California

by the State Legislature, was not known until the beginning

of July.

This uncertainty had presented a dilemma in the recruitment

efforts of the Program. We were reasonably confident that substantial

sums of money would be available. We wanted to indicate this

fact in our publicity in order to encourage applications. On the other

hand, we were not prepared to make definite commitments. The

dilemma was resolved by publicly announcing that CLEO students

would “receive substantial financial assistance toward the payment

of law school expenses throughout their law school enrollment.”

In early July, during one of the regularly scheduled class hours,

35 to 38 of the students assembled and presented the Program

administration with their concerns about the financial uncertainty.

Stated in its strongest light, the student position amounted to this:

You have encouraged us to leave summer jobs for the CLEO Program,

to abandon other careers, and to re-orient our lives to become lawyers.

You have promised us financial support. Many of us have extreme financial

needs and must make plans for this coming fall. You have explained

all the reasons for your financial uncertainties. But either the

amount from CLEO is definitely committed or it is not. If it is, you

ought to tell us now so we can now rely on it. If it is not, if there is a

risk the money will prove unavailable, why should we be saddled with

the burden of uncertainty? The law schools are far more capable of

shouldering the risk. Let them make the necessary commitments, and

then raise the money.

When the fact of the student protest was communicated to national

CLEO, the scholarship funds were released within a few

hours. To view the problem from the vantage point of the minority

student, it appeared as though there were an excessive, bureaucratic,

concern on the part of the administration with its administrative

convenience and an inadequate sensitivity to the pressing needs of

the students–until student pressure was brought to bear. Whatever

the degree of alienation of white students from academic and governmental

bureaucracy, in a certain sense it is their bureaucracy,

run by their parents or people much like them. To the minority student,

such bureaucracies are alien and viewed primarily as structures

whose central mission has been to find ways and reasons to deny

them their rights. To respond with the explanation that this is the

way we treat everybody-that we are evenhandedly inhumane-is

an argument of limited appeal.

PERSPECTIVES ON MINORITY ACCESS 21

How one views the student reaction depends ultimately on one’s

starting point. One may conceive of such efforts as a favor to minority

students for which they should be duly grateful. On the other

hand, one may believe these students have rights which have not

been previously attended to, that educational institutions have not

been sufficiently sensitive to their potential contributions and to the

reasons for such academic deficiencies as they may have, that such

programs are not the result of noblesse oblige, but rather a matter of

right.

The Level of Support

Once financial commitments were finally made, the issue shifted

to the adequacy of the amounts. After a prolonged period of negotiations,

impossible to describe within the confines of this discussion,

the participating law schools agreed to raise an additional sum over

the amount already pledged and distribute it among the most needy

students, largely as determined by the students themselves. The reasons

for these demands and for the strength of the feeling associated

with them are complex and include:

1. A belief that the amounts provided, particularly for those with

family obligations, were inadequate to carry the student through the

first year of law school. To superimpose these financial difficulties

upon the special academic problems already anticipated would

invite academic disaster.

2. The students’ desire for a hand in shaping decisions vitally affecting

their lives. They rejected an atmosphere in which financial

support might be viewed as largess from above rather than a product

of mutual discussion.

3. The feeling of a number of the students that they had been

misled by earlier, vague references to “substantial financial aid.” This

phrase could mean entirely different things to different people. The

Program, in lawyer-like precision, thought this promised nothing

specific; students in good faith often interpreted it otherwise.

4. The fact that a number of CLEO students intend to become

lawyers in their own communities rather than to seek out more lucrative

arenas of practice. Many of these students were already

heavily burdened by debts. If they were further burdened by additional

thousands of dollars of indebtedness to finance their law

school careers, it would be exceedingly hard for them to go into the

type of community law practice that had motivated their coming to

law school. They would be compelled to seek fairly high-paying

22 EXPERIMENT & INNOVATION

work in order to meet loan obligations. Loan requirements would

thus pervert the purposes of the Program.

The sums of money needed to provide adequately for subsistence

and tuition are enormous if compared to the amounts presently

available. While figures are incomplete, a rough estimate would be

that some $200,000 was committed by the three Los Angeles schools

to meet the financial requirements of approximately 60 students for

the current year. Of this $200,000, $45,000 was made available

from the CLEO administered Ford grant. The balance of $155,000

was raised by the three schools elsewhere. Given the same rate of

minority recruitment in the next two entering classes-not to speak

of accelerated recruitment-the financial need in 1970 will run

about half a million dollars a year, just for the three Los Angeles

law schools. The amount needed for an analogous statewide expansion

would run into many millions. The sums presently available

are, of course, grossly inadequate, though thus far they are relatively

favorable in the case of the University of California law schools,

because of the availability of educational opportunity funds. Based

on the experience of the Los Angeles Program, it is no exaggeration

to say that, for the present, the limiting factor upon the expansion

of minority enrollment is neither the lack of students nor the unwillingness

of law schools,· it is rather the lack of money.

A soundly conceived financial aid program would, I believe,

include the following features:e

Since the overwhelming majority of minority group students came

from families unable in any way to assist them financially, and since

a large number will enter law school having already incurred substantial

debts in the course of obtaining their undergraduate educations,

the sums provided should be sufficient to enable a student to

pursue his academic work with a minimum of distraction from financial

pressures. On the average, the minimum amount provided

a single student should be about $2,500, in addition to tuition. The

amount should, of course, increase for the student with dependents,

perhaps at the rate of $1000 per child.

Because of the financial condition of most minority group students,

the financing of any portion of their legal education through

0 What ensues represents proposals made by Professor Richard Wasserstrom

and myself to the national CLEO. National Goals for Expanding Minority

Group Entry into the Legal Profession: Some Proposals to the CLEO

Council, October 1, 1968 (unpublished).

PERSPECTIVES ON MINORITY ACCESS 23

loans should be avoided. However, to the extent to which a loan

program may become necessary, it should provide interestfree loans

which do not become payable until a substantial period of time (say

five years) after graduation from law school. More importantly, any

such loan program should contain forgiveness provisions if the recipient

chooses to employ his legal skills on behalf of the minority

community or in public service generally.

Should an individualized determination of financial need be a

prerequisite to financial aid? Admittedly, failure to make a detailed

scrutiny may occasionally result in a student without need getting

funds. But, given the great need almost all minority students present,

administration of a detailed means test as a condition for financial

aid will end up being more expensive than across-the-board allocation

of a standard sum. Moreover, detailed and searching financial

inquiries can be most demeaning to the applicant. On the other hand,

if inquiries are not detailed and searching, they provide only a spurious

basis for precise determination of need. If any means test is

employed, it should be an extremely simple and “gross” test, so that

if needis demonstrated by the applicant for substantial financial

assistance, the standard stipend should be awarded, without more

detailed inquiry to determine whether a smaller amount would

suffice.

To Sum Up

In any efforts to improve the access of minorities to legal education,

we must grapple with a number of problems, some of them

difficult even to understand, and one of themthat of financial

aid-simple enough to understand but difficult to resolve. The Los

Angeles CLEO Program demonstrated that the anticipated problem

of attracting a sufficient number of applicants for legal education

need perhaps cause little concern. There remains, however, along

with the problem of providing financial aid at the needed levels, the

tangled area of devising appropriate admission standards and criteria;

of learning what constitutes validity in the educational process

and what student characteristics would most contribute to it; of

gauging the adequacy (or, rather, the inadequacy) of our educational

theory and technique as applied to students who lack the particular

pattern of conceptal-verbal habits for which the present system

is set up; and of discovering how to motivate students who have

little or no stake in the system-or perhaps more importantly, of

24 EXPERIMENT & INNOVATION

discovering how to change that system to make it more relevant to

valid motivattions that already exist in such students. If the CLEO

Program provided no final solutions, it was a useful experiment, and

helpful in illuminating the problems. • D f!l

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s