The White Bias in Legal Education

July 16th, 2015 / By Deborah J. Merritt

Alexia Brunet Marks and Scott Moss have just published an article that analyzes empirical data to determine which admissions characteristics best predict law student grades. Their study, based on four recent classes matriculating at their law school (the University of Colorado) or Case Western’s School of Law, is careful and thoughtful. Educators will find many useful insights.

The most stunning finding, however, relates to minority students. Even after controlling for LSAT score, undergraduate GPA, college quality, college major, work experience, and other factors, minority students secured significantly lower grades than white students. The disparity appeared both in first-year GPA and in cumulative GPA. The impact, moreover, was similar for African American, Latino/a, Asian, and Native American students.

Marks and Moss caution that the number of Native American students in their database (15) was small, and that the number of Latino/a students (45) was also modest. These numbers may be too small to support definitive findings. Still, the findings for these groups were statistically significant–and consistent with those for the larger groups of African American and Asian American students.

What accounts for this disturbing difference? Why do students of color receive lower law school grades than white students with similar backgrounds?

“Something . . . About Legal Education Itself”

Marks and Moss are unable to probe this racial disparity in depth; their paper reports a wide range of empirical findings, with limited space to discuss each one. They observe, however, that their extensive controls for student characteristics suggests that the “racial disparity reflects something not merely about the students, but about legal education itself.” What is that something?

One possibility, as Marks and Moss note, is unconscious bias in grading. Most law school courses are graded anonymously, but others are not. Legal writing, seminars, clinics, and other skills courses often require identified grading. Even in large lecture courses, some professors give credit for class participation–a practice that destroys anonymity for that portion of the grade.

No one suspects that professors discriminate overtly against minority students. Implicit bias, however, is pervasive in our society. How do we as faculty know that we value the words of a minority student as highly as those offered by white students? Unless we keep very careful records, how do we know that we remember the minority student’s comments as often as the white student’s? These are questions that all educators should be willing to ask.

Another explanation lies in the psychological phenomenon of stereotype threat. When placed in situations in which a group stereotype suggests they will perform poorly, people often do just that. Scientists have demonstrated this phenomenon with people of all races and both genders. Math performance among White men, for example, declines if they take a test after hearing information about the superiority of Asian math students.

Legal education itself, finally, may embody practices that favor white students. Are there ways in which our culture silently nurtures white students better than students of color? I’d like to think not, but it’s hard to judge a matter like that from within the culture. Cultures are like gravity; they affect us constantly but invisibly.

Other Influences

I can think of three forces originating outside of law schools that might depress the performance of minority students. First, minorities may enter law school with fewer financial resources than their white peers. Marks and Moss were unable to control for economic background, and the minority students in their study may have come from financially poorer families than the white students. Students from economically disadvantaged backgrounds may spend more time working for pay, live in less convenient housing, and lack money for goods and services that ease academic study.

Second, minority students may have less social capital than white students. Students who have family members in the legal profession, or who know other law graduates, can commiserate with them about the challenges of law school. These students can also discuss study approaches and legal principles with their outside network. Even knowing other people who have succeeded in law school may give a student confidence to succeed. Minority students, on average, may have fewer of these supports.

In fact, minority students may suffer more than white students from negative social capital. If a student is the first in the family (or neighborhood) to attend law school, the student’s social network may tacitly suggest that she is unlikely to succeed. Minority students may also be more likely than white students to face family demands on their time; families may rely economically and emotionally on a student who has achieved such unusual success.

Finally, minority students bear emotional burdens of racism that white students simply don’t encounter. Some of those burdens are personal: the white people who cross the street to avoid a minority male, the shopkeeper who seems to hover especially close. Others are societal. We were all upset by the church massacre in Charleston, South Carolina, but the tragedy was much more personal–and threatening–for African Americans. How hard it must be to continue studying the rule against perpetuities in the face of such lawlessness and racial hatred.

What Should Law Schools Do?

I don’t know the causes of the racial disparity in law student grades. One or more of the above factors may account for the problem; other influences may be at work. Whatever the causes, the data cry out for a response. Even if the discrepancy stems from the outside forces I’ve identified, law schools can’t ignore the impact of those forces. If we’re serious about racial diversity in the legal profession, we need to identify the source of the racial grade gap and remedy it.

Law schools face many challenges today, but this one is as important as any I’ve heard about. It’s time to talk about the burdens on minority students, the ways in which our culture may aggravate those burdens, and the steps we can take to open the legal profession more fully to all.