Monday, June 06, 2005

Re: The New York Times and Hopes and Fears

June 6, 2005


From: Dean Lawrence R. Velvel

Dear Colleagues:

In view of The New York Times series of articles about class in America, including an article on the effect of education, I have decided to post on my blog pages 135 through the middle of page 146 of The Hopes And Fears Of Future Years, which is Volume III of the quartet entitled Thine Alabaster Cities Gleam (a fictionalized remembrance of things past, to steal from Proust). The posted pages, which appear below, deal with important class-separating aspects of one of the most class-separating of all forms of education, legal education.

As soon as NNELS was up and running, the school began to prepare for an inspection by the Board of Regents on October 11 and 12, less than eight weeks after it held its first classes. Only once before had any new school of any type been inspected by the Board so early in its life. Usually a school was in operation for one or two years before it was inspected. This gave it time to work out the kinks and to further develop prior to the inspection (which was considered highly desirable because a school had to pass the Regents' inspection or it would not be allowed to grant degrees to graduates. (Because Free State had not passed a Regents' inspection, it was unable to grant law degrees and, without law degrees, its graduates could not take the bar exam.)

The only time a school previously had been inspected as early as NNELS was when an extraordinarily wealthy manufacturer had opened an engineering school that he financed to the tune of $150 million. With that kind of money before it even opened its doors to students, the school put its entire program in place, hired all its faculty members and deans, and obtained Regents' approval to grant engineering degrees even
before it held its first classes. NNELS, by contrast, had asked to be and was in fact being inspected early-on even though it had no money to speak of.

There was a fundamental reason why, in early July, the founders had asked James Wisner to send a Regents' inspection team to NNELS in the fall of 1988. Because of the fraudulence and misconduct of Diggins and Free State, the founders considered it essential to demonstrate to NNELS' students, as early as possible, that the Regents considered NNELS an honest and competent institution. This was important for getting and keeping students. Students and potential students had to be shown that NNELS would not be a rerun of the experience at Free State.

But that fundamental reason was not the only reason for the unusual step of requesting a Regents' inspection of NNELS in its first semester. It was known that Free State had requested a Regents' inspection in the fall of 1988. In the competition for students, it would be disastrous for NNELS if Free State were to be approved by the Board of Regents (however unlikely that might seem), while NNELS was not yet even a candidate for Board approval. Not only would this be disastrous in the competition for students, but there was more than a little feeling being bruited about that the Regents would approve only one law school in the geographic area. True, the Regents' rules had no provision limiting the number of schools in an area, and Wisner denied that approval of one of the two schools would mean disapproval of the other. On the other hand, financial viability was one of the Regents' criteria, and it was entirely possible that the geographic area would not provide enough students to financially support two schools, so that approval of one by the Regents would inevitably lead to disapproval of the other. That was certainly the claim of politicians in Lodge who, near the end of 1988, hooked up with the crooked Diggins.

There was yet one other reason why the founders had requested an early inspection. In the late spring of 1988, a law school located at the other end of the state, the John Marshall Harlan School of Law, had sought Regents' approval. John Marshall Harlan was a weak institution but had nonetheless received a NNELS' First Inspection (barely) favorable inspection report. When this school and its report came before the Board of Regents in June 1988, several of the Regents had displayed both appalling ignorance and anti-law school bias. One had said the school should be rejected because there were too many lawyers. However true this was and is with regard to lawyers for corporations and the wealthy, it was and is grossly untrue about lawyers for the middle class and the poor. For the latter groups there is a paucity of lawyers. But the particular Regent was blind to this fact, did not care about it when it was pointed out to her, and there were some indications that she might not have been alone.

Also, two other Regents asked whether Regents' approval of the school would enable its graduates to take bar exams in every state in the country. They were ignorant of the limited effect of Regents' approval and of the stranglehold over the profession possessed by the U.S. Bar Association. When the difference in impact between Regents' approval and USBA approval was explained to these Regents, they asked whether the Board of Regents and the USBA used the same standards for law schools. When told no, they said that perhaps the Board should adopt standards more like the USBA's. They told the Board's administrative staff, headed by Chancellor Frederick Gent, to look into this, and Gent said the staff would. Whether Gent was serious or was merely fobbing off these Board members was something NNELS did not know. But just in case he
was serious, NNELS' leadership considered it desirable for the school to be judged as early as possible, while the Regents' existing rules would definitely still be in effect. For those rules were quite satisfactory to ensure competent academic institutions, whereas the USBA's rules were designed to eliminate even competent institutions unless they had millions of dollars and used high cost techniques. The USBA's rules were thus antagonistic to NNELS' aims, modus operandi, and very existence. They were also contrary to sense because they not only harmed competent schools, but simultaneously allowed poor quality schools to exist so long as they had lots of money and followed high cost techniques. As is often, even pervasively, true in modern America, wealth did not necessarily mean quality, and quality did not necessarily mean wealth.

* * * * *

The biggest task in preparing for the Regents' inspection was preparation of NNELS' self study, which Wolfe wrote. And the most important task in preparing the self study was writing the discussion of why the school was justified in not using the LSAT in its admissions process, either at the inception of the school or later.

In 1988 the LSAT was still regarded almost everywhere as a vital, desirable tool of law school admissions. Like the SAT, the LSAT had been begun in an effort to democratize admissions. After World War II, with the availability of extensive financial assistance under the GI Bill, Ivy League law schools were flooded with applications. Many of the applicants had gone to undergraduate schools from which the Harvards and Yales and Columbias had never before had law school applicants--many had gone to the Tennessees and Kentuckies and Wyomings of the world. Before the War, when applicants came from a relatively small group of eastern schools, the Ivy League law schools knew what the quality of education was at each of their feeder colleges, and knew how to rank a B average at, say, Amherst, against a B plus average at, say, Wesleyan. Beyond this, Ivy League law schools pretty much had open admissions anyway--whoever applied was admitted. But after the War, when applications vastly exceeded available seats, and many applicants came from colleges with which the Ivies had little experience, the law schools were in a quandary when selecting students. In judging among applicants, for example, what did a B average at Amherst mean against an A- average at the University of Tennessee, a school with which the Ivies lacked experience?

To create what was thought a fair comparison of applicants, first Harvard and Columbia, and then a special organization, sponsored the LSAT, which would be a common measure for all applicants and was therefore thought to democratize the admissions process. And, truth be told, the LSAT did democratize admissions for a decade or so, as it enabled graduates of midwestern, southern, and other "non-elite" colleges to gain admission to "elite" law schools whose graduates had
vastly disproportionate influence over law, industry, government, and politics in this country--and made lots of money too.

The LSAT caught on like wildfire in law schools. And by the late 1950s, it was being used not just as a democratic admissions tool, but for bragging rights. That is, schools would claim they were better, and more "elite," than other schools because they had higher average LSAT scores than the other schools.

Used as it was for bragging rights--used to establish a rank order of elitism in a profession in which elitism is a pervasive disease--the LSAT became the major criterion by which law schools picked students. Undergraduate grades counted too but were usually distinctly secondary. Everything else was irrelevant in selecting applicants. Graduate work and degrees, even the possession of one or even two doctorates, were irrelevant. Though writing is crucial for a lawyer, the ability to write was irrelevant. Though fluency is crucial for lawyers, it too was irrelevant. Though good moral character is essential for attorneys, it likewise was irrelevant. Though creativity, diligence, and the ability to work with others are necessary for lawyers, they too were irrelevant. All that counted were, predominantly, LSAT scores, and, to a lesser extent, often a
much lesser extent, undergraduate grades.

By the late 1960s and early 1970s, the LSAT, which had been begun about 20 years before in an effort to democratize law school admissions, had become an elitist tool for making law school admissions
undemocratic in a most brutal way. People who came from the working class, members of minority groups such as African Americans, and mid-life persons who wanted to change careers, almost invariably did worse, often far worse, than well-off or comparatively well-off young whites did on the LSAT. The reasons for this were argued up and down, backwards and forwards, with claims being made regarding the effect of prior schooling that was not up to the highest standards, the ability of affluent people to take expensive courses that trained them in how to take "high stakes" examinations like the LSAT (and the SAT), different styles of learning, psychological defeatism that leads to actual defeat, and what not. Whatever the reason or reasons, the effect was plain, and the consequence was clear: Working-class people, blacks, and mid-life persons were kept out of law schools. They were kept out even though their undergraduate grade point averages were equal to those of white students who were admitted. They were kept out even though, when some managed to get in, as under affirmative action programs, they did fine in law school and went on to successful legal careers. They were kept out to such an extent that the law schools, under the lash of the U.S. Bar Association, had to launch affirmative action programs in order to allow in some African Americans, who otherwise would have been excluded because of their LSAT scores. There were, of course, no affirmative action programs for working-class people or mid-life persons, so they continued to be kept out.

The law school world, however, would not admit that the LSAT was having this exclusionary effect. Nor would it admit the corollary that there would have been no need for affirmative action in order to enroll African Americans if the schools had not given the LSAT predominant weight in admissions, but had instead used a well rounded or "holistic" admissions process in which the LSAT played a minor (if any) role. There were several reasons why these points could not be admitted. Preeminently, the law schools were tied to elitism, and the LSAT had become its measure. God forbid that a school should have lower LSAT scores than its competitors. This would be a mark of Cain. So predominant was the elitist view that the organization which owned and sponsored the LSAT--the Law School Admissions Council, or LSAC--had no trouble persuading legal academics that LSAT scores were the measure of worth. To do this the LSAC used incomprehensible psychometrical analyses and ratios allegedly proving correlations between LSAT scores and first year law school grades. That
overall law school grades over three years often negated these correlations, that people with lesser grades in school often became top notch practicing lawyers and competent judges, and that grades failed to measure a host of personal factors (diligence, honesty, creativity) needed by lawyers--all this could make no impact on the elitist mindset.

Then, too, using the LSAT as the predominant factor in law school admissions made the admissions process easier and
much less expensive (as was also true of the SAT in the undergraduate admissions process). There was no need for large numbers of admissions office personnel to carefully read, scrutinize, and rank applications. An admissions office could have only a small number of personnel whose job was merely to rank applicants by the numbers--by their LSAT scores, or by those scores combined with lesser-weighted undergraduate grades.

There was yet another reason, which constituted financial corruption. The special organization which sponsored the LSATC the LSAC--made a ton of money from the test and ancillary matters. Run by law professors and law deans, the LSAC used its many millions of dollars in annual revenues to provide scores, even hundreds, of deans and professors with delicious perks like all-expense-paid trips to conferences in such places as Jackson Hole, Kiowah Island, Sarasota, Nantucket, etc. The academics came cheap--they were people who, as one of them once said, could be bought for a few bottles of wine. And, in addition to this, the deans and professors who were active in the LSAC infiltrated, and to a major extent took over, the accrediting arm of the U.S. Bar Association. From this fortress they imposed the LSAT on all their vassal law schools, while simultaneously engaging in more
de facto bribery by means of yet more all-expense-paid trips to the great watering holes of America and even the world (e.g., London, Paris, Rome, even the Fiji Islands).

So, for all these reasons, the law school world could not admit that the LSAT caused a problem, or that it was the LSAT which made affirmative action necessary in law schools (just like the general academic world could not admit that it was the SAT which made affirmative action necessary in colleges). The law school and general academic worlds could not admit these things even in 2003, 15 years after NNELS began, when the LSAT had come under extensive criticism, significantly due to the efforts of NNELS, and when the SAT had come under similar criticisms. When the University of Michigan undergraduate and law school affirmative action cases came before the Supreme Court in 2003, there were numerous briefs of parties and over 60
amicus curiae, or "friend of the court," briefs. Yet as far as NNELS knew, only one brief, its own amicus brief, told the Court pertinent truths. Only NNELS' brief told it that it was the use of high stakes tests like the LSAT which created a need for affirmative action; that if one got rid of those tests and instead used a comprehensive, or "holistic," admissions process, there would be plenty of African Americans (and working class people and mid-life people) in colleges and universities; that the tests had become vehicles of elitism and of doing admissions on the cheap; and that, so long as these high stakes tests continued to be the summum bonum of admissions, there would never be enough blacks in academic institutions regardless of affirmative action, which was a mere band aid. The other, non-NNELS briefs filed by academic bodies simply supported the band aid.

When the Supreme Court issued its decisions, it was a striking and
very discouraging fact that the only two Justices who echoed NNELS' position--whether because they or their clerks read and agreed with NNELS' brief or (probably more likely) for other reasons entirely--were the two most reactionary members of the Court, Antonin Scalia and Clarence Thomas, who are no friends of liberal values, civil rights, or education for minorities NNELS' (notwithstanding that Thomas himself is black). The justices who supposedly were on the side of providing education to minorities--the liberals and the conservative-but-swing justices--paid no attention to the fact that "high stakes" tests like the LSAT created the problem of exclusion in the first place and that the affirmative action for which they were voting was almost certain not to solve the problem of exclusion, just as it had not solved it in the previous 30 years.

This long exclusion of minorities, working-class people and mid-life persons can hardly be criticized sufficiently, since it has had drastically terrible societal effects. Historically--in the 19th century, and in the first 50 or 60 years of the 20th--the law was a path of social mobility. Abraham Lincoln is only the most famous of scores of thousands or hundreds of thousands or even millions of poor boys who took this path. It was a particularly important path because, for good or for ill, lawyers disproportionately ran the country. Lawyers still disproportionately run it. At the turn of the 21st century, when lawyers were less than one-half of one percent of the population, they were 53 percent of U.S. Senators, 46 percent of governors, 37 percent of federal Representatives, and 17 percent of state legislators. They are 100 percent of judges (except for some minor traffic court judges), 100 percent of prosecutors (except for some minor police functionaries), and untold percentages of city officials, commissioners, and administrative boards and staff. They disproportionately are presidents of universities. Hosts of them are active in real estate, investment banking, commercial banking, and corporations. The law thus has been and remains a major path to economic and societal advancement, but it is a path that for decades now has largely been blocked to minorities, working-class people, and mid-life individuals. The unhappy societal results of blocking so many from so much can hardly even be guessed at. This immeasurably huge and terrible societal result is largely a product of the mania for the LSAT.

* * * * *

It was this mania that Wolfe had to contend with when he wrote NNELS' self study. True, the Regents' rules did not require use of the LSAT. They required only a "suitable admissions process designed to insure that persons who are admitted are capable of completing the program." The problem was that, given the mania for the LSAT, it was possible that the Regents' inspectors might think that an admissions process which did not use the LSAT could not be "suitable" or "designed to insure" that admittees "are capable of completing the program." The inspectors, after all, would mainly be deans and professors from USBA schools who had been propagandized, brainwashed, for decades into thinking that every law school had to use the LSAT.

Faced with this problem, Wolfe did two things. He first explained the thorough admissions process that NNELS used. Unlike USBA schools, which had only a narrow gauged process, NNELS looked at every pertinent aspect of a person's life and career. NNELS examined his undergraduate grade point average, the kinds of courses he had done well or poorly in (doing well in tough courses like philosophy, economics, or history was looked on with favor), whether the person's academic performance had improved over time, and his graduate school record, if any. NNELS looked to see whether the person had held one or more jobs during his school days, and whether jobs held after college seemed to be intellectually demanding. NNELS interviewed every applicant to try to learn why he wanted to be a lawyer and whether he was committed to doing the amount of work that a rigorous law school required. (Medical schools interviewed their candidates for admission to learn about them as persons, but law schools, uniformly wishing to avoid the work involved, falsely claimed that interviews should not be held lest they open the door to the exercise of prejudice--as if seeing a name like Goldberg on an application, without interviewing the candidate, might lead an admissions officer to believe the applicant was Episcopalian, or as if the schools were not
already discriminating by using an admissions process that kept out most blacks, even ones who could succeed in law school and in the practice of law.) NNELS also required each applicant to take a writing test which it devised--and which was graded by its professors--to determine if an applicant had writing ability or at least appeared to be "trainable." The creation and use of a writing test was as unique to NNELS in the law school world as was its practice of having interviews.

In addition to explaining the deliberately labor intensive system that NNELS used in the all important admissions process, Wolfe also discussed weaknesses in the LSA--which the USBA law schools used to
avoid labor intensiveness when engaged in the socially critical job of selecting law students. Here Wolfe set forth some of the criticisms I've discussed earlier; others of them hadn't been thought of yet, not even by NNELS, since the halo surrounding the LSAT was only beginning to be broken down and criticism of that test was still in its infancy. It was Wolfe's hope, and that of his colleagues, that the thoroughness of NNELS' own process, plus the defects and exclusionary impact of the LSAT, would persuade the Regents' inspection team that use of the LSAT was unnecessary, and for a school serving NNELS' clientele, positively undesirable.

* * * * *

Because the inspection team would want to talk extensively to members of the full and part-time faculty, NNELS held meetings of these groups to acquaint them with the kinds of questions the team members were likely to ask and the kinds of information they would be seeking. It was at one such meeting with the adjunct faculty that a part-timer made a comment that pulled Wolfe up short. It was a comment that was simple, yet it destroyed a shibboleth of the legal academy.

Wolfe was explaining to the adjuncts that, because law school professors and deans do not know, do not care to know, and cannot impart the skills of practice, they justify themselves by saying that their only job is to teach students to "think like a lawyer." Using this rationale to support a claimed need for large numbers of full-time faculty instead of a small full-time faculty with a large number of adjuncts, they profess concern that adjuncts merely relate war stories to students--merely tell students of their experiences in practice--instead of teaching them to "think like a lawyer." So, explained Wolfe, the members of the inspection team, who would be full-time legal academics, would quiz NNELS' adjunct faculty to determine whether the adjuncts were teaching the students to "think like a lawyer."

At that point an adjunct who had a heavy litigation practice, Nolan Levine, raised his hand and asked, "Just what do they think we do all day? Thinking like a lawyer is how we make our living."

Bang! With one short, simple comment, Levine had exploded the false, self justifying conceit used by full-time academics to justify themselves at the expense of adjunct professors and to limit the number of adjuncts.

* * * * *

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