FIRST-GENERATION ISSUES:
ACCESS TO LAW SCHOOL
Lee E. Teitelbaum
University of Utah

INTRODUCTION

The work of this Commission was centrally concerned with "second-generation" issues: the reception by law schools of students and faculty who belong to groups that have traditionally been excluded from legal education. It should not, however, be assumed that "first-generation" issues -- those of access to enrollment and employment in law schools -- are entirely behind us. On the contrary, the following summary of data regarding access to law schools reveals that the histories of inclusion in law school life are not identical for all of these groups and that the situations of students and faculty from these groups vary dramatically from school to school and region to region. The following information may also provide a context for second-generation issues. The data reported below reveal, for example, differences in ages and fields of work between faculty drawn from traditional groups and their colleagues from traditionally excluded groups, which may reflect differences in the kinds of teaching and research each conducts as well as relative power relationships. These data also indicate wide variations among schools in the ratios of women faculty and women students and ratios of faculty of color and students of color that may profoundly affect the experiences of both faculty and students.

Most of the data collected about law schools is aggregate, and most discussions about what "law schools" have or have not done implicitly assume some global idea of law schools -- perhaps an "average" law school. Aggregate data and general discussions do provide important indicia of overall change. However, they also mask factors that can powerfully affect judgments about questions such as what counts as "success" in recruiting non-traditional students and faculty as well as important differences among law schools. What is important about our data on access to legal education is often not overall numbers or rates of participation in legal education, but the wide range of law school settings and the range of "costs" associated with those settings.

And law schools do vary greatly. Some law schools have more than 1500 students and some have fewer than 300. Some have more than 60 faculty and some fewer than 15. Overall faculty-student ratios differ dramatically, and those variations cross most other lines. One "prestige" law school has a faculty-student ratio of 1:13; others have ratios of 1:25 or worse. Some schools are located in cities and states where people of color exceed 50% of the population; others are situated in regions where more than 90% of the population is Caucasian. Some schools in areas with heavy concentrations of people of color have enrolled large numbers of students of color while others have not. Some schools in areas with smaller concentrations have enrollments by students of color that are greater than the state distribution while others have not. Some schools are private and very expensive; others are public with tuitions that are minimal by comparison.

All of these factors potentially influence the situations of faculty and students, and raise questions about the assessment of first-generation issues. Schools with large faculties frequently have greater flexibility in hiring decisions than do schools with smaller faculties, for whom particular curricular coverage may seem crucial. Schools (usually private) that can draw on substantial private wealth may be able to increase their faculty size through gifts of chairs to attract especially promising candidates; public schools with less access to large gifts are limited to the positions authorized by the legislature and are compelled to forego recruitment opportunities that a wealthier school could pursue. This circumstance may affect perceived ability to promote diversity. However, that perception of a narrower pool from which to draw may in turn reflect reliance on traditional standards for determining the quality and likely contributions of candidates for teaching positions.

A number of other variations may matter. In some instances, perhaps ironically, it seems that nothing fails like success. A number of schools, particularly those that are large and on the coasts, have enrolled large numbers of women and students of color. They may also have enrolled substantial numbers of students with less obvious characteristics, including learning disabilities and atypical sexual orientation. However, success in enrolling a diverse student body often produces poor ratios of women or students of color to women faculty or faculty of color. These ratios, in turn, have important implications for the situations of both students and faculty. To the extent that women students and students of color seek access to faculty sharing their characteristics, they may feel frustrated by the absolutely small number of faculty to whom they can go. And to the extent that women faculty and faculty of color expect, or are expected, to provide support for women students and students of color, their time and energy will be heavily occupied by that responsibility. This will be true even when the women and teachers of color on the faculty are relatively numerous, if it is also true that the number of women students and students of color is absolutely great.

It is true, of course, that some schools have more favorable ratios of these kinds. However, those favorable ratios often reflect far more limited enrollments of students of color (although rarely of women), and typically reflect a smaller faculty-student ratio than is available at large (and often prestigious) law schools. The questions of access and relative success, then, are highly complicated, and the following data should be read with that caveat.

I. STUDENTS

A. Gender

The number of women who apply to and enroll in ABA-approved law schools has increased steadily and significantly since the late 1960’s. In 1965-66, women made up 2,374 of 56,510 J.D. students (4.2%). By 1971-72, that proportion had more than doubled: 8567 of 91,225 law students (9.4%) were women. Over the last fifteen years, the percentages have continued to increase. In 1978-79, the proportion of women reached nearly 31% and, ten years later, women comprised 42.2% of all law students. In 1993-94, women made up 43.1% of the law school population (55,134 of 127,802 students). The diminishing rate of increase is to be expected as the proportion of women students approaches 50%.

As might be expected in view of the high overall participation of women in legal education, the percentages of women students are relatively consistent across schools. Women make up between 35% and 50% of the student bodies in all but nine schools. The attrition rate for women is somewhat lower than that for men. Total attrition for men was 4.4% and for women 4.1% in 1992-93.

However, to the extent that availability of women faculty bears on the experience of women in legal education, substantial differences among law schools still exist. The average ratio between all full-time faculty and students is 1:23, nationally. The overall average ratio for women faculty to women students is higher: 1:34.

As noted in the Introduction, this average masks considerable variation among law schools. The ABA Law School Survey published in the Fall of 1993, which includes a calculation of the ratio of women faculty to women students for all law schools, reveals substantial differences in ratios among law schools. About 10% of the schools (16) had ratios equal to or less than 1:20, while ten schools (6%) had ratios greater than 1:70, ranging up to 1:94.

B. Students of Color

1. Overall

The opening of opportunities for people of color began more recently. The 1993 Review of Legal Education presents data from 1977-78 through the last academic year.

Excluding the Puerto Rican law schools, people of color combined made up 9952 of 114,514 law students (8.7%) in 1978-79. In 1983-84, this proportion had increased slightly to 9.9% (11,866 of 119,481). Five years later, enrollment by students of color had increased to 14,295 and made up 12.0% of the law student population. In 1993-94, participation by students of color stood at 18.1% (22,799 of 126,268).³⁷

African Americans make up the largest sub-group: 9156 of the 22,799 total enrollment by students of color (40.2%) in 1993-94. African Americans comprise 7.3% of all law school enrollments outside of Puerto Rico in the most recent year (slightly more than one-half of their percentage in the total population).

The proportion of African-American students to total people of color in law schools has declined from almost 60% in 1975 to the current 40.2%, reflecting increases in Hispanic and Asian enrollments during that period.

Although comparisons with national population data are of limited value because people of color differ in their rates of participation and success at earlier stages of the educational process, it is worth noting that the law school participation rates of African-Americans, Chicanos, and Puerto Ricans are substantially smaller than their representations in the population as a whole.³⁸ Attrition rates for students of color are somewhat higher than average. The total 1992-93 attrition rate for students of color was 5.3%, compared to the overall student attrition rate of 4.3%. This rate may be lower than many expect. While that is reason for satisfaction, there is still cause for concern.

For one thing, students of color remain disproportionately likely to leave law school. Equally important, they leave schools for different reasons than do Caucasian students. Fifty-one percent of the men and 52.8% of the women of color who leave school do so for academic reasons. By contrast, only about 30% of men and 29% of women overall leave for this reason. If students of color are subtracted from the overall figure, the percentage of law student attrition due to academic reasons declines to 24.2% for men and 20.2% for women. On the other hand, Caucasian students are more likely to leave their original schools to transfer to another school.

2. Differences among schools

Overall percentages again fail to capture substantial differences among schools. The experiences of students of color may be affected by their absolute numbers in a school, by their numbers relative to other students, and by the availability of teachers of color in the school they attend.

a. Absolute numbers. In a few schools (eight, in 1993-94), fewer than twenty students of color are enrolled. All of these are small schools, with enrollments lower than 400.

b. Percentages. A number of schools enroll substantially lower than average percentages of students of color. In slightly less than one-quarter of all law schools (41), these students make up less than 10% of the student body and, in 25 of those schools (14.2%), they comprise less than 7.5% of the total enrollment. In some, but by no means all instances, these schools are located in geographical regions with small resident populations of color. Although one might assume that very low enrollments are likely to be found in private (and more expensive) schools, this seems not to be the case, at least at the extreme. The 41 schools with low percentages of enrollment by students of color are fairly evenly divided between public and private support (17 public and 24 private).

c. Faculty-student ratio. The overall faculty-student ratio for people of color is 1:36, nearly the same as that for women faculty and women students. And there are again very substantial differences among schools. Forty schools (28.2%) have ratios of 1:50 or higher, and 14 schools have ratios greater than 1:70. Those with high ratios necessarily have relatively high, and in some cases, very high enrollments by students of color. In addition, nine schools have no teachers of color, creating a ratio of 0. In all but one case, these schools have enrollments of fewer than 40 students of color. The highest ratios of faculty of color to students of color are typically found at schools with the highest enrollments of students of color.

While it may seem likely that schools with few students of color will also lack faculty of color, that is not uniformly the case. Of the 25 schools with enrollments by students of color that were below 7.5% of the total student body, six have no faculty of color and eight have one teacher of color. However, five of those schools with low enrollments by students of color have two faculty of color, four have three, one has four, and one has five. Faculty of color make up a greater proportion of the faculty than students of color make up of student enrollment in eleven of these schools, and their faculty-student ratios are often better than those in schools with high enrollments of students of color (other than schools that historically serve African-American students and the Puerto Rican law schools).

C. Students with Disabilities

Although students with disabilities do not constitute one of the traditional "minority" groups, federal law has provided an impetus for considering their access to law school. Accurate statistics on this group are notoriously difficult to obtain, partly because of the definitional problems associated with the terms disability, handicap, and impairment. The AALS Special Committee on Disability Issues identified approximately 725 students, an average of approximately 5 students at each responding school. On the other hand, a 1987 Department of Education study reported that 8.6% of all law students classified themselves as disabled. On that estimate, more than 10,000 law students (an average of 59 students per law school) are so classified.

These disparities in part reflect different data gathering methods. The Department of Education survey reports self-identification by students while the AALS report is based on law school responses. Students may report disabilities which they do not, for a variety of reasons, disclose to law schools. Relatively minor impairments that the student does not believe require (or believes would not produce) institutional accommodation, for example, would probably appear in the Department survey but not the law school survey.

Gathering and interpreting data are difficult undertakings with respect to disabilities. It is impossible to know how many disabled students are affected by failure to identify a disabling condition, by practices at their undergraduate institutions, and by perceptions generated by students or others concerning the meaning of a disability for purposes of law study or practice.

The Final Report of the AALS Special Committee on Disability Issues recognized that all law schools are required by federal law to have in place a policy against discrimination on the basis of disability or handicap in the admissions process. That same report expressed concern about the level of information available to prelaw advisors regarding accommodations available for the LSAT and within law schools themselves. It also urged transmission of information about the assessment of applicants with disabilities to faculty members serving on admissions committees. In addition, law schools should maintain a barrier-free facility and inform applicants about the accommodations available for disabled students.

D. Sexual Orientation

Sexual orientation has not presented a first-generation issue -- that is, an issue of access to law schools -- because gay or lesbian students, unlike women and people of color, have not been asked to identify themselves at the point of application and, unlike handicapped students, have not been required as a practical matter to disclose that characteristic in order to take the LSAT test or determine the capacity of law schools to accommodate them. It is likely that more students now than previously choose to self-identify, either through lists of activities or through their personal statements. The Association of American Law Schools expressly prohibits discrimination against students by reason of sexual orientation and expects that Admissions Committees will respect that principle.

II. LAW TEACHERS

A. Gender

1. Overall

The first sustained attention to the participation of women in law school teaching occurred during the early 1970s. Both the ABA and the AALS adopted resolutions calling for equality of opportunity and the ABA resolved that "[A]ll law schools should ... make substantial efforts to recruit, hire, and promote women professors."³⁹

Progress over the first five years was very slow. An extensive survey by the American Bar Association indicated that women comprised 9% of full-time law school faculty in 1975-76.⁴⁰ Moreover, that figure in a sense overestimated the participation of women on law school faculties, because a relatively few schools accounted for a disproportionate number of women faculty.

The current level of participation by women indicates both that development has occurred and that more can be expected. In 1991-92, women made up 24% of all full-time law school faculty, 27% in 1992-93, and 29% in 1993-94.⁴¹ In 1993-94, the average number of full-time faculty at the 175 reporting law schools was 32.7 and the average number of full-time women on law school faculties was 9.4.

Perhaps because of the recent increase in appointments of women faculty, they tend to be younger than their male colleagues. The average age of male faculty is now 53 years (and that of white male faculty is 54). The average age of all women faculty, by contrast, is 44 years. Women of color tend to be even younger, averaging 42 years of age.

2. Variations among law schools

Some literature and considerable anecdotal information suggests that the experience and perhaps the success of women in legal education depends on the number and percent of women on a law school faculty. These variables are thought to influence both their comfort and support within the school, and the relative frequency of administrative or service responsibilities. In addition, the ratio of women faculty to women students is assumed to affect the amount of time devoted to counseling and advising students.

a. Numbers of women. With respect to absolute numbers, every law school had at least two women faculty members in 1993-94. Four schools had two women faculty, and four schools had three. Fewer than one-fifth (18.3%) had five or fewer faculty, close to one-third (31.4%) had between six and eight women, and about the same number had between 9 and 12 women faculty. One-fifth of the law schools had more than 12 women faculty.

b. Proportions of women. Proportions of women faculty continue to vary somewhat across law schools, but less so than previously. Of the 87 schools below the national average of 29%, three-fourths reported that women made up between 20% and 29% of their faculties. With one exception, the remaining schools reported that women made up between 11% and 19% of their faculties. Following a similar pattern, two-thirds of those above the average had proportions of women faculty between 29% and 38%, and all but one of those with higher proportions fell between 39% and 49%.

c. Women faculty-women student ratio. The overall ratio of women faculty to women students is 1:34, which is higher than the overall faculty-student ratio of 1:23. As the section on women students indicated, that ratio varies substantially from law school to law school. Ratios of 1:74 or greater exist in 5% of American law schools, and ratios of greater than 1:50 are found in approximately 13% of the law schools.

3. Course responsibilities

An issue of recurring interest is whether women are over-represented or under-represented in certain areas of the curriculum. The following tables, based on 1991-92 data supplied by the AALS, list courses taught by relatively high percentages of male faculty (arbitrarily defined as greater than 85%) and of female faculty (defined as equal to or greater than 35%). Specialized courses offered at relatively few schools are not included.

Courses with High Percentage of Male Teachers

Courses with High Percentage of Women Teachers

This is a familiar pattern. A study by Donna Fossum in 1980,⁴² based on 1975-76 data, found that women were under-represented in some business-related areas (corporations, securities, business organizations, and antitrust) but not in commercial law or contracts. On the other hand, women were likely to teach family law and legal research, which remains the case.

It is also worth observing that, even in 1975, male and female law teachers were involved in similar proportions across the great part of the curriculum.⁴³ This remains generally the case.

B. Teachers of Color

1. Overall

In 1993-94, there were 672 reported teachers of color in American law schools, comprising 11.8% of all faculty. These figures may, in one sense, overstate the participation of teachers of color. Of these 672, almost a fifth teach either at schools historically serving African American students or in one of the three Puerto Rican law schools. Excluding these two groups of law schools, 575 (10.3%) of the full-time faculty in 1993-94 were teachers of color. The average for the 170 reporting schools (again excluding Puerto Rican law schools and those historically serving African-American students) is 3.4 faculty of color per school.

Of the entire population of teachers of color, almost sixty percent (59.3%) of the teachers are African American (403 of 680). There are approximately 70 Puerto Ricans and about 60 other Hispanic. The Asian law teacher group has increased to 82. Mexican Americans (50) and Native American (19) have the smallest presence among full-time faculty. Sixty-one percent of the teachers of color are men. Again excluding the Puerto Rican and historically black law schools, women of color made up 16.3% of all women, while men of color made up 10.0% of all men.

While first-generation issues remain, employment of faculty of color has increased over the last six years. The 1988 AALS Report of the Special Committee on Recruitment and Retention of Minority Law Teachers indicated that, in 1986-87, 30% of all law schools had no teachers of color and another 34% listed only one teacher of color. In 1993-94, the percentage of law schools with no teachers of color declined to 5% (9 schools) and those with only one teacher of color to 12% (21 schools). An additional 39 schools (22%) had two full-time faculty of color in 1993-94. Accordingly, while fully two-thirds of law schools claimed one or fewer faculty of color in 1986-87, sixty percent of all ABA law schools had three or more faculty of color in 1993-94.

As with women, faculty of color tend to be younger than white faculty generally and white male faculty particularly. Looking at full-time faculty listed in the 1994-95 Directory of Law Teachers, male teachers of color average 47 years of age and women 42 years of age. We have already noted that white male faculty are, on the average, 54 years old and all faculty average 51 years.

2. Variations among law schools

a. Numbers. Law schools overall average three teachers of color. About 22% of law schools in fact had exactly three such teachers, and 39% had four or more faculty of color.

b. Percentages of faculty of color. The plurality of law schools (43.4%) had more than 10% faculty of color. Only about one-fifth of the law school faculties included less than 10% representation of teachers of color, and in eight schools (other than the Puerto Rican and historically black schools) teachers of color accounted for more than 20% of the faculty.

c. Faculty-student ratio. As we have seen, faculty-student ratios for persons of color, which may bear on demands on faculty time, resemble those for women. There are, however, a number of schools with very unfavorable ratios of faculty of color to students of color. Moreover, when (as is typical) these schools have high enrollments of students of color, the number of students per faculty is also very high, aggravating the problem of student demand.

d. Course responsibilities. As with women faculty, over- or under-representation in curricular offerings is a recurring question. The following tables indicate courses with relatively high concentrations (equal to or more than 15% of all courses) of teachers of color and those with relatively low concentrations (equal to or less than 5%).

Relatively High Participation

Relatively Low Participation

Areas of high participation include the perhaps predictable civil rights courses (other than Women and Law), including international aspects. Areas of low participation include a number of natural resources courses and estate planning, perhaps indicating either areas of experience prior to teaching, interest, or both.

C. Teachers with Disabilities

The 1989-90 AALS Special Committee Study identified 86 faculty members as disabled. Disabilities included hearing, visual, mobility, and health impairments, learning, mental, and speech disabilities, substance addiction and multiple handicaps. The Committee directed attention to the lack of assistance available to disabled faculty at the AALS Faculty Recruitment Conferences, without recommending any specific solution. The Committee also considered whether disability should be regarded as an affirmative action category, with a majority concluding that such treatment for disabled candidates was not a priority.

D. Sexual Orientation

The AALS expressly prohibits member law schools from discriminating against candidates for faculty positions on the grounds of their sexual orientation. This characteristic will be known only to the extent that candidates choose to reveal it through their resumes or in interviews, or it is known to or disclosed by others.