The Higher Education Act of 1965 defines an “HBCU” as “any historically black college or university that was established prior to 1964, whose principal mission was, and is, the education of black Americans.” Out of 105 current HBCUs, five of them operate law schools: Howard University, Texas Southern University, Southern University, Florida A&M University, and North Carolina Central University. The University of the District of Columbia also enrolls a predominantly black student body, and is home to a law school, but it is not considered an official HBCU by the Higher Education Act of 1965 because it was formed after 1964.
These schools purport to fulfill a noble mission: opening the doors to the legal profession once shut by generations of racial oppression. They offer not only a distinctive purpose in admissions but also a distinctive experience for their students and faculty. Providing access to legal education to historically — and often contemporarily — disenfranchised black men and women is a laudable goal.
Do you know what else is a laudable goal? Getting those same men and women to pass the bar exam so that they can actually practice law. And there’s the rub….
The ABA, which is holding its annual meeting in San Francisco this week, sets the standards for law school accreditation. The 2012-2013 ABA standards require that schools meet at least one of the following tests for minimum bar passage rates:
1) That for students who graduated from the law school within the ﬁve most recently completed calendar years:
(a) 75 percent or more of these graduates who sat for the bar passed a bar examination, or
(b) in at least three of these calendar years, 75 percent of the students graduating in those years and sitting for the bar have passed a bar examination.
[ . . . ]
2) That in three or more of the ﬁve most recently completed calendar years, the school’s annual ﬁrst-time bar passage rate in the jurisdictions reported by the school is no more than 15 points below the average ﬁrst-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in these same jurisdictions.
Here’s a chart of recent stats of the five HBCU law schools’ first-time passage rates in their primary jurisdiction (usually the state where a school is located), as well as the percent of deviation from the state’s average rate. I gathered the numbers from the ABA-LSAC Official Guide to ABA-Approved Law Schools and, where possible, verified with state bar examiners’ websites.
Based on these figures, at least three out of five HBCU law schools could risk their ABA accreditation by failing to comply with these minimum requirements. Only NCCU consistently appears on sure footing. Southern faces frighteningly low pass numbers, well below the state average, but not below 15 points. TSU, Howard, and FAMU all face varying degrees of trouble. UDC, whether officially an HBCU or not, also appears to fall short of ABA minimums.
It’s not simply about the schools’ prestige (or lack thereof) either. Other low-ranked but non-HBCU schools avoid this problem. For example, Campbell University led the seven North Carolina schools in July 2012 with a 94.53% pass rate. Campbell’s law school was unranked until just this year, according to U.S. News. Texas Wesleyan University’s School of Law is unranked by U.S. News, but its graduates passed the July 2012 exam at a 90.07% rate, above the state average.
What happens to an ABA-approved school found out of compliance with these standards? Rule 13(b) of the Rules of Procedure for Approval of Law Schools allows institutions a two-year period wherein an ailing law school can get its act together. Interpretation 301-6 also permits schools to petition for more time if they can present evidence of at least one of eight enumerated mitigating factors.
Some of 301-6(C)’s factors make good common sense. Here’s what’s most germane to HBCUs, though. The ABA’s 301-6(C)(v) allows schools to petition to extend the two-year probation period if the school can show “efforts by the school to provide broader access to legal education.” That sounds like an exception custom-made for schools that have historically served under-represented minorities.
If I were the dean of an HBCU law school, staring down the very real and very alarming prospect of losing my school’s ABA-approved status, thereby squandering decades, if not centuries, of blood, sweat, and tears to create a distinctively African-American bastion of higher learning . . . I surely would cling to 301-6(C)(v). Yes, I would try lots of strategies to increase success when students sit for the bar. But if pedagogical innovation didn’t do the trick, I’d jump at this provision.
Since I’m not the dean of an HBCU law school, I’m of split minds. I’m a proud graduate of Texas Southern’s law school. My school was created by the state of Texas in response to the U.S. Supreme Court’s decision in Sweatt v. Painter, the case that struck down the “separate but equal” doctrine in legal education. I know first-hand the value of HBCU law schools. I know that they are, indeed, special places in which to learn the law, even (especially?) for a white person like me. I love my HBCU, and I want it to continue to serve its historic mission.
Many HBCUs do what seems impossible to mainstream law schools: they take people whose admission profiles make them look like they can’t become lawyers and these HBCUs make most of those people lawyers. In fact, they make many of those folks very good lawyers, whether as solo practitioners or associates of bigger firms. Many of the most valuable attorneys I know are solos, and many of them are graduates of HBCUs. I hang around a lot of current and former Article III clerks — and am one myself — but I wouldn’t let any one of them draft my will or negotiate my divorce.
How do more lenient standards for under-performing HBCUs help to accomplish the mission of those institutions? I fail to see how allowing students of any race to incur loads of non-dischargeable student loan debt without the confidence of bar passage, to say nothing of legal employment, helps. How does allowing a predominantly-black law school to take the tuition dollars of aspiring men and women, only to have a large chunk of them not pass the bar exam, help to bring more black attorneys into the profession? Under-served communities of clients are not served by a surplus of JD-holders without bar cards. Bright young people from disadvantaged backgrounds who dream of pulling themselves to a higher socio-economic status are not served by a surplus of JD-holders without bar cards. Aside from the law schools themselves, who is served?
An uncomfortable truth underlying this situation is this: HBCUs, like most under-performing law schools, could boost their bar passage rates by increasing their admission standards. Doing so almost invariably results in fewer African-American students at these schools. While that may solve the bar-passage problem, it presents another problem: it undermines the original goal of these historically black schools.
So, to put it in terms familiar to the ATL commentariat, what’s MOAR RACEIST: making HBCUs less black, or allowing HBCUs to retain good standing with the ABA while producing fewer graduates who can pass the bar?
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. She has clerked on the U.S. Court of Appeals for the Fifth Circuit and worked as a researcher for multiple projects on the intersection of cognitive science and law, including Baylor College of Medicine’s Initiative on Neuroscience and the Law. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at [email protected]