Let’s Take this Unprecedented period of Rapid Change to Consider What Can We Learn from the Delay of Fall On-Campus Interviewing: Further Thoughts on Equity and Inclusion

 

Jennifer S. Bard, Visiting Professor, University of Florida, Levin College of Law

In Tuesday’s post I suggested that we take the opportunity of dramatic, unexpected, and unwanted change delivered to legal education by the arrival of the Covid-19 virus and the need to rapidly revise decades, if not centuries, of conventions regarding grading and ranking that are tailored to the needs of a majority culture representative of the Harvard Law School Class of 1880 for whom it was created.

I also suggested that these historic grading conventions encouraged the persistent lack of diversity in our profession.

Today, I look at the opportunity that the likely delay of Fall (late summer) On-Campus Recruiting provides to evaluate one of the justifications for these grading practices which is the need to support our students’ ability to compete for the most high paying post-graduate jobs: employment at a “Big Law” firm (usually defined as one of about 200 firms employing more than 200 lawyers).  I take as a starting point the foundational point of this post: we don’t have the information we need to make good decisions about the consequences of the curricular conventions common to almost every U.S. law school.

We do know, however, that despite efforts (at varying levels of success) among law schools  to diversify their student bodies, this has had little effect on the diversification of the legal profession.  There is, moreover,  persistent evidence,  that discrimination plays a role in the interviewing practices of Big Law Firms and impacts the careers of those who are hired.  This could be intensified by the Covid-19 related slowdown of the economy.

What if our current  student grading and ranking practices are both 1) not in the best interests of the education of most of our students and 2) are playing an unwitting role in the lack of diversity in the legal profession by over-emphasizing early success?

The  first hint that a nearly universally adopted grading system based on sorting students for the benefit of Big Law firms may not be in anyone’s best interests is the absolute lack of uniformity in the role that Big Law plays in the employment of law students.  Consider, for a moment,  what we would think of a medical treatment that was administered to all patients but developed to help only 20% of patients or a restaurant that served food that would be appealing to only 20% of its customers–not much probably.  Yet despite serious efforts by many smart and caring people, the basic structure of legal education is exactly that.  81% of the roughly 190 (ties play a role in the count) law schools ranked by the otherwise defunct magazine, U.S. News & World Reports, send less than 20% of their graduates to Big Law firms. Only 9 law schools (all within the top 15) had 70% or more of their graduates employed at graduation with big law firms. Stick with this list of numbers, because it may surprise you.

The next 5 law schools had 60% of its students working in Big Law, 7 had 40%, 7 had 30%,  9 had 20%, 2 had 19 %, 4 had 18%, 6 had 17%, 6 had 16%, 5 had 15%, 2 had 14%, 4 had 13%, 2 had 12%, 11 had 11%. 10  had 10% and the rest-80 more law schools,-had less than 10% of their students employed by a Big Law firm at graduation.  Of that 80, thirty had less than 5% and 14 had zero.  Yet despite the vast differences in the likelihood that any student at any class rank will be hired by a Big Law Firm, almost every one of these schools has some form of grading curve and comparative ranking.

What would happen if most law schools took a step back-and just stopped?  What if they developed a grading system best suited to their educational goals of having the most students reach the highest possible level of legal competency?

The cynical answer is that Big Law would simply by-pass them in favor of the few that continued ranking.  But not so fast.  While there’s no basis to say that Big Law is unhappy with the pool they get from this practice, they certainly are aware that their hiring practices are very inefficient, and are giving increasing thought to how they might do better. Perhaps the pyramidal business model of today’s Big Law firm is an  historic accommodation to their hiring methods,  not a desirable outcome.  Also, current hiring methods are not resulting in the kind of diversity that their clients are asking them to achieve.  Indeed, many law firms, notably Holland & Knight, are working hard to increase diversity.

They also probably know how atypical their reliance on grades is among comparable organizations hiring graduate students. Kellogg Business School Professor and Sociologist Lauren Rivera’s book Pedigree recounts her research based on “embedding” herself in the hiring practices of law firms, banks, and consulting firms.  What she finds is not surprising—all three industries are more interested in the prestige of the graduate school than in the actual ability of any individual student.  But only law firms fail to incorporate any kind of competency based evaluation in the admissions process.   At least in part, this is because prestigious business school have long refused to even release grades to employers.  Thus, employers have had to develop an interview process that involves analyzing case studies, behavior based interviewing, and answering technical questions. We see similar retreats from grade based hiring in medical residency programs.

Would the tests that law firms themselves develop be any more equitable than the ones that, cumulatively, make up a GPA?  Maybe not.  But they could be more targeted toward what students learned in law school, rather than what they brought in with them.

So, given this opportunity for a pause in the hiring cycle and a freeze, for many schools, in the first year ranking process we could partner with our university collogues who conduct research in higher education, such as that on the curricular barriers to the success of underrepresented populations in STEM education, to see if what we are doing achieves the results we want.  And if not, to start the process of working with the legal profession to achieve something we both want: a diverse and equitably recruited cohort of lawyers who provide the highest possible quality of representation for their clients.

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