ABA Withdraws Proposed Interpretation 301-6

The United People of Color Caucus (TUPOCC) applauds the American Bar Association (ABA) Section on Legal Education & Admissions to the Bar, which last week recommended the withdrawal of Proposed Interpretation 301-6 for further study until February 2008. "This action affirms the ABA's commitment to holding an open process and sincerely listening to public comments about how the proposed rule would have negatively impacted racial diversity in legal education," said outgoing NLG Student Vice President, Teague Briscoe.

In collaboration with the National Latina/Latino Law Student Association (NLLSA), TUPOCC submitted a letter in opposition to Proposed Interpretation 301-6 to the ABA on May 10, 2007. In its letter, TUPOCC and NLLSA argued that the proposed rule change would have effectively closed the door through which substantial numbers of people of color have achieved legal education and democratic representation in U.S. society's bench and bar.

Proposed Interpretation 301-6 would have required that first time bar exam passage rates reach 70% for ABA accredited schools throughout the country – regardless of the wide variety in state bar passage rates. In turn, schools serving non-traditional law students, including substantial numbers of students racialized as non-White would have likely been adversely affected by the new interpretation because of the well-known correlation between race and bar passage. For example, in its letter critiquing the proposed interpretation, the Thelton E. Henderson Center for Social Justice at the U.C. Berkeley School of Law (Boalt Hall), noted that White and Asian American law graduates pass the bar at rates slightly above the 70% requirement, whereas law graduates racialized as Black, Native American or Latina/o pass slightly below the requirement.

Similarly, in his well-cited study, A Critique Of ABA Proposed Interpretation 301-6 Of Standard Regarding Law School Bar Passage, Professor William Wesley Patton of Whittier Law School predicted that all of the five ABA accredited law schools with the highest African-American enrollment (Howard, Southern, Texas Southern, North Carolina Central, and District of Columbia) would fail to meet the proposed interpretation. William Wesley Patton.

Moreover, while Latinos comprise 12.5% of the national population, Latina/o lawyers make up only 3.7% of all ABA members. In California, a state with a 35% Latino population, Latinos constitute only 3.8% of active bar members. The ABA's proposed rule change would have likely reduced this percentage even further by constricting the enrollment of new Latina/o law students at exactly the moment when the Latina/o community, and all people threatened by the current wave of xenophobia and nativist racism that is rampant in our nation today, need more attorneys who are sensitive to the distinctive sociolegal conditions of communities with high proportions of new immigrants.

"If the ABA adopted proposed Interpretation 301-6, the Latina/o community would have suffered a double hit," said Marc-Tizoc González, former NLLSA attorney general and a staff attorney at the Alameda County Homeless Action Center. He continued, "Not only do people categorized as Hispanic or Latina/o have lower-first time bar passage rates; they also tend to have lower LSAT scores, which are weakly correlated with first time bar passage. Therefore, the proposed seventy percent first time bar passage trigger would have negatively impacted Latinas/os because we—like African Americans, Native Americans, and groups like Pilipinos and Southeast Asians who are within the Asian American coalition yet are obscured by the failure to collect disaggregated data—tend to pass the bar exam on the first time at rates that are below the proposed trigger."

Dozens of law school deans, professors and research centers, along with individual attorneys, specialty bars, and other organizations submitted comment letters, and the Standards Review Committee of the ABA Section on Legal Education & Admissions heard the testimony of fifteen individuals, all critiquing the proposed interpretation during its May 16, 2007 hearing, held in San Francisco, California.

ENDS