Members of law school admissions committees face lots of challenges each year. Can they hit LSAT and GPA targets? What kind of yield can they expect? How can they best allocate discounts? But one of the trickiest questions can be: under what circumstances should they admit an applicant with a criminal record?
This turns out to be a knotty question. Some people might intuitively expect that all such candidates would be rejected. After all, if we conceive of the job of a lawyer as to enforce the law, shouldn't we demand that all applicants be pure as the driven snow? And since law schools want to make sure that all graduates are (or can be) admitted to practice, isn't a school rolling the dice by accepting someone with a conviction?
Of course, there are reasons why per se exclusion is problematic. For me, a key problem is the disparate racial effect of such policies. We know that the criminal justice system captures and convicts a disproportionately high number of African-American drug offenders (vis-a-vis actual rates of use) for example. We can debate why this is – and whether it reflects active racial bias – but disparity remains real. The disparity is problematic not only because it would over-exclude minority applicants; it would also over-include unconvincted white offenders who, as a result of our social structure and policies, will never face this sort of collateral sanction.
There are other reasons to consider ex-offenders. The criminal act may have been truly a one-off, and may offer little predictive evidence of future behavior. It may not be the sort of crime likely to cast doubt on a graduate's skills, honesty, or demeanor. Or it may be long in the past. As a practical matter,, these applicants are usually seen eligibile but high-risk. As a result, the prior record (and subsequent conduct) must be closely scrutinized.
Thus, the case of Marcus Epstein. Epstein, a staffer for race-baiting former GOP Presidential candidate Tom Tancredo, appears to have been initially accepted into the University of Virginia Law School for this fall's entering class. At some point the admissions folks seem to have discovered that Epstein attacked an African-American woman on the street, back in July 2007, while calling her the N-word. He has been convicted of some version of the offense and apparently awaits sentencing. Reports in the last day or so now indicate that UVa has reveresed itself, and that Epstein is not welcome in this fall's class.
Why? It's possible that Epstein didn't disclose his arrest on his application. It's possible that the offense was too recent. It's possible that the school didn't want students of color to feel that the institution was tolerant of his behavior – or simply that it didn't want these students to be fearful of some repeat conduct. It's difficult to know if UVa would ever admit a person who'd been convicted of an act of racial hate. Or maybe the admissions folks were just disgusted. And let's be candid: UVa can easily fill the Epstein seat with a superior candidate.
But I'm guessing that Epstein must have had some mighty fine predictors – i.e., LSAT and GPA numbers. He's got the talent – so he's probably fully capable of writing a mighty fine apology note to the law school of his choice. I'll be very curious to see what, if any, school considers him a risk worth taking this fall. Or maybe this won't be about risk at all. I'm not sure that even the most conservative law school wants the PR that would attend the arrival of Marcus Epstein.
I think it's relevant in Epstein's case that a fair amount of evidence has come out that his racist behavior wasn't an unfortunate one-off case. In addition to some of his work for Tancredo (not by itself anything the law school should care about, of course, but it did contain some press releases that are pretty vile and pretty clearly racist) several people have pointed to some face-book postings that are claimed to be racists. (I can't access them so I don't have an opinion, but the descriptions of them sound pretty bad.) I can well imagine that this sort of repeated bad behavior could add up in such a way that the university just didn't think it was worth it to deal with him.
Dan,
This is your admissions guy speaking from the first floor. For a few obvious reasons, I think Epstein's case, at least on its face, is far beyond any grey area and there are clear grounds for denying admission. Using Matt's terms, vile and racist are not passing marks on the character/fitness exam for law school or the board of examiners.
But your question is an interesting one. Admissions committees struggle all the time with where to draw the character/fitness line. The analysis is two part. One, does the candidate meet our character/fitness standards for admission? Two, to avoid wasting three years of a student's time and money, will the candidate meet the Board of Examiner's standards for admission to the bar?
The first question is manageable. Our biggest frustration is the lack of clear guidelines from the Boards of Examiners regarding their standards. This is also enormously frustrating for law candidates. Returning to Mr. Epstein's case. Suppose a law school admits him, what should he do? Attend law school for three years without knowing if he'll be admitted to a bar?
The answer? I think there needs to be better communication between boards and law admission personnel and between boards and students interested in attending law school. An even better idea, I wonder if Boards could issue opinions that candidates and law school admissions officers could rely on for precedent and guidance. Names and identifying details could be removed to protect confidentiality.
Anyway, that's my two cents.