First Hawaiian SCOTUS Clerk Rises Despite Diving Enrollment

By Llewellyn Hinkes-Jones

Feb. 16 — Justice Sonia Sotomayor recently selected Kamaile Turcan to serve as a law clerk next term, marking the first time a person of Hawaiian descent and the first time a graduate of the University of Hawaii will serve as a law clerk to a justice of the U.S. Supreme Court.

Turcan’s selection comes as law school enrollment figures for native Hawaiians and American Indian/Alaskans have taken a nose dive since 2011 when the American Bar Association instituted stricter demands for data collection .

These changes include collecting more granular employment data from schools and more documentation on tribal affiliation from students to combat box-checking.

Numbers for both Native Hawaiian/Other Pacific Islander and American Indian/Alaskan have seen their total yearly enrollments drop by about 30 percent since 2011. Although law school enrollments have been declining overall, native Hawaiian and American Indian groups have seen the largest drop considering their relatively small enrollment cohort.

Schools that enrolled the highest proportion of native students have seen declining numbers from 2011 to 2015, such as the University of Hawaii, Gonzaga University, Brigham Young University, University of Tulsa, University of Oklahoma, University of California at Berkeley, University of Wisconsin, American University, and Lewis and Clark College.

Schools with a large percentage of minority students—such as Thomas Jefferson School of Law, Atlanta's John Marshall Law School, and Chicago's John Marshall Law School—have also seen their native populations cut in half alongside large declines in overall enrollment.

The decline wasn’t universal. Some schools saw little change, while others, like the University of Montana, saw their native American/Alaskan population go up considerably.

Although, as those populations have declined overall, students identifying as “Two or more races” have climbed dramatically at these schools and nationwide, while other ethnic populations have not changed significantly.

Declining Enrollment Overall

Such changes come as overall numbers for law school applications and enrollments crashed in the last five years following a collapsing legal job market and scandals over law school data fraud.

By 2011, the legal profession had become an “unsustainable bubble” with twice as many student enrollments than available jobs and increasing tuition costs, Steven J. Harper, Northwestern professor and retired partner of Chicago firm Kirkland & Ellis described in his book, “The Lawyer Bubble: A Profession In Crisis.” The overall employment rate for the legal profession was 85 percent, the lowest it had been since 1994.

In 2011, numerous class-action lawsuits were filed against multiple universities over misleading enrollment and employment numbers used to boost enrollment.

At least 27 schools were sued for publishing overly-optimistic employment data for their graduates in ABA reports and the influential U.S. News and World Report’s list of best graduate schools, although some of those cases were eventually dismissed.

In one of the most glaring examples of data fraud, the ABA censured Villanova University's law school for what it termed reprehensible admissions-data fraud over the last 10 years that forced the school to post a statement of censure on the school's website for two years. That same year, both the ABA and U.S. News and World Report changed their standard for data collection to demand finer detail over job placement information and employment status.

Response to Box Checking

In 2011, the same year that the ABA cracked down on misleading employment numbers from law schools, they also changed their standards for ethnic identification to ask for additional documentation of tribal affiliation.

According to the ABA ruling, widespread accusations of box checking precipitated the change. Prospective students were regularly checking boxes on their law school applications to indicate Native American heritage and tribal affiliation, ostensibly for preferential treatment, with no basis of proof.

The ABA called the practice of fraudulent identification “pervasive among law school applicants.”

As evidence that box checking led to inflated numbers, Lawrence Baca, ex-President and National Treasurer of the National Native American Bar Association, points to the discrepancy between the large number of law school graduates self-identifying as American Indian and the proportionally small number of lawyers identified as American Indian. Or what might be called a lawyer-to-law-school-graduate ratio.

According to census data, the number of American Indian lawyers grew by 256 from 1990 to 2000, but ABA-accredited law schools claimed to graduate 2,610 native students over the same period. Although the estimate doesn’t take into account other factors such as lawyer attrition rate and job markets, as a rough estimate it shows only 11 percent of native law school graduates becoming lawyers.

Compared to other ethnicities, the ratio for American Indians is particularly low. It's one-third that of whites and African-Americans (30 percent and 33.9 percent respectively) and one-fifth that of Hispanic and Asian-Americans (56.13 percent and 51.39 percent respectively).

For native Hawaiians, the complete picture is not readily available since their numbers were combined with Asian Americans in previous censuses and ABA statistics. But based on available numbers, a large discrepancy appears there too. Only 20 Hawaiian lawyers were added between 2000 and 2010 even though 154 Hawaiian or Pacific Islander students graduated with a J.D. award in 2011 alone.

More Work to Do

According to Baca, while recent appointments like Turcan and Diane Humetewa as the first American Indian woman to serve as a federal judge, are monumental and ground-breaking, most of the appointments are at the trial judge level—not what he considers higher levels of the judicial system.

But, Baca said the crack-down on box checking by the ABA is a good thing since misrepresentation of Indian heritage “inhibits the admissions of others” by taking away resources meant for legitimate applicants and giving a false impression of diversity to the schools.

To contact the reporter on this story: Llewellyn Hinkes-Jones in Washington at ljones@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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