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Data and Diversity: Inclusion Is Real Only When Everybody Is Counted

By Kristin Theis-Álvarez

On Election Night 2020, CNN flashed a graphic that showed the results of its latest exit polls for the presidential election. In it, voters were broken into five racial groups: “White,” “Latino,” “Black,” “Asian,” and “Something Else.” The internet immediately went to work. Between viral memes emerged frustration, then anger. In an election where Indigenous voters played a critical role in battleground states like Arizona, the erasure of Native American (and other) voters took on new significance.

I joined the LSAC Board of Trustees as chair of the Diversity, Equity, and Inclusion Committee before this prime-time display of how data erases people, but not prior to my awareness of the issue. Not only do data collection and reporting challenges impact individuals and institutions, the minutiae of our practices can inadvertently betray our values. Here are some examples:

  • Early in my career, I grappled with the requirements of the Office of Management and Budget’s directive for collecting and reporting applicant race and ethnicity, and the assumptions embedded within this schema (including the move to a two-part question, removing Hispanic as a racial category).
  • Each year, I struggle to explain to trans and nonbinary applicants who have legally changed their names and gender markers why we ask for “sex assigned at birth such as on an original birth certificate” (effectively forcing them to out themselves).
  • Recently, I was called to meet with members of the Middle Eastern and North African Law Student’s Association to listen and respond to their pointed critique of our location of “Middle Eastern” as a subcategory of “White/Caucasian” in the race and ethnicity section of our application. 
  • Each fall, hard at work building an applicant pool, I wonder why I can’t easily do a search for LGBTQIA2+ law school candidates to encourage them to apply.
  • Every October, I witness my racial/ethnic diversity statistics plummet when we submit our report to the ABA wherein any non-Hispanic student who identifies as more than one race must be counted as “Two or More Races,” and any international student is counted only as a “Nonresident Alien.”

These are not merely issues of being “counted.” These data represent power: a candidate’s power to have their experiences and existence seen and reflected, and the power to make fully informed enrollment decisions. These data represent privilege: the privilege of trusting that an institution actually understands you and will treat you with respect.

LSAC — as mediator of the liminal spaces between candidate, applicant, law student, and lawyer — has a critical role to play in leading for bolder, better approaches to collecting and sharing diversity-related data. In early 2020, a “Data and Diversity” work group of the DE&I Committee was convened to inventory LSAC’s identity questions. The central recommendation of the work group was that LSAC proactively convene a panel of experts to review the location, timing, substance, and consistency across candidate-facing race, ethnicity, sexual orientation, and gender identity questions. The Advisory Group on DEI Categories was constituted and met in early 2021. The next phase of this work is to begin implementation within LSAC systems and to share LSAC’s changes with candidates, schools, and partner organizations. We plan to share our work and rationale to engage with and support schools and other legal stakeholders in the development and implementation of data collection and reporting policies and practices. 

Of course, there’s more to be done. We are mindful of the impact changes could have on historical reports and analyses. We are also working to develop an approach for collecting information about candidates with disabilities (or other ways to understand the pipeline to the profession for those individuals). Additionally, we hope to clarify the definition(s) of first-generation status to better inform how we understand diversity, equity, and inclusion throughout the pipeline. We must maintain member schools’ abilities to meet external and institutional data collection and reporting requirements. None of that, however, should stop us from forging ahead. 

Data collection and reporting is not commonly thought of as a place where leadership matters. Yet at a time when law schools frequently talk about becoming antiracist, neither can be overlooked. I’m proud to be a part of LSAC’s efforts to lead in this space. Making changes to our systems of data collection, aggregation, representation, and narrativization can improve the candidate experience and transform our understanding of diversity in the legal profession.

About Kristin Theis-Álvarez 

Dean of Admissions and Financial Aid at the University of California, Berkeley, School of Law
Kristin Theis-Álvarez is the dean of admissions and financial aid at the University of California, Berkeley, School of Law. She graduated with high honors from UC Berkeley, earning her BA in rhetoric and Native American studies. She went on to earn her JD from Stanford University Law School.