License to Discriminate? ABA Committee Recommends Eliminating Standardized Testing For Law School Admissions

License to Discriminate? ABA Committee Recommends Eliminating Standardized Testing For Law School Admissions

The American Bar Association through its Council of the Section of Legal Education and Admissions to the Bar (collectively, ABA), which accredits law schools, has embarked post-George Floyd on a remaking of law school education and admissions.

Johanna Markind, Esq. of Legal Insurrection Foundation and I addressed two of the actions — requiring race-focused study and diversity admissions actions — in early February 2022, ABA Forcing Wokeness on Law Schools. In that column we called the ABA’s actions an abuse of its accrediting power, and called on states (and some future Republican federal administration) to strip the ABA of its near-monopoly accrediting power.

Particularly pertinent to this post was our discussion of proposed diversity admissions requirements:

The other problematic proposal concerns Standard 206, regarding diversity. The ABA’s original proposed revision met with so much pushback that ABA delayed moving forward with it. The recently revised proposal (which likely won’t be adopted before August) aims to increase student admissions and faculty-staff hires of members of groups underrepresented in law compared to the U.S. population overall. Although the ABA Council has denied seeking to impose quotas, its effort to guarantee a proportional share of admissions/hires is likely unlawful.

I also participated in a panel discussion on the same topic, Debate: Should American Bar Association Be Stripped Of Its Monopoly Law School Accrediting Power?

To paraphrase Ronald Reagan, there they go again, with a new proposal that would eliminate a requirement of taking a standardized test for law school admission. While superficially neutral on its face, this new proposal needs to be considered in light of the recent ABA actions and the reconsideration of affirmative action by the U.S. Supreme Court next term in cases involving Harvard and UNC. [Legal Insurrection Foundation is filing an Amicus Brief in the case supporting the Asian students, I’ll post it once it’s filed.]

Eliminating standardized testing altogether will provide law schools a license to discriminate, since disparities in standardized testing were a key part of the proof particularly in the Harvard case, where Asian applicants had to achieve much higher test scores to gain admission.

Here is the introduction of the Recommendation from the ABA’s Strategic Review Committee (emphasis added):

The Council, in 2018, approved amendments to Standards 501 and 503 after public Notice and Comment. The most significant change in these amendments was the elimination of Standard 503 and its requirement of a “valid and reliable” admission test. The Council sent these amendments to the ABA House of Delegates (HOD) for concurrence at the HOD’s August 2018 Meeting. Due to considerable and organized opposition to the amendments at the HOD meeting, the resolution containing the amendments to Standards 501 and 503 was withdrawn for further consideration by the Council. Since then, the Council has solicited feedback from interested parties related to the requirement of an admission test in the Standards. In October 2020, a Council Roundtable event featured a table whose participants discussed whether the Standards should continue to require an admission test. In October 2021, the Council publicly released its independent consultant’s report that assessed the ETS study on the predictive value of the GRE for law school applicants. The Council solicited comments on the consultant’s report, receiving eight comments. In November 2021, the Council voted to allow law schools to accept the GRE in addition to the LSAT for law school admissions.

The Strategic Review Committee has undertaken a review of Standards 501 and 503 and now recommends revisions to these Standards.

Below are the Strategic Review Committee’s (SRC) recommended revisions to Standards 501 and 503 for Council approval for Notice and Comment. Among other changes, the SRC is recommending the elimination of the requirement that law schools use a valid and reliable admission test, although law schools of course remain free to require a test if they wish….

Elimination of “a valid and reliable admission test” via proposed changes to Standard 503 means taking the LSAT or GRE no longer would be required.

The ABA Committee explanation for changes to Standard 503 offers no actual explanation why the change is needed:

Standard 503

Explanation: The recommended revisions to Standard 503 eliminate the requirement of a “valid and reliable” admission test for individuals seeking admission as first-year J.D. degree students, thereby making the use of an admission test by law schools optional. While a law school may still choose to use one or more admission tests as part of sound admission practices or policies, the revisions require a law school to identify all tests that it accepts in its admissions policies so that applicants to the law school know which admission tests are accepted. Eliminating the requirement of a “valid and reliable” admission test also eliminates some of the challenges inherent in determining which tests are in fact valid and reliable for law school admissions, although of course law schools must still show that their use of an admission test, should they choose to require one, is consistent with sound admission practices and procedures. Moreover, the SRC notes that as of early 2022, the Council remained the only accreditor among law, medical, dental, pharmacy, business, and architecture school accreditors that required an admission test in its Standards.

TaxProf as usual has a good round-up of coverage of the change.

University of Iowa College of Law Prof. Derek Muller doesn’t think there will be much practical change, What happens if the ABA ends the requirement that law schools have an admissions test? Maybe less than you think:

There are some who may contend that racial minorities and those from socio-economically disadvantaged backgrounds will benefit, as they tend to score lower on standardized tests and bear the brunt of the cost of law schools adhering to standardized testing. That may happen, but I’m somewhat skeptical, with a caveat of some optimism. The LSAT is a good predictor of bar exam success (and of course, a great predictor of law school grades, which are a great predictor of bar exam success), so absent significant bar exam changes, there will remain problems if schools drop standardized testing in favor of metrics less likely to predict success. That said, if schools look for better measures in pipeline programs, things that prospective students from underrepresented communities can do that will improve their law school success, then it very well could redound to the benefit of these applicant pools and potentially improve diversification of the legal profession. But that will occur through alternative efforts that are more likely to predict success, efforts which we’re beginning to see but are hardly widespread.

University of Chicago Law Professor Brian Leiter also sees little change because of U.S. News ranking requirments:

While the ABA has some power, the real power rests with USNews.com:  if they still want LSAT scores, law schools will still use them.  If USNews.com drops the LSAT scores, then the race to get the highest median GPA, regardless of the difficulty of the undergraduate course of study, will accelerate, since that will be the only numerical measure left for student admissions.  That would be a disaster.

Spivey Consulting also expects little practical effect:

Furthermore, this is only a recommendation. There are a series of steps—committee approval, a comment period, a full house vote—before this would actually be finalized. Until it is approved, standardized tests remain a requirement….

Given the combined forces of institutional inertia, desire to comply with Standard 501, and the rankings carrot/stick, it is very possible that a formal change in ABA policy may amount to not too much change by law school admissions offices in practice….

Reuters notes the disaparity in LSAT performance is a background factor:

Others have countered that the dominance of the LSAT hurts efforts to diversify legal education and the legal profession. Studies have shown significant disparity in LSAT scores across racial groups. A 2019 study found the average score for Black LSAT takers was 142, compared to 153 for white and Asian test takers.

I agree that there will be little immediate effect, and even then, competitive pressures via U.S. News and among elite schools will matter. But I wonder why this is being done? The Committee report has no explanation why. Given the lack of explanation, I think the timing is the key.

In light of the ABA push for race-based admission consideration through proposed Rule 206, and the likelihood (but not certainty) that race-based affirmative action will be overturned by SCOTUS next term, it’s not hard to see a motivation for this move. It’s preparing for a post affirmative-action landscape, by eliminating the primary evidence the Asian students in the Harvard case used to show discriminatory admissions treatment — standardized testing scores. As Prof. Glenn Reynolds noted: “Well, Sure, These Tests Make Racial Discrimination Too Obvious and Easy to Prove.”

The sort of “soft” factors that enabled Harvard to discriminate against Jews in the 1920s and 1930s, and against Asians in the 2010s, will be available to law schools, if they so chose.

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