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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

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.

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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Comments

Here’s the ABA leadership:

https://www.aba.com/about-us/leadership

Here are their affirmative action lawyers: not good for lawyering, but rioting:

Lawyers Plead Guilty To Molotov Cocktail Attack On NYPD:
https://gothamist.com/news/lawyers-plead-guilty-molotov-cocktail-attack-nypd-vehicle-during-george-floyd-protests


 
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rabid wombat | May 8, 2022 at 10:21 pm

If you do not like the results, change the rules…

Keep changing the rules, until you get the results you want…

Standards be damned….


 
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MosesZD | May 8, 2022 at 10:35 pm

Bar pass rates are strongly correlated with the quality of the student coming into the institution. And that is measured by the LSAT scores.

It would be foolish for law schools to degrade their standards. After all, why got to a degraded Harvard when it’s no better than some mid-tier law school that’s far cheaper.


     
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    Subotai Bahadur in reply to MosesZD. | May 8, 2022 at 10:50 pm

    Granting your correlation between LSAT’s and bar pass rates, you have missed the main reason to go to a degraded Harvard. If you go to Harvard, you are gaining entry to the lower levels of the American nobility and have a chance to climb higher.

    Subotai Bahadur


       
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      Olinser in reply to Subotai Bahadur. | May 9, 2022 at 12:20 am

      As with all Ivy Leagues. But they’ve already significantly degraded themselves.

      Have a couple buddies in hiring positions. At this point, they actively AVOID anybody with Ivy League degrees, because as one of them put it, ‘what you get is a moderately competent jackass with a massively over-inflated sense of his own worth, demands FAR more money than they could possibly be worth, and couples it with a total inability to work with anybody that doesn’t worship them for going to X University, and because they have zero loyalty to a company they’ll constantly be demanding raises and promotions while being willing to leave at the drop of a hat for a competitor that gives them a slightly better offer’.


     
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    healthguyfsu in reply to MosesZD. | May 9, 2022 at 1:23 am

    Don’t worry…they will just declare the bar exam racist and eliminate it. Why does anyone need to know if their lawyer is any good anyways?


 
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maxmillion | May 9, 2022 at 12:01 am

If it’s such a good thing for everyone and society at large, then we can expect medical schools to eliminate the MCAT too, right?


 
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Olinser | May 9, 2022 at 12:17 am

The ONLY reason to eliminate standardized tests is because you want to discriminate against people that do well on such tests, and don’t want those pesky objective standards to give you away.

They’re sick of having so many Asians acing the tests and suing them for being rejected in favor of affirmative action hires that did significantly worse.


 
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randian | May 9, 2022 at 3:24 am

Can I assume letter grades will be the next to go? Blacks and hispanics get notably and consistently worse grades than whites and asians. That also makes anti-white/asian discrimination obvious, in that one would expect all racial groups to get about the same grades (and distribution thereof) if the students being selected were of approximately equal capability.


 
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Bruce Hayden | May 9, 2022 at 5:03 am

The problem is that law schools are a business that work decently well right now. You go to X instead of Y because it is ranked higher, and has higher LSAT scores. Employers then hire you because you went to X instead of Y. And your employer can charge a lot more for you for similar reasons. Win-win, all around. A functioning, though imperfect, meritocracy.

The reality right now is that law firms also operate on essentially a tiered system. Firm A hires from school X, pays its entry level associates $200k, forcing them to bill them out at $300 an hour. Firm B starts its new associates, from Y school, out at $100k, forcing them to bill them out at $150 an hour. Why should someone hiring an attorney pay firm A for a new associate at $300 an hour, when they can get a partner at firm B for that price? In the end, the important thing Is that the legal work is done well for a decent price. What does firm A tell the prospective client to get their work? That X LS is better than Y LS? How do they know that? With diversity recruiting, and no LSATs, that might not be true. Indeed, firm A may actually hire a marginal diversity admit to X LS, trust them to do some legal work, that a grad from a top school should be expected to do competently, and fail miserably. Once that happens enough times, firm A will likely be removed from the top tier of firms in town, and the partners will be relegated to billing at $400 an hour, and not their accustomed $900 an hour.

Much of law is complex, and in many fields, very complex. The bulk of the US population probably can’t understand the complexity. Graduating lawyers who were admitted w/o LSATs under some sort of diversity admissions program is likely to guarantee that a significant number of incompetent lawyers will be admitted to practice, who won’t be competent to adequately protect their rights.


     
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    tbonesays in reply to Bruce Hayden. | May 9, 2022 at 8:02 pm

    In your scenario I always wonder why firm X doesnt hire a middle aged lawyer from Y instead of a newly minted law school grad. I assume it’s like a social class thing


 
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AnAdultInDiapers | May 9, 2022 at 6:31 am

Redound! A new word for me. Thank you 🙂


 
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Username | May 9, 2022 at 7:15 am

Thank God if they get rid of the LSAT.

I only scored a 31, and was only admitted to one school (actually wait-listed): Fred’s College of Law and Cosmetology in California before it went bankrupt.

I can finally realize my dream of becoming a lawyer when they get rid of that horrid thing. I’ve already been practicing bill-padding and hepping up clients to be outraged at their opposing litigants to keep the money tap flowing.


 
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Jack Klompus | May 9, 2022 at 8:49 am

“I Can’t Believe It’s a Law Firm!”


 
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E Howard Hunt | May 9, 2022 at 9:03 am

Do you read the WSJ? Medical schools have come up with a much cleverer way to promote diversity. It is true genius. Don’t eliminate the MCAT, change it.

Sample question:

One of you homies needs to get his sick off, bad.

What should you do?

A. Get him some scag, but fast, from local connection.

B. Direct him to local rehabilitation center.

C. Give his baby momma some methadone with instructions.

D. Shoot up with him to show you up on what that horse can do.


     
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    Username in reply to E Howard Hunt. | May 9, 2022 at 10:31 am

    His baby mama got a bottle with 40 ounces. Other baby mama – dat hoe Shaniqua – has a bottle with only 16 ounces.

    Question: How many bottles do the baby mamas have?


       
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      E Howard Hunt in reply to Username. | May 9, 2022 at 11:14 am

      Your question is rigged to exclude the very candidates we are trying to promote. Higher math is a vehicle of the white, male power structure. It has as its foundation the idea that a correct answer can be produced by disciplined mentation in accordance with logical rules. This flies in the face of the one true socially acceptable method of producing an answer that makes sense based purely on emotion derived from one’s lived experience. Go back to your cave!


 
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bernie49 | May 9, 2022 at 10:33 am

I am not familiar with the actual content of the LSAT, but if the test has questions that are content valid then I see no rationale to stop using them. Last week I was looking at some old 8th Grade graduation exam questions. In my opinion they are as relevant today as they were in 1912!! However, given test scores on our local 10th Grade (MCAS) tests, it is not clear to me that many would be able to answer the questions their great grandparents answered.
I am afraid that we are dumbing down our expectations as to how critically our students and future lawyers can think.


 
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2smartforlibs | May 9, 2022 at 10:36 am

Quotas and Affirmative Action already did that.


 
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CommoChief | May 9, 2022 at 12:42 pm

Maybe a counter proposal to pair elimination of LSAT with elimination of accreditation would be instructive. For that matter, revert to allowing a person to ‘read the law’ through an apprenticeship as well as the bar exam. If objective standards result in intolerable, unjustifiable and persistantly unequal outcomes, those on the side of eliminating the LSAT surely embrace that position, then they should have zero issue with eliminating virtually all barriers to entry in the legal profession. There now we have achieved the next best thing to equality of outcome; any takers at the ABA?


     
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    tbonesays in reply to CommoChief. | May 9, 2022 at 8:08 pm

    It is not in their interest to inquire if these relics have anything to do with lawyering.

    The LSAT is just a measure of cognitive motor skills, do you read and think very quickly.

    The Bar exam is an exercise in memorization testing your ability to read and recall a body of law that is 200 years obselete.

    2/3 of law school is a waste of time. The schools are full of do nothing courses that might as well be spent on activism.


 
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Mister Logic | May 9, 2022 at 4:20 pm

The legal industry has a problem. There are simply not enough qualified black lawyers for the demand. All of the big companies and insurance companies demand that their law firms hire enough “diverse” candidates and have them work on their files. They choose firms based on the diversity of the firm’s work force. As a result, there is a huge demand for qualified black lawyers. They can command some significant salaries. It’s tough to keep qualified minority candidates because they can find jobs at other law firms that pay enormous sums and steal them away. The law schools turn out very few black lawyers in total, and as with any other demographic, some that come out can’t really cut it in the practice. Thus, the number of capable black lawyers is pretty small. So, what to do? Unfortunately, simply dropping admissions requirements, while it may allow more black applicants in, doesn’t result in more qualified black lawyers out the door.

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