Last week, the comment period ended for the American Bar Association’s latest brainchild: ABA – the only federally-recognized law school accreditor – proposed changing its standards to drop the law school admissions test requirement.
We’ve previously written about some of the ABA’s recent efforts to promote Critical Race Theory ideology and maintain “race-conscious admissions policies”:
What could possibly have motivated ABA’s latest proposal? Could it be that LSAT scores provide a reasonably objective measure of ability, and employing them makes it obvious when law schools racially discriminate against applicants? Is it possible that ABA is laying the groundwork to let racial discrimination continue underground, if the Supreme Court should rule that racially discriminatory admissions violate the Constitution’s Equal Protection Clause and federal law when it decides the upcoming cases of Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina?
Legal Insurrection Foundation President William A. Jacobson submitted a comment letter to ABA opposing the proposed change. Here are some of his comments:
Understood in the context of ABA’s other recent and proposed standards changes, with the proposed change to Standard 503 the ABA appears to be readying the ground in case the Supreme Court should overrule its decision in Grutter v. Bollinger and hold that discriminatory admissions are legally prohibited. Eliminating objective measures that allow groups to show they are the victims of discrimination would provide cover to conceal the continuation of unlawful discrimination…After all this time, it is certainly fair to expect that the ABA would provide a good reason for proposing such an important change. Unfortunately, the ABA offers no clear rationale for its proposed revision. It says getting rid of the test “eliminates some of the challenges inherent in determining which tests are in fact valid and reliable for law school admissions.” Is the ABA implying that the LSAT (or GRE) is not “valid” or “reliable”? If so, it fails to explain its basis for doing so (let alone its rationale for its recent approval of the GRE). The ABA has long recognized the LSAT as a valid predictor of an applicant’s ability to complete law school successfully. It must have had a reason for doing so. Doing away with the testing requirement surely deserves a clear explanation and convincing substantive justification, neither of which has been provided.Given the timing of the decision and the ABA’s lack of explanation for it, a reasonable conclusion is that the change is related to the ABA’s recent proposed and actual revision of standards regarding law school admissions and so-called diversity, equity, and inclusion education; and to the pending Students for Fair Admissions cases. Providing schools with a way to evade a negative decision in the affirmative action cases is not a legitimate justification for such a testing change.Apparently motivated by a desire to preserve de facto affirmative action in the face of possible negative judicial decisions, a number of universities and K-12 schools have recently stopped requiring admissions tests. The University of California and California State University systems have also both banned the use of testing in admissions. UC tentatively banned the SAT and ACT in 2020, claiming it would find or design a replacement test. Only after California voters had rejected a 2020 ballot measure to restore discriminatory admissions, which have been illegal in the state since 1996, did UC and CSU scrap any admissions test requirement. By not requiring standardized testing, the California university systems can better conceal policies that discriminate in fact.The decisions to eliminate standardized testing are unfortunate, given that admissions tests can help both universities and qualified disadvantaged students. A UC faculty senate report concluded that continued use of standardized tests like the SAT and ACT may actually help boost enrollment of disadvantaged students. The Massachusetts Institute of Technology, another school which had suspended its test score requirement for applications submitted in 2020-21 and 2021-22, reinstated the requirement in March 2022. According to MIT’s Dean of Admissions and Student Financial Services Stuart Schmill, the standardized exams are most helpful for assisting the admissions office to identify socioeconomically disadvantaged students who are well-prepared for MIT’s challenging education, but who haven’t had the opportunity to take advanced coursework.
Read Prof. Jacobson’s full comments here.
A group of law school deans also submitted comments. Rather surprisingly, given the “anti-racist” atmosphere common at so many universities today, the deans opposed eliminating admissions tests. Their basic point was that if the LSAT were dropped, something else (such as grade point average) would take its place, which might be even more unfriendly to disadvantaged applicants, and more subjective.
Although these proposed revisions are well intentioned, we believe that their adoption would be premature and could have effects directly contrary to what is desired.Specifically, we fear that an unintended consequence of removing Standard 503’s requirement that J.D. applicants take a valid and reliable admissions test will be to diminish the diversity of law schools’ incoming classes, by increasing reliance on grade point average and other criteria that are potentially more infused with bias. At the very least, we believe that more data and study on the effects of this precipitous change are needed. There are, moreover, other potential changes that have a greater chance of encouraging innovation with admissions methods that will increase access to law school and the diversity of our profession, without the risk of backsliding that the current proposed revisions present.We start with two premises on which we think there is likely to be widespread agreement. First, standardized tests – including the LSAT – can be useful as one of several criteria by which to assess whether applicants are capable of succeeding in law school and to enhance the diversity of our incoming classes…The second premise is that the improper use of the LSAT or any other standardized test can lead to biased outcomes. Such tests are tools and, in the case of the LSAT, one that can be helpful in predicting whether students are capable of succeeding in law school and bringing in a class that is diverse in multiple dimensions, including race and socioeconomic status. But improperly used, and especially if not employed as part of a holistic admissions process, these tools can also be harmful.We believe that, if the proposed amendment to Standard 503 were adopted in its current form, it likely would be detrimental to law schools’ goals of bringing in diverse classes of students and, ultimately, to the diversity of the legal profession. For if law schools abandon the LSAT (or some other validated test) in their admissions processes, something else will take its place. We do not know what those things will be, but it is quite possible – we think probable – that greater emphasis will be put on GPA, written or verbal recommendations, the reputation of undergraduate institutions, admissions officers’ familiarity with those institutions, or other subjective factors. Will reliance on these other criteria produce more or less racial, socioeconomic, or other forms of bias than exist under current admissions practices? We don’t know for sure, because not enough data or research is available to predict the effects of abandoning the LSAT (or another test) as an admissions factor. But it is distinctly possible – and again, we think probable – that the change will result in greater reliance on factors that are more prone to bias than test scores.Without the LSAT as a factor, law schools may be less willing to take a chance on students who do not perform well on GPA or other metrics because they worked to put themselves through school, had to care for family, or other reasons, but would enhance the diversity of our institutions and ultimately the profession. Students who struggle early in college, which sometimes happens with first generation college students, may have lower initial grades and thus overall lower grade point averages. Test scores may help these students, both in determining which schools they should consider and in gaining admission. Again, the key point is that more study of the impact of this significant change on admissions standards is needed, to avoid potential consequences that have an effect on diversity, equity, and inclusion that is the opposite of what is intended…There are, moreover, alternative ways of encouraging the type of innovation that would enable law schools to improve access and the diversity of our incoming classes. One possibility, by way of example is to expand the flexibility that now exists for law schools to admit some of their students without the LSAT under current Interpretation 503-3. That percentage might be increased from 10% to 20%. The ABA might consider allowing additional categories of students to be admitted without the LSAT, encouraging schools to experiment with other programs that reliably gauge readiness for law school. We applaud efforts to incentivize and adopt other means of evaluating the capacity to perform satisfactorily in law school, especially those that would expand access for students who perform less well on traditional metrics like GPA and LSAT. But the flat elimination of the LSAT or other standardized test as a requirement may have the opposite effect. There will be less reason for experimentation and innovation than currently exists.
The deans’ full comments are available here.
Many other people commented as well. The comment letters are available from ABA’s website.
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