Berkeley Law Dean Opposed Dropping LSAT Requirement, Finds Way To Accomplish Same Thing

Berkeley Law Dean Opposed Dropping LSAT Requirement, Finds Way To Accomplish Same Thing

On November 17, 2022, University of California Berkeley School of Law became the third law school (after Yale and Harvard) to announce it would not participate in US News’ law school ratings. That decision seems to have been motivated at least partly by opposition to the weight US News accords to admissions test scores. Oddly, the school’s dean had previously opposed an American Bar Association proposal to discontinue its testing requirement, which itself seems partly motivated by a desire to evade a potential Supreme Court ban on racial discrimination in admissions. California already prohibits such discrimination.

Dean's Message: Berkeley Law will not participate in the US News rankings https://t.co/fNkGWQMWJQ

— UC Berkeley Law (@BerkeleyLaw) November 17, 2022

Berkeley Law Dean Erwin Chemerinsky explained the decision in a letter to the community. Like Yale and Harvard, Berkeley complained that US News’ ratings create ‘perverse incentives.’ These include:

1. The survey counts student debt: “Look[ing] at student loan debt without appropriate context, creating incentives for law schools to admit high-income applicants (and those from high-income/high-wealth families) who can ‘afford to pay,’ and will not take on much student loan debt… We have recently revised [the school’s loan repayment assistance program] to make it even more helpful to our graduates pursuing public interest and public service careers. US News… measur[es] student debt but ignor[es] how schools are helping students who need assistance to repay it.”
2. The survey disincentivizes need-based aid: “Incentiviz[ing]the elimination of need-based aid. We have preserved a need-based aid program because we believe it is the right thing to do, but if we eliminated it we could certainly increase median LSAT scores and GPA by channeling all resources into recruitment of those students.”
3. The survey measures how much schools pay per student: “One of the most pernicious aspects of the US News rankings is its measure of per student expenditures. There is no evidence that this correlates to the quality of the education received. This works to the disadvantage of schools that have lower tuition and therefore lower per student expenditures. US News discounts per student expenditures in some areas of the country by a cost-of-living adjustment that has nothing to do with educational quality.”
4. The survey counts students receiving law school public interest fellowships as not fully employed, and law school graduates pursuing graduate degrees as unemployed: “[W]e provide students a fellowship for a year after graduation to work in a public interest organization. These positions include a salary comparable to an entry-level position in public service or public interest… But US News does not count these students as fully employed… every year some pursue Ph.D. and MBA degrees… these graduates count as “unemployed” in the US News methodology.”

Item number three is a little tough to follow. It seems Berkeley is worried that it won’t stack up well when the amount it spends on students per capita is compared to that of other schools. Chemerinsky offers two justifications for that. First, “This works to the disadvantage of schools that have lower tuition.” That seems to imply UC-Berkeley has comparatively low tuition, but does it? Despite being a state school, the school charges in-state tuition of $56,858 and out-of-state tuition of $62,143. That’s hardly bargain-basement pricing. Besides, state schools receive funding from their states. So why should Berkeley be disadvantaged by a look at how much it spends on its students?

Chemerinsky also complains that US News discounts per student expenditures by a cost-of-living adjustment. Ah, okay. The Bay area isn’t cheap. But none of this seems unreasonable. Why shouldn’t US News adjust expenditures based on cost-of-living?

Maybe UC-Berkeley just doesn’t spend much on its students?

One wonders how much it spends on non-educational expenses like administrative staff?

Pay particular attention to item number two. “[I]f we eliminated [need-based aid] we could certainly increase median LSAT scores and GPA by channeling all resources into recruitment of those students.” In other words, Berkeley Law is giving need-based aid to a substantial number of students with below-par test scores and grade point averages. Chemerinsky’s letter doesn’t identify those students, or explain why the school wants to admit them in the first place. But, given the context, we can make an educated guess.

The context is, the Supreme Court recently heard argument in two cases challenging racially discriminatory policies by which schools demand higher admissions test scores from Asian and white students than from Hispanic and black students. The University of California system filed an amicus brief supporting the universities, in which it complained, “UC’s Race-Neutral Measures Have Been Inadequate to Achieve the Educational Benefits of Diversity.”

The context is, the ABA is considering dropping its requirement that law schools require admissions tests. (The proposed change was approved by its accrediting body, the Section of Legal Education and Admissions to the Bar, and is pending approval by the ABA House of Delegates.)

The context is, 20% of US News’ law school ranking score is based on test scores and grade-point averages.

LIF previously speculated that the ABA’s proposal is motivated by a desire to help law schools continue their racially discriminatory admissions policies by moving them underground. Without objective test scores, it will be harder to prove the schools are discriminating. The schools’ recent action in quitting the test-influenced rankings supports that theory.

Coincidentally, Chemerinsky was one of about 60 deans who signed a letter to the ABA last September, opposing its proposal to drop the testing requirement. This, on the grounds that eliminating the objective requirement would likely reduce diversity.

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 (emphasis added).

Did Chemerinsky change his mind? Or has he just seen the writing on the wall? Should the Supreme Court ban racially discriminatory admissions, testing would provide unwelcome evidence if those practices continue under the table. Other top schools – Stanford, Columbia, Georgetown, UCLA, Michigan, and Duke – also announced they were leaving U.S. News rankings.

Cornell and University of Chicago are so far sticking with the rankings, as are lesser-known schools like Cumberland and Jones law schools in Alabama. In a letter to students explaining the school’s decision, University of Chicago Dean Thomas J. Miles offered an ode to free expression:

As our University is dedicated to the free expression of ideas and to questioning viewpoints, our aim is not to suppress opinions. Rather, we should encourage prospective students to apply critical thinking and reach their own conclusions about what value the rankings add… What makes the Law School distinctive is its unabashed enthusiasm for the life of the mind—the conviction that ideas matter, that they are worth discussing, and that a single viewpoint or style of thought should not be imposed. Instead, our faculty expose students to contrasting views, confident in students’ abilities to think critically and choose their own paths… Our commitment to the core missions of excellence in scholarship and teaching has made our Law School eminent…

To what ideas was Miles referring, and why did he refer to excellence in scholarship? As Miles suggests, readers may reach their own conclusions.

Even if the Supreme Court doesn’t ban discriminatory admissions, the state of California already does. Since 1996, California has prohibited racial preferences. (Michigan did the same in 2006. The deans of Michigan and UCLA law schools, both state schools, also signed the letter to the ABA that opposed dropping the LSAT.) One can understand why UC-Berkeley Law’s dean needs to be circumspect in explaining why the school wants to avoid the attention of a ranking system that would report about a school’s admitting certain students with lower test scores and grades.

12/1/22 Edited to clarify item #4 above.

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