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George B Shepherd
excerpted Wrom: XLYRWTQTIPWIGYOKSTTZRCLBDXRQBGJSNBOHMK
Lawyers Allowed: the Inefficient Racism of the ABA's Accreditation of
Law Schools , 53 Journal of Legal Education 103 -156, 108-131 (March,
2003)
The ABA grants accreditation only to law schools that admit
"high quality students." In practice, this means schools that
serve whites but not blacks. Accreditation's end result is that, absent
affirmative action, accredited law schools admit three-fourths of white
applicants but only one- fifth of blacks.
A. The Discriminatory Accreditation Standards
Of the ABA's requirements that discriminate academically, the three
most harmful are the requirements of high LSAT scores, high
undergraduate grades, and high bar pass rates. The academic requirements
are especially severe because a school must attract students who satisfy
them before the ABA will grant accreditation.
The accreditation process is cloaked in secrecy. The ABA does not
announce publicly the specific standards that it imposes for test
scores, grades, and bar pass rates. However, I have gained access to
several of the private "action letters" that ABA accreditors
have sent to law schools rejecting their applications for accreditation.
The detailed letters make icy clear the cutoffs that the accreditors
enforce.
1. High LSAT Scores
None of the ABA-accredited law schools has students with an average
LSAT score below approximately 142. The ABA denies accreditation to any
law school with average scores below this level; indeed, the usual
requirement is average LSAT scores of at least 143. In addition, it
tends to deny accreditation to a school that admits any students,
regardless how few, with scores below 140.
Although these strict requirements do not appear explicitly in the
official accreditation standards, the ABA interprets and applies its
standards to create the requirements. Before a law school may even apply
for accreditation, it must complete at least one academic year of
operation. To gain accreditation, the school must demonstrate that,
during this preliminary period, its students had credentials that made
them likely to pass the bar exam.
As one central indicator of the ability of a school's students to
pass the bar exam the ABA uses their LSAT scores. The ABA's action
letters often cite low scores as a reason for denying accreditation. The
letter may mention the low SAT score for the student at the 25th
percentile of the student body, or it may focus on the number of
students that the school admits with low LSAT scores. Regardless of the
exact language, the ABA's basic underlying standard denies accreditation
to schools with average LSAT scores below about 143.
For example, in an attempt to gain full accreditation, the Thomas
Jefferson School of Law in California rejected any applicant with an
LSAT score below 143. Nonetheless, the ABA refused accreditation because
the 143 cutoff was too low to assure that students would pass the bar.
The action letter explained: "While the School has set a minimum
LSAT of 143 for the incoming class, the correlation studies appear to
indicate a much higher threshold before a better- than-50-percent bar
passage rate is achieved."
Likewise, a central reason for denying accreditation to Barry
University School of Law in Florida was the students' LSAT scores.
According to the action letter to Barry, a main reason that the ABA was
denying accreditation was that Barry was not able to attract
"higher quality students." Specifically, the law school's
average student LSAT score was too low and the school admitted some
students with scores below 140: "Students enrolling for the first
time in the Fall 1999 had LSAT scores ranging from 131-154 and UGPAs of
2.03-3.80. Eight 1Ls had LSAT scores below 140. Ten students starting in
1998 had scores below 140. The 25th percentile levels for 1999 admittees
were 141/2.38 for full-time students and 141/2.49 for part-time."
Similarly, in denying accreditation to Georgia's John Marshall Law
School, the ABA examined the LSAT scores of students that the school
admitted from 1998 through 2000 and concluded that the scores were too
low to permit accreditation: "The lowest LSAT during this period
ranged from 127 in Fall 1998 to 137 in Winter 2000. Over the past four
admissions cycles, the lowest LSAT was 127, 129, 132, and 137. The 75th
and 25th LSAT percentiles during the past four admissions cycles were
146/139, 145/135, 147/138 and 145/138." That is, the ABA
accreditors decided that John Marshall's average LSAT scores of about
142 or 143 were too low to permit accreditation.
Likewise, the ABA threatened to deny reaccreditation to Texas
Southern University's Thurgood Marshall School of Law unless it
established higher LSAT admissions cutoffs. According to the accreditors,
TSU's average score of 142 was too low.
. High Undergraduate Grades
The ABA will not accredit a law school unless the school's students
earned high undergraduate grades. None of the 167 ABA-accredited law
schools has students with an average undergraduate GPA below about 2.7,
or B-. The ABA reasons that students with average UGPAs below this level
cannot be expected to pass the bar exam.
As with the LSAT cutoff, this is seen in the ABA's action letters. A
reason, in addition to low LSAT scores, that the ABA action letters
often cite in denying accreditation to a law school is that the average
UGPA of the school's students is too low. For example, the ABA gave as
one of its main reasons for denying accreditation to Georgia's John
Marshall Law School its students' low UGPAs: "The 75th and 25th
UGPA over the past four admissions cycles was 3.10/2.28, 3.09/2.49,
3.00/2.33 and 3.20/2.60." Similarly, the ABA denied accreditation
to Barry in part because the 25th percentile UGPA for full-time students
was 2.38 and the school admitted students with UGPAs as low as 2.03.
Likewise, it gave low UGPAs as a main reason for threatening not to
reaccredit Texas Southern: its students' average of about 2.7 was
inadequate.
3. High First-Time Bar Pass Rates
Although a few states permit a school's graduates to take the state's
bar exam even without ABA accreditation, students from these
unaccredited schools may not sit for the bar in other states. Such a
school may seek ABA accreditation after many years of operation and
after many of its graduates have taken the state's bar exam. For a
school with an existing track record, the ABA denies accreditation if
its graduates pass the bar at a relatively low rate. Standard 301(a)
specifically requires that a school "shall maintain an educational
program that prepares its graduates for admission to the bar." The
ABA's official interpretation of this standard (301-1) says, "Among
the factors to be considered in assessing the extent to which a law
school complies with this Standard are ... the bar passage ... rates of
its graduates." Likewise, Standard 501(b) provides: "A law
school shall not admit applicants who do not appear capable of
satisfactorily completing its educational program and being admitted to
the bar."
The ABA frequently applies these provisions to deny accreditation if
the law school's bar pass rate for first-time takers is either low in
absolute terms or lower than that of accredited schools in the state.
For example, in denying accreditation to Thomas Jefferson School of Law,
the ABA focused not only on the academic qualifications of its students,
but also on their rate of passing he bar. The ABA ruled that the
school's bar pass rate was both too low in absolute terms and too low in
comparison to that of California's accredited schools. The ABA's action
letter held:
Graduates of TJSL have had significant problems in passing the bar.
In the five testings between February 1997 and July 1998, the overall
pass rate was 47%. In addition, the pass rate has declined precipitously
from 60% in February 1997 to 39.3% in February 1998 and 36.1% in July
1998, before increasing to 47% in February 1999. (The overall pass rate
for ABA-accredited schools was 56% for the February 1999 California Bar
Exam.)
In its main "conclusion" denying accreditation, the ABA
noted:
The Committee specifically finds that the School is in violation of
the Standards in that it is admitting large numbers of students who do
not appear capable of satisfactorily completing the Law School's
academic program and/or qualifying for the bar. [Standards 303(c),
501(b), and 301(a)]. While the Committee notes improvements in the 1998
and (anticipated) 1999 entering qualifications of students, the School's
own predictive studies, the high rate of academic attrition (22.4% Fall
1996 to Spring 1998), and the poor results of TJSL students on recent
California Bar Examinations all appear to indicate that a substantial
number of entering students are not capable of completing the law
School's program and/or successfully passing the bar.
Likewise, in denying accreditation to John Marshall, the ABA cited
not only the low LSAT scores and UGPAs for the school's students, but
also the students' low bar pass rates. The ABA's action letter explained
why the school failed to comply with standards 301 and 501:
Over the past six testings (February 1997 - July 1999), first-time
bar pass rates provided and updated by the Georgia Office of Bar
Admissions for JMLS graduates ranged from a high of 53.8% (February
1999) to a low of 34.2% (July 1999). Over the past six testings the
first-time bar pass rates for JMLS graduates was 40.7%, 37.5%, 52.9%,
42.3%, 53.8% and 34.2% and were from 24.8% to 56.9% below the first-time
pass rates for ABA accredited law schools in Georgia. According to data
provided by the Office of Bar Admissions, over the past four testings,
JMLS has been 25%, 47.3%, 24.8% and 56.9% below first-time rates for ABA
accredited law schools in Georgia.
Similarly, the ABA's threat to deny reaccreditation to Texas Southern
cited the school's first-time bar pass rate of 52 percent.
4. A Catch-22
The ABA's demand that schools satisfy the academic requirements
before accreditation increases the requirements' severity. It is often
impossible for a school to attract students with excellent credentials
before the school receives accreditation. The rules create a catch-22:
the ABA will not grant accreditation unless the law school has
well-credentialed students; but the school cannot attract such students
unless it is accredited. The catch-22 is unfair and harmful. It excludes
from the market new law schools that are better than existing schools.
It is a daunting barrier to entry into the market for legal education.
The ABA's requirements of high LSAT scores, UGPAs, and bar pass rates
before accreditation exclude far more schools than if the ABA required
these averages after accreditation. A school that could attract students
with high averages even before accreditation would be able to attract
students with much higher averages after accreditation; with
accreditation, the school's diploma is far more valuable.
It is incorrect for the ABA to declare that a school that applies for
accreditation is worse than a school already accredited, and therefore
is unworthy of accreditation, merely because the unaccredited school has
lower LSAT scores, UGPAs, or bar pass rates. The unaccredited school is
unfairly hamstrung because it can attract only the desperate
less-prepared students who cannot gain admission to an accredited
school. A student with other choices in law schools would not choose to
attend a law school that likely would fail to gain accreditation, so
that the student's diploma would be useless; in most states, students
from unaccredited schools are forbidden to take the bar exam. I call
this risk that students face at an unaccredited school the diploma risk.
Even if an unaccredited school is superior to an accredited school in
every aspect, students at the unaccredited school will probably have
lower scores than students at the accredited school. The students with
the best credentials will likely choose to attend the accredited school
even if it is worse, because only the accredited school will certainly
qualify them to practice law; the unaccredited school labors under the
diploma risk.
Any unaccredited law school with average student credentials that
approach anywhere near the credentials at accredited schools with
similar tuition levels is perceived by students to have a program
superior to that of the accredited schools. Indeed, an unaccredited
school with average student credentials that are even substantially
worse than those at an accredited school probably has a program superior
to the accredited school's. The only factor preventing the unaccredited
school from attracting better students is the diploma risk from lack of
accreditation.
The credentials of an unaccredited school's students are often less a
function of the school's quality than of students' perceptions of the
school's chances of accreditation. If it seems probable that the school
will soon be accredited, then students with credentials almost as good
as at accredited schools will enroll; the diploma risk is small that the
ABA will deny accreditation. Indeed, if the school's program is
substantially better or cheaper than the program at an accredited
school, then the unaccredited school may even be able to attract better
students. In contrast, if the school's chances of accreditation appear
dim, then few good students will apply, regardless of the school's
quality or cost. The diploma risk is too great.
For example, during the years when it appeared that John Marshall
might be accredited, it attracted students who were able to pass the
Georgia bar exam at a rate of about 45 percent. After the ABA denied
accreditation, however, and it seemed that the school's appeals would be
fruitless, the quality of entering students fell. The school's pass rate
fell first to 34.2 percent and then, most recently, to 20 percent. The
lower pass rate did not mean that the school's quality had suddenly
declined. It indicated only that, because of the increased risk that
John Marshall would not gain accreditation, fewer good students were
willing to enroll there.
If the ABA's goal is to ensure that a school, once it is accredited,
will have students with at least 143 LSAT scores, B- UGPAs, and high bar
pass rates, then the ABA should accredit schools with student scores
substantially below these levels. Once the school receives
accreditation, it will attract students with better credentials.
In effect, the catch-22 conditions accreditation on the unaccredited
school's creating a far better program than the programs at accredited
schools. Only by offering a better program will the unaccredited school
overcome its diploma risk and lure students from accredited schools. The
ABA's requirement that a school achieve student credentials of at least
143 LSAT, B- UGPA, and high bar pass rate before accreditation is
equivalent to requiring that the school achieve much higher scores after
accreditation. It is difficult to determine exactly how much better
students a school will attract after it receives accreditation. A rough,
conservative estimate might be that a school that attracted students
with minimum average credentials before accreditation might be able
after accreditation to attract students with at least an average 148
LSAT score and average UGPA of straight B.
B. The Academic Standards' Discriminatory Impacts
The ABA's academic accreditation standards discriminate against both
black law students and law schools that could serve them. Other than a
specific prohibition on blacks' receiving legal education, a dedicated
racist could not have constructed standards that more effectively permit
whites to enter the legal profession but filter out blacks. The opposite
of affirmative action, the standards shut black law schools and, in
effect, prohibit schools from admitting most blacks. No rational grounds
support the standards; they discriminate against blacks without
compensating benefits.
. Discrimination Against Blacks
The ABA's requirements for high LSAT scores, high undergraduate
grades, and high bar pass rates could not be more precisely calculated
to close schools that would serve blacks. Possibly because of sparse
educational resources or racially biased testing, blacks have low LSAT
scores, low undergraduate grades, and low bar pass rates. By enforcing
those three requirements, the ABA effectively says: No new law schools
that serve blacks are allowed.
The standard that requires a law school's students to have high LSAT
scores discriminates against blacks. Blacks score much lower on the LSAT
than whites. During 1999-2000 the average LSAT score for white test
takers was 152.0; the average for blacks was 141.6, more than 10 points
lower. Suppose we assume conservatively that the accreditation cutoff is
an average LSAT score of 143--although the true cutoff is actually much
higher when one considers the accreditation catch-22. Under this
standard, the ABA would accredit a school that served a completely
average group of white students: their average LSAT score of 152 would
be 9 points above the accreditation minimum. Indeed, a school with
students who scored at the 16th percentile for whites would still
satisfy the accreditation standards. In contrast, the ABA would deny
accreditation to a law school that served the average black: the average
LSAT score for blacks is more than one point below the ABA's minimum.
Even if the school's students had average LSAT scores in the 54th
percentile for blacks, the school would fail the accreditation
requirements.
The ABA standard that denies accreditation to schools that serve
students with grades below B- also discriminates against blacks. Blacks
receive much lower undergraduate grades than whites. The average black
applicant to law school has a B- undergraduate GPA; the average for
whites is B+. As with the LSAT requirement, the ABA's UGPA cutoff would
accredit a law school that served whites with grades below the white
average--even far below average. It would deny accreditation to a
similar school for blacks.
Similarly discriminatory is the standard that denies accreditation to
a law school whose graduates pass the bar on their first try at a
relatively low rate. Blacks pass the bar at much lower rates than
whites, at least on their first attempt. On the July 2000 California bar
exam, for example, the pass rates were 71 percent for whites versus 36
percent for blacks. The difference has been stark for many years. In
California, between 1977 and 1988, 73 percent of white first-time test
takers passed on average, compared to 30 percent of lacks. In 1992 in
New York 82 percent of white first-time takers passed the bar; only 37
percent of blacks passed. On average, from 1985 to 1988, the New York
pass rate for first-time takers was 73 percent for whites and 31 percent
for blacks. In 1988 the associate dean of the University of Texas School
of Law noted in a confidential draft letter that approximately 90
percent of UT's nonminority graduates passed the bar on their first try.
For blacks, the pass rate was "consistently under 50 percent."
2. The Exclusion of Blacks from the Law
Because the ABA's three academic cutoffs deny accreditation to
schools that would serve students with the characteristics of
African-Americans, the cutoffs have had exactly the impact that would be
expected: together, they have excluded African-Americans from law school
and the profession. A recent study shows that, but for affirmative
action, only about 1,821 blacks would have had the qualifications in
1998-99 to be admitted to even the least selective law school. The ABA's
academic standards create a system that, without affirmative action,
would have allowed only 22 percent of the 8,375 blacks who applied to
law school to be accepted at even the least selective school. The
remaining 6,554 blacks would not have qualified for admission at any
school. In contrast, the standards permitted 75 percent of white
applicants to gain admission: 35,967 of 47,787. Without affirmative
action, an even higher percentage of white applicants would have gained
admission.
That is, the academic standards would have caused white applicants to
be admitted at a rate more than three times that for blacks. Put another
way, the accreditation system excludes almost 80 percent of black
applicants, compared to only 25 percent of whites. Although blacks
represent 12.9 percent of the total U.S. population, the ABA academic
standards would, absent affirmative action, have caused graduates of
U.S. law schools to be only 3.5 percent black.
hat 22 percent of black applicants would have been admitted based on
scores and grades understates the exclusion of blacks. Discouraged by
law schools' requirements of high LSAT scores and UGPAs, many students
with lower test scores and grades did not even bother to apply. They
knew that their time and application fees would be wasted. The 1,168
blacks who took the LSAT in 1998 but then did not apply to any law
school are in this group; their average LSAT score was 134. If the
number of blacks who wanted a legal career is defined to include both
applicants to law school and these discouraged test takers, then the
impact of the ABA's academic standards is to admit on credentials only
19 percent.
Even this figure underestimates the number excluded. Like those with
low LSAT scores, many thousands of others were deterred from applying by
their low undergraduate grades. If they are added to the 6,554
applicants who would have been rejected and the 1,168 test takers who
did not apply, we see that, but for affirmative action, the ABA's
academic racism would easily exclude more than 10,000 blacks from the
profession each year.
The larger proportion of black students in undergraduate education
gives some indication of ABA accreditation's impacts. Colleges may enter
the market without meeting strict accreditation requirements. Blacks
make up 11 percent of undergraduate enrollment, almost 50 percent higher
than the fraction in law schools.
The deterrent effect of strict admissions requirements on the number
of black applicants can be seen at the University of Texas Law School.
Before Hopwood v. Texas prohibited racial preferences there, many blacks
applied to the law school; they recognized that the law school would
admit blacks with much lower LSAT scores and UGPAs than it required of
white students. After the court of appeals ruled, blacks understood that
they would now have to meet the same high standards as whites. The
number of black applications immediately fell by more than 50 percent.
The harshness of the exclusion of blacks differs from region to
region. In the District of Columbia the exclusion of blacks is
relatively mild. Of the seven accredited law schools in the area, one
admits students with relatively low test scores and grades, and two
predominantly serve blacks. In contrast, the entire state of Georgia has
only four accredited law schools. The students at the least exclusive of
them have average LSAT scores and UGPAs far above the average levels for
blacks. None of the schools serves more than 13 percent blacks.
. The Closing of Black Law Schools
In undergraduate education, many have noted that the best route to
success for blacks is not the elite colleges and universities, but a
group of more than 100 colleges with primarily black students. The most
prominent of these historically black colleges are Howard University,
Morehouse College, Spelman College, and Xavier University. A recent
survey by Black Enterprise magazine asked more than 1,000 black
professionals in higher education to list the colleges that they thought
offered the best education to blacks. Of the ten top schools, nine were
historically black colleges.
The HBCs demonstrate that many blacks do better academically when
they study at schools with many other blacks. The HBCs, not the elite
colleges, have provided the training for many, if not most, of today's
black leaders. Although only 16 percent of black college students attend
HBCs, of the 33 blacks that President Clinton appointed to the federal
judiciary, 40 percent attended HBCs. A recent survey showed that HBCs
produced 39 percent of black officers in the military. In a list of the
undergraduate institutions that, between 1992 and 1996, produced the
most black graduates who went on to earn Ph.D.s, nine of the top ten
were HBCs.
Although the HBCs educate a large fraction of the blacks who achieve
great success, they are not selective by national standards. They admit
average African-Americans and give them the opportunity to flourish.
Even the most prestigious HBCs accept most of their applicants, and
their students' median SAT scores are relatively low. For example,
Spelman, which the Black Enterprise survey ranked best for blacks,
admitted 54 percent of its applicants in 1997- 98, and the average
combined SAT score for its students was only about 1,055, compared to
about 1,500 for Harvard. This placed it in the fourth of five tiers in
the overall ranking in U.S. News and World Report. Morehouse, ranked
second in the Black Enterprise survey, admitted 68 percent of its
applicants and had average combined SAT scores of approximately 1,135.
It was in the bottom of the five U.S. News tiers. The other, less
prestigious HBCs, which educate many who become black leaders, have
median SAT scores even lower.
If law schools were permitted to develop as freely as colleges, many
similar to the HBCs would arise. The new black law schools would
transform large numbers of black students with average or lower test
scores and grades into successful lawyers and leaders, just as Morehouse
prepared Martin Luther king Jr. to be one of history's great leaders,
although he scored in the bottom half of the GRE.
However, the ABA's academic accreditation standards kill off almost
all of the black law schools. The ABA often wields its standards to
grant accreditation to schools that serve whites, but to close schools
that serve high percentages of blacks. Indeed, several of the schools
that the ABA has recently rejected serve high proportions of minorities.
For example, the ABA has granted accreditation to four white law schools
in Georgia. Although Atlanta's population is 67.1 percent black, the
four schools, all in or near Atlanta, have student bodies with only 6.2
to 14.7 percent blacks. Meanwhile the ABA has tried for five years to
close John Marshall, whose students are 41 percent black--one of the
highest proportions for U.S. law schools. The school's institutional
mission "is to prepare competent and effective lawyers who possess
a strong social conscience, with a particular focus on minorities
striving to serve their local communities." It also emphasizes
"its commitment to ethnic minority students, particularly black
students, who continue to be grossly under-represented in post-secondary
educational opportunities."
Similarly, the ABA is now threatening to deny reaccreditation to the
law school at Texas Southern University, the state's only law school
that serves large numbers of African-Americans. With a student body that
is 57 percent black, the school serves 92 percent of the blacks
attending the state's four public law schools. Its special mission is
serving minorities who would not gain admission to other schools.
Indeed, Texas founded the school in the 1940s specifically to serve
blacks when they could not attend the state's segregated public law
schools. Nonetheless, the ABA now threatens disaccreditation because of
TSU students' modest LSAT scores, undergraduate grades, and bar pass
rates. Likewise, the ABA has refused to grant accreditation to the law
school at Barry University in Florida. Barry's students are 25 to 30
percent minorities.
The ABA's academic cutoffs are equivalent to a rule that limits the
number of black law schools to five. Of the ABA-accredited schools, only
Howard, North Carolina Central, Texas Southern, Southern University in
Louisiana, and the University of the District of Columbia enroll more
than 40 percent blacks. Three of the five barely qualified for
accreditation. Only the students at Howard and North Carolina Central
had LSAT scores and UGPAs that clearly, if only minimally, exceeded the
ABA's accreditation cutoffs. The other three schools straddled the
cutoffs: average LSAT scores ranged from 142 to 144, and UGPAs were
C+/B-.
These patterns suggest that the ABA's academic cutoffs are
suppressing many law schools that would serve blacks. The black schools
that received accreditation just barely qualified. Several other black
schools have applied for accreditation but been rejected because of the
cutoffs. If the cutoffs did not exist, then dozens more black schools
would have arisen beyond those that applied for accreditation. Because
of the cutoffs, many universities and private entrepreneurs chose not
even to attempt to create a law school; the ABA's accreditation cutoffs
imposed an insuperable barrier to the potential schools' success.
Likewise, the nature of the schools where blacks would be admitted on
merit confirms that even a slight relaxation of the ABA's academic
standards would cause the system to exclude far fewer blacks. Absent
affirmative action, almost all of the blacks who gained admission to law
school would have been admitted only to the least selective schools at
the bottom of the rankings. That most blacks who were admitted just
barely qualified for admission suggests that thousands more blacks with
slightly lower LSAT scores and UGPAs barely missed qualifying for
admission. That is, the law schools that the ABA's academic standards
shut down would have served high concentrations of minorities.
The average 138 LSAT score for the 4,000-plus black law school
applicants who each year gain admission to no school gives some idea of
the large number of new black law schools that would arise. Merely
changing the accreditation cutoff from 143 to 138 would allow the
creation of more than forty new 600- student majority-black law schools.
Eliminating the LSAT cutoff altogether would permit more than eighty, an
average of one or two per state.
The ABA's accreditation standards and the way the ABA applies them
have had the same impact on blacks as George Wallace standing with
policemen at he schoolhouse door in Alabama, blocking blacks from
entering. Present ABA accreditors may not have rigged the standards
intentionally to close black law schools, despite accreditation's racist
history. Instead, they may be motivated by a genuine belief that
substantial numbers of new black lawyers would harm the profession.
Regardless, the result is the same. They have closed the black law
schools.
4. The Myth of Consumer Protection
The stated rationale for both the bar exam and the ABA's academic
standards is consumer protection. Both the bar exam and ABA
accreditation purport, first, to protect the public from incompetent
lawyers from shoddy law schools. Second, the accreditation rules purport
to protect students who have little chance of passing the bar exam from
being enrolled by unscrupulous law schools. This second concern,
however, derives completely from the first: without the concern for
consumer protection, there would be no bar exam, and thus no possibility
that law schools could mislead students about passing it. Of course, the
true goal of the bar exam and accreditation requirements may have little
to do with consumer protection; history shows that the true objective
has often been to reduce competition by excluding disfavored racial
groups.
Even if the ABA's true objective were to protect consumers of legal
services, the cutoffs are a failure. A long literature demonstrates that
the bar exam is a seriously flawed means of protecting the public from
incompetent lawyers. Thus, equivalent failings infect both the
accreditation standard that requires a school's students to pass the bar
at high rates and the standards that reject schools with students whose
LSAT scores and UGPAs suggest that they will not pass the bar. Because
the bar exam is irretrievably flawed, so too are the accreditation
standards that are based on the ability to pass it.
Among the bar exam's failings is that it often measures merely the
ability and opportunity to devote time to studying law, rather than the
judgment and interpersonal skills that are required actually to practice
it. The legal profession should be open to those who demonstrate
qualities such as "compassion, unselfish service to the community
and idealism," not just academic excellence. Moreover, the bar exam
may incorporate racial biases.
studies show that bar exams typically reject many people who would be
fine lawyers, at least for simpler legal tasks. The harm is not only to
the potential lawyers who are excluded, but also to the clients who
would benefit from their services, which the excluded lawyers would
often have been willing to provide more cheaply than existing lawyers.
Conversely, the exams admit many people who turn out to be unfit to
practice law. The many lawyers whom the bar disciplines for
incompetence, fraud, and stealing from clients all passed a bar exam.
Likewise, among those who passed the bar exam were both the lawyers who
form the basis for lawyer jokes and the attorneys who, in many surveys,
make lawyers one of our country's most despised groups.
That a school's bar pass rate, and the LSAT and UGPA predictors of
it, are invalid ways to protect consumers is shown by four indicators of
the pass rate's arbitrariness. First, neither the company that creates
the multistate bar exam nor the National Conference of Bar Examiners is
able to indicate what passing score will assure minimum competence.
Second, a state frequently changes its pass rate substantially from
one year to the next. For example, the overall pass rate in California
was 63 percent in July 1997, then 53 percent in July 1998. As a group,
however, the thousands of people who take the exam each year tend to be
statistically similar; there is no reason to think that the thousands
taking the exam in 1998 should have been less competent than the test
takers in 1997. The yearly changes in pass rates can be due only to two
causes: arbitrary accident or intentional efforts to limit the number of
new lawyers. Neither relates to applicants' fitness as lawyers. Because
states change the standard of competence from year to year, thousands of
people who would have been barred from the profession as incompetent one
year are welcomed the next.
Third, the bar pass rates of different states vary substantially. In
summer 1997 the overall pass rate among first-time test takers was 62
percent in Delaware, 86 in Georgia, 90 in South Dakota, and 93 in Utah.
This can only mean that lawyers who would be viewed as incompetent in
one state are admitted in another.
Fourth, during the past decade many states have purposefully and
publicly reduced their pass rates. One state is just as publicly
considering an increase in its pass rate. Others have first raised their
rates and then lowered them.
national accrediting organization such as the ABA should not pander
to the states' arbitrary idiosyncracies. A law school that is good
enough to receive accreditation in one state should be good enough in
all states. Yet pander is exactly what the ABA does. In effect, by
basing accreditation on a school's actual and expected bar pass rate,
the ABA conspires with the states to make it much more difficult for a
law school to be accredited in a state with a low pass rate than in a
state with a high rate.
The ABA's focus on both bar pass rates and predictors of the rates
makes little sense for law schools that would serve blacks because many
of their graduates would take jobs that do not require passing the bar.
More than any other demographic group, black law graduates often take
such jobs in the public sector or in business. It is harmfully
irrational for the ABA to impose a standard meant for litigators at
large corporate law firms on persons who merely seek to serve the
community by working in a local bank or in city government.
Furthermore, the ABA's focus on first-time pass rates excludes many
schools wrongly. Although both minority students and other students with
relatively low LSAT scores and UGPAs pass the bar exam on their first
try at a lower rate than those with higher scores and grades, many of
those who fail the first time pass on later tries. Although blacks
admitted to law schools due to affirmative action succeed less
frequently than other students in passing the bar the first time, they
eventually, after additional tries, pass the bar at approximately the
same rate. There is no evidence that people who pass the bar after one
or more tries make worse lawyers than those who pass the first time.
The ABA's use of LSAT scores, UGPAs, and bar pass rates to grant or
deny life to a law school elevates numerical data to a fetish. Many have
criticized the overreliance on test scores as a means to grant or deny
admission to law school. For example, according to Lani Guinier:
"[Many] have ignored the real problem, which is that we are basing
admissions for all students mainly on test scores .... What many of us
in academia call 'merit' really reflects an overemphasis on test scores,
driven by U.S. News & World Report's annual rankings of the nation's
law schools." The Educational Testing Service itself, which
administers many of the country's standardized tests, warns against
relying on them excessively, and it suggests that other indicators of
merit should be considered. The ETS notes that "equating
standardized test scores with merit supports a mythology that is not
consistent with the reality of the data." At least one unaccredited
law school, Massachusetts School of Law, has discarded use of the LSAT
completely. Although the ABA accreditation standards continue to require
accredited law schools to employ the LSAT or another standardized test
in admissions, ABA leaders have, ironically, mounted an initiative to
convince law schools both to deemphasize reliance on LSAT scores and to
develop alternative admissions criteria.
Just as it is inappropriate for law schools to base admission solely
on test scores, it is inappropriate for the ABA to use the same test
scores to accredit or kill a law school. The same reasons that support
the ABA's initiative to deemphasize the LSAT in admissions reject the
ABA's imposition of its LSAT cutoff in accreditation. It is inconsistent
and hypocritical for the ABA to oppose reliance on the LSAT in
admissions because of harsh racial impacts, while at the same time
destroying black law schools and excluding blacks from the profession by
imposing strict LSAT cutoffs for accreditation.
Indeed, the use of LSAT cutoffs in accreditation is far more harmful
than an individual school's use of LSAT scores in admissions. In the
1950s and 1960s, minority groups used standardized tests to overcome
discrimination in admissions at many educational institutions. Although
the use of standardized tests now tends to harm blacks and some other
minorities unfairly, some law schools may believe, whether correctly or
not, that use of standardized tests can still play some democratizing
role in preventing return to an earlier era when elite educational
institutions served only the sons of a rich, white upper class. One
school's decision to reject an applicant on the basis of test scores
would not, absent accreditation, prevent the person from enrolling at
another school, albeit a less preferred one. For example, in the U.S.
market for college education, where accreditation does not eliminate
schools, there are places for everybody in the thousands of colleges and
community colleges. In contrast, the ABA's LSAT cutoffs eliminate
completely the opportunity of thousands of people, especially blacks, to
attend law school.
5. ABA Accreditation vs. Affirmative Action
Proponents of affirmative action urge that low test scores and grades
should not bar African-Americans from attending colleges, universities,
and professional schools. For example, William Bowen and Derek Bok
recently reported results of a large study of affirmative action in
college education. They found that, because of blacks' social
disadvantages, SAT scores and high school grades do not adequately
indicate their promise and ability. Despite low test scores and grades,
blacks who gain admission to good schools become, in the end, just as
successful in their professions, including law, as others with higher
scores. They take unusually active roles in civic affairs; they become
important leaders both within the black community and in the society at
large. despite their low test scores and grades, they become "the
backbone of the emergent black and Hispanic middle class."
In the legal profession, the ABA's accreditation rules prevent
similar successes from occurring. The rules close law schools that would
educate a critical mass of middle-class black lawyers who would become
leaders and role models. As Bowen, Bok, and other supporters of
affirmative action show, even those with low test scores and grades can
become excellent professionals and important members of their
communities. All they need is the opportunity to prove themselves. The
accreditation rules deny this opportunity to those who would have
attended the schools that accreditation eliminates.
Similarly a recent study of law graduates of the University of
Michigan found that, although LSAT scores and undergraduate GPAs were
significant predictors of law school grades, they did not predict career
success as measured by satisfaction, income, or service. Although more
than four-fifths of Michigan's minority graduates would not have gained
admission on their LSAT scores and undergraduate grades, the minority
graduates enjoyed as much career success as Michigan's white graduates.
For identical reasons, the ABA's accreditation cutoffs based on
average LSAT score and undergraduate GPAs are inappropriate. Low LSAT
scores and UGPAs did not accurately predict career success of the
Michigan law graduates. Neither do they predict the career success of
graduates of the black law schools that the ABA now suppresses. Just as
Michigan's minority graduates did much better than their test scores and
undergraduate grades predicted, so too would graduates of black law
schools. The ABA's accreditation system rips from blacks the chance to
prove themselves.
Affirmative action and ABA accreditation are fatally inconsistent.
One cannot logically support both. For all of the reasons that
affirmative action is good and necessary, the ABA's accreditation
cutoffs are harmful and unnecessary. Proponents of affirmative action
argue that, because of the shameful history of discrimination, blacks
should be given the opportunity to excel, despite lower test scores and
grades. ABA accreditation denies them the opportunity. Proponents of
affirmative action believe that blacks who receive this opportunity
will, despite lower test scores and grades, excel and become community
leaders. ABA accreditation assumes exactly the opposite, making the
false assumption that blacks with scores and grades below the cutoffs
cannot become good lawyers and leaders.
Indeed, in the legal profession, ABA accreditation creates the harms
that lead to calls for affirmative action. ABA accreditation excludes
most blacks from the profession, causing blacks to be underrepresented
among lawyers and judges and in other fields where lawyers predominate.
These are exactly the reasons that proponents argue that affirmative
action is necessary. Without BA accreditation, there would be less need
for affirmative action. The backbone of the legal profession's black
middle class would exist without its help. Because ABA accreditation
works against the goals of affirmative action, an appropriate term for
it is affirmative discrimination. |
