release of the latest US News & World Report
rankings, law professors are dashing to find out where their schools
placed. This is a good time to issue an alert:
If you are a
Black, Hispanic, Asian or Indian law school applicant who has been
denied admission, listen up! You may have been discriminated against
based on your race.
It is not an
intentional, in your face, “we don’t want Blacks” in our law school,
kind of discrimination. No, institutional racism is hard to understand
and even harder to eliminate.
racism occurs when an institution adopts a policy, practice, or
procedure that appears neutral but has a disproportionately negative
impact on a racial or ethnic minority group.
In the case
of law schools, the discriminatory practice is the misuse of the Law
School Admission Test (LSAT) in the admission process.FN
Specifically, its estimated that at least 90% of all law
schools have admission practices that presumptively deny applicants
based on how they fall on a grid formulated around LSAT and
Undergraduate Grade Point average (UGPA).
FN This misuse of the LSAT has a discriminatory impact.
based on a LSAT cut-off of 145, over 60% of black applicants will be
but only 20% of white applicants will be presumptively denied. While
presumptive denial need not be absolute, for some schools less than .5 %
of the applicants in the “presumptive deny” category are subsequently
of the LSAT is devastating to all minorities, particularly Blacks and
Latinos. For instance, using the LSAT cuts in half the number of Black
and Puerto Rican students who would be admitted based on their
performance in college, such as their UGPA.
law schools know that the LSAT is not capable of making fine
distinctions among candidates. According to Philip Shelton, the
president of the Law School Admission Council (LSAC), the LSAT is “good
but not that good.”FN
Mr. Shelton has said that if students with an LSAT of 145 and 144 “took
the test a dozen more times… [the LSAC would ] have no idea which
student would end up with the higher average score.”FN
LSAC, a 14 point spread would be necessary in order to be 95% certain
that a single score is the true representation of an applicant’s skills.
In plain English, an applicant who gets a score of 144 could have
skills somewhere in the range of 137 to 151.
important to note that this is not an issue of ability to perform
successfully in law school. Students at all ranges of the LSAT continuum
are successful law students, law graduates, and attorneys. In fact,
before we changed our admission grid at my own school, over 48% of our
African American graduates in the last five years have had LSAT scores
Then why are
law schools using presumptive grids?
law school deans,
it is the pressure to increase rankings in the US News &
World Report. However, LSAT scores only account for 12% of a law
school’s overall ranking score.
asserted reason is increasing first time bar passage. Studies show that
over 70-90% of all graduates pass the bar within 2-3 retakes.
Among those examiners of color who eventually passed,
between 94 and 97 percent passed after one or two attempts and 99
percent passed by the third attempt.
There are still more effective ways to increase bar passage
without limiting opportunity to attend law school, such as teaching
accepted students what they need to know to pass the bar.
assert that reading all the files is onerous and time consuming, but we
get paid good money to do a job that does not have many demands. Should
faculty limit access and opportunity for racial and ethnic minorities
because we are unwilling to spend time to do our job? Furthermore, as
long as we invite people to apply, shouldn’t they all get the same
reason that law schools choose to implement LSAT “presumptive
deny” practices, it is completely unacceptable to have policies and
practices that effectively discriminate against Blacks, Latinos, Asians,
reason, minorities are seriously underrepresented in the legal
profession. Only 4% of the nation’s lawyers are Black even though
Blacks represent 13% of the population of the United States and 10% of
the LSAC application pool. This lack of representation has far ranging
effects including limited access to power. Ever notice how many of the
power brokers in the United States are lawyers? Perhaps a more
significant effect is the ever-growing distrust of the legal system by
racial minorities, due in part to the lack of lawyers and judges that
look like them.
The misuse of
the LSAT is not just an example of institutional racism, it is also an
example of systemic racism because many different institutions
that contribute to the misuse of the LSAT. A change in any one of the
institutions in the system could effect a positive change.
For instance, U.S. News & World Report could
as a primary part of their ranking system, which would cause
schools to be as concerned about diversity as they are about increasing
the LSAT. U.S. News could also stop using the LSAT of the lower 25% of
the class in its calculations.
faculty of law schools could reject the LSAT as the primary factor
and have admissions committees do full file reviews,
balancing a broad range of factors
important to producing ethical, competent attorneys, including the
diversity of the class.
and College Leadership could assert their commitment to diversity
and social justice by enforcing their anti-discrimination policies.
could refuse to accredit schools whose “presumptive deny” cut-off is
inconsistent with actual or projected ability to perform.
Association of Law School (AALS)
could refuse to accept as members law schools who misuse the LSAT and
discriminate against minorities.
Supreme Courts could adopt the Wisconsin approach and admit to the
bar any law student who graduates from a state school, thus reducing bar
passage as an excuse for not admitting student. Furthermore, the State
Supreme Court could refuse to accredit any state school that has
policies and practices that have the effect of discriminating in its
Civil Rights organizations
NACCP Legal Defense & Educational
Fund, The Equal
Justice Society, The Mexican
American Legal Defense and Educational Fund, The
Puerto Rican Legal Defense and Educational Fund, Asian
American Legal Defense Fund, Native
American Rights Fund)could investigate this practice as
a potential violation of civil rights.
Rights organizations could investigate the practice as a violation of
state anti-discrimination laws.
School Admission Council (LSAC)
could report LSAT scores to law schools in statistically
significant score bands only and not as individual scores, which would
significantly decrease the possibility of misuse.
these institutions take steps to eliminate institutional racism,
minority applicants who have been denied admission should ask these
the school’s admission policy?
school use an LSAT based admissions grid?
denied admission according to where you fell on the grid?
reviewed your file, and what factors contributed to your denial?
had special circumstances (such as
disadvantage or hardship, working during college, graduate
education, first generation college, more than 10 years since
college, military experience, international experience, etc.), how
did those circumstances factor into the school’s decision?
extent is the school committed to diversity? In previous years, how
many students in your specific minority group applied and how many
were ultimately denied? Remember that being
waitlisted is a denial if they never take you off the list.
possible that you have been the victim of discrimination? Don't
assume that a low LSAT or a Low UGPA means that you are not
Those of us
interested in a fair and equitable legal system should be very
concerned! The impact of these law school policies and practices may do
more to limit minority access to the legal profession than any reversal
of affirmative action.
to make the law school in your area, or your alma mater,
Demand that the school has a student body that reflects the general
racial diversity of the nation, and the specific racial diversity of the
Form a group to monitor your local or state school or your alma mater.
Ally yourself with supportive members of the law school faculty; for
references contact the Society of American Law Teachers.
Protest the presumptive practice in general and any presumptive cut-off
not based on a documented inability to perform well in the particular
Protest any admission practice that does not provide the same full file
review to all the applicants. That review should be done by the entire
admissions committee and not just by one or two admissions
Don't accept attempts to increase the number of minority students who
are coming to the particular school through the use of scholarships
(increasing the yield) without changes in presumptive deny policy and
practice (decreasing opportunities).
Ask for data including the school's LSAC First Year Correlation Studies.
W.W.E.B. Dubois said that “the problem of the 20th century was the
problem of the color line.”
line was overt and legally enforced.
Here at the
beginning of the 21st century, the problem of the color line continues,
but now it is institutionally and structurally enforced. In the absence
of laws, policies, and practices that address institutional racism and
discrimination, the problem of the color line will continue for another