Race, Racism and the Law 
Speaking Truth to Power!!

To       :              Provost, The University of Dayton

cc        :              Dean, School of Law

From   :              Vernellia R. Randall 

Date    :              January, 2004

Re        :            Description of the Current Law School Admission Process

            The committee consists of six members: 4 faculty, the admission director, and a student. At committee meeting, committee members are given two different list: presumptive deny, presumptive admit. Each of these lists includes the name of each applicant, the LSAT score and UGPA along with the major and the educational institution from which the applicant graduated, the age and racial/ethnic background if available. Based on this limited information, the committee members have the opportunity to ask questions about any applicant and to request that the file be reviewed by the committee. Committee members vote on the admission of every candidate based on the limited information provided by the Admission Director, the presumptive category assigned and not on a full file review conducted by the committee. Saying that committee votes on all files is a sham and does not provide presumptive deny applicants any realistic chance of being admited. In practice, very few files are pulled out of the presumptive deny category and reviewed by the committee as a whole; even fewer are admitted.

            For example, in 2003, 95.8% of all presumptive admits were admitted and 99.55% of all presumptive denies were denied. That is, of the 449 applications that were presumptive denied, only 2 were subsequently admitted. Again while there is some factual disagreement over what process is being used, those disputes are irrelevant to the essential nature of the complaint. Whatever the process is used applicants with a 144 are being treated differently than applicants with a 145. Essentially, applicants with an LSAT of 144 or lower have virtually no chance of being admitted. This difference in treatment disproportionately effects African Americans.

            Files that are sent for committee review are evaluated based on a full file review and voted on by each individual committee members. There is a factual dispute as to whether committee members are expected to use the same criteria when evaluating the file. It appears that each committee member applies his or her own unarticulated criteria. Thus, in practice, some committee members may continue to use the LSAT/ UGPA as the exclusive, factor in making admission.

Discussion

(1)       Whether the admission practice of the School of Law has a racially disproportionate effect.

            A facially neutral practice is discriminatory when the application of the practice causes a disproportionate adverse effect on a particular racial group. In the case of the University of Dayton School of Law’s admission practices, a prima facie case of illegal discrimination is established by a showing of disparate impact on African American applicants. Disparate impact is demonstrated by statistical evidence that show that the admission practice has disproportionately excluded African Americans from law school.

            There are some factual disagreement on how the admission process functions. For instance, the law school maintains that the admission director frequently ignores the grid. They point to approximately 40 files that she pulled out of the grid last year. It is difficult to believe these assertions when only .45% of presumptive denies were admitted. However, even if you accept the law school version of the facts as true, they don’t change the basic nature of the complaint - that whatever admission practice that the law school engages in has a disparate impact on the admission of qualified African Americans. The statistical disparities in this case are sufficiently substantial that they raise an inference of causation.

            First, as compared to European Americans, a disproportionately high number of African Americans are denied with only a review by the Admission Director. A year ago (2002), the admission committee and Dean adopted a policy which presumptively denied everyone with an LSAT below 145. This policy resulted in over 64.3% African American applicants being presumptive denied compared to 20.4% of white applicant. In other words, 80% of the white applicants had a chance of being admitted because their files were either reviewed by committee or presumptively admitted. Only 35.7% of the African American applications were either reviewed by committee or were presumptively admitted. Only 35.7% of the African American applicants had a realistic chance of being admitted. This selection rate is less than four-fifths ( 4/5 ) (or eighty percent) of European Americans and is generally regarded as evidence of adverse impact.

            Second, the law school’s admission practice has had a significant impact on African American enrollment. This year (2003) we have only 3.8% blacks enrolled in our first year class. These percentages are down from highs of 8-10%. While a number of factors contribute to the decrease enrollment one substantial factor is failing to admit African Americans in the 140-144 range. From 1991 through 1997, African Americans with LSATs below 145 accounted for approximately 42% of African Americans matriculated at the University of Dayton School of Law. Thus, a change in policy which places primary emphasis on LSAT and presumptively denies anyone with an LSAT below 145 will necessarily result in discriminatory impact. Other actions (e.g. efforts to increase the pool of African American applicants and to increase the yield from applicants with LSATs above 144) should they be implemented might eventually improve the African American matriculation rate. Such actions or results won’t ameriolate the discrimination that occurs due to a policy that presumptively denies a disproportionate percentage of African American applicants.

[I]rrespective of the form taken by the discriminatory practice, an [institution's] treatment . . . [Of others] can be "of little comfort to the victims of ... discrimination." Title [VI] does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her race or sex [benefited]. That answer is no more satisfactory when it is given to victims of a policy that is facially neutral but practically discriminatory.

            The University of Dayton School of Law's admission procedures unfairly disadvantaged African Americans by not taking into account the full range of indicators of "merit." Accordingly, both the disproportionate number of African American applicants that are in the presumptive deny category and the substantial drop in enrollment of African American students, establish the prima facie case of racial discrimination.

(2)       The University of Dayton School of Law’s practice cannot be justified through any legitimate claim of educational necessity.

            Once a prima facie case is established, the practice can still be justified by educational necessity. Educational necessity exists when the challenged practice serves a legitimate educational goal. In an educational context, the challenged action must "bear a manifest demonstrable relationship to classroom education." Additionally, once disparate impact is established the institution hosting the challenged action has the burden of establishing educational necessity. The doctrine of educational necessity is very narrow.

             Last year (2002-2003), prior to implementing the presumptive admit/presumptive deny grid, the Dean and faculty vaguely articulated desire to improve bar passage. This year at faculty meeting the primary justifications for the policy was convenience. Other justifications that might be anticipated from recent conversations and correspondence include: (1) to assure admission to the School of Law students who have the requisite ability to perform well in law school ; (2) to improve bar passage and (3) to improve overall quality of the class and to increase the ranking of the School of Law.

            While assuring that we admit students that are capable of performing successfully in law school and who, with appropriate educational intervention, will pass the bar eventually, are worthwhile goals, they do not rise to the level of educational necessity because they are not based on classroom goals nor are they specific to the individual being assess. Finally, improving overall quality of the class and to increasing the rank of the School of Law is not, by definition, an educational necessity for similar reasons.

            (A)      Assuring Academic Performance.

            The University of Dayton School has a responsibility to admit students who can be successful in School of Law and in the practice of law. The immediate concern of the School of Law is to admit students who, at a minimum, have sufficient ability to maintain a cumulative grade-point average of 2.00 or higher to graduate.

            The LSAT is used as an admission tool to help predict ability to perform successfully in the first year of law school. According to LSAC, “the LSAT should be used as only as one of several criteria for evaluation and should not be given undue weight solely because its use is convenient. Those that set admission policies and criteria should always keep in mind the fact that the LSAT does not measure every discipline-related skill necessary for academic work, nor does it measure other factors important to academic success.” It is important to remember that LSAT is a skills test and not an abilities test. This is important because skills can be taught. Other factors need to be consider to determine, notwithstanding LSAT and UGPA , whether the individual has the requisite other skills necessary to succeed in law school and as a lawyer.

            Second, the accuracy of the LSAT as a measure of skill is, at best, moderate. According to LSAC , the probability of a single score (say 150) representing the true ability of a student is 65% with a 7 point (147 - 153) spread. For a 95% probability you need a 14 point (143 - 164) spread; and a 99% probability requires a 21 point (140 to 160) spread. Thus, as a predictor of future performance based on existing skills, “the LSAT is good - but not that good!” In fact, according to LSAC if students with an LSAT of 145 and 144 “took the test a dozen more times [LSAC would ] . . .have no idea which student would end up with the higher average score. . .”

            Third, the use of a cut-off score should be related to a student's ability to successfully complete the University of Dayton School of Law. While using a cut-off scores is not inherently invalid, the courts have held that there must be a statistical, independent basis for the use of one minimum score as opposed to another. No such basis exists here.

            Certainly, there is a correlation between LSAT and first year grade point average. However, as often said, correlation does not mean causation. The strength of the LSAT as a predictor of first year School of Law grade point average can be measured through correlation coefficients. The reported correlation coefficients are based on the students completing the first year of School of Law rather than all applicants. It is also based on information reported to LSAC which is an incomplete data set; nevertheless it provides useful information.