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.

             The average correlation coefficient (1999-2002) between LSAT and First Year School of Law Grade Point Average at the University of Dayton is .4265; between UGPA alone and First Year School of Law Grade Point Average is .2725 and taken together the coefficient is .50. That is, the correlation is moderate. Other factors account at least as much as LSAT/UGPA for success in law school. When we deny admission primarily on LSAT/UGPA, we ignore the other factors that contribute to performance. We ignore the other skills, abilities, aptitudes and attitudes needed to be excellent lawyers.

            A look at LSAC correlation studies for the University of Dayton shows that even students with an LSAT as low as 135 combined with 4.0 UGPA are predicted to have acceptable performance. Even applicants below these numbers might have other factors which affect their ability to be successful in School of Law and should be given the opportunity to fairly demonstrate those factors in their application. Thus, there is no relationship between the particular scores selected as the cut-offs and the goal of academic performance at University of Dayton School of Law.

            The selection of a cutoff at 145 is particularly problematic because of its disparate impact on African Americans. Looking at national data for Fall 2002 application cycle, 25% of all African American applicants fell within the gird cell with LSAT between 140 and 144, 49% were above 145 and 36% were below 140. By making the cut at 145, an enormous number of African Americans are eliminated from effective consideration by use of an admission tool that tells so very little about the difference between those above and below that line.

            Consider what statisticians tell about what happens with students whose scores are separated by 10 points, or approximately one standard deviation on the LSAT. If Dayton had 200 students, 100 with an LSAT of 155 and 100 with LSAT of 145, approximately 39 of the students with 145 will be in top half of the first year class and 61 students with 155 scores in the top half. This represents, roughly, a 3-2 advantage for student with scores 10 points higher. Another way to visualize the issue is to consider a School of Law (like University of Dayton) which has 200 students 40 each having 140,145,150, 155 and 160 LSAT. Assume that the UGPA is not a variable and the correlation coefficient is .50. Four (4) of the students with LSAT of 140 will perform better than at least 22 of the students with LSAT scores of 160. Thus, working backward, a single point (145 over 144) is a nominal difference that does not justify a difference in admission process.

            Nor is the difference in admission process justified by actual performance. In 2002, University of Dayton reported to LSAC on 156 students. Of those 156, 22 were students who would have been presumptively denied based on the 2003 admission policy of presumptively denying anyone with an LSAT of 145 or lower and UGPA of 3.4 or lower. Of the 156 students, eleven students were on probation or dismissed. However, only two of the eleven students would have been in the presumptive deny category. On the other hand, sixteen of the 22 students had a C+ or better First Year GPA. Furthermore, 4 of the 22 students had a B or better average. In general when looking at performance, only 8 of the 22 students FYGPA placed them in the lower 25% of the class academically.

Even looking at a four year history (1999 through 2002), there is clear evidence of ability to academically perform. For instance, of the 72 students with LSAC below 145, only 5 (6.9%) were dismissed and 12 (16.7%) had a first year grade point average of a B- or better.

            Here at University of Dayton we have clear and consistent evidence that many students with LSAT's as low as 138 can do School of Law successfully and become accomplished representatives of the legal profession. The graduation rate of African American students who participated in AEP is 76% to 82% for all LSAT groupings except 120-139. Other than the 120-139 LSAT Grouping, the second highest dismissal rate (19%) was not among the 140-144 LSAT grouping but the 145 -149 LSAT grouping.

            The mean First Year GPA was 2.326 for African Americans with LSATs below 145 and was 2.380 for students with LSATs 145 or above. Essentially no difference in mean performance.

            The median third year GPA was higher for the students with LSAT’s between 120-149. Furthermore, all categories of LSAT had median GPA’s well above the minimum (2.0). A cut-off is supported by an educational justification when the cut-off yields an appropriate and meaningful inference about the applicant's successful performance in law school. Thus, the choice of cut-off score of 145 is not based on the denying persons who are incapable of passing law school.

            Given (1) the racial disparity on admission that presumptive deny disproportionate number of African Americans, (2) LSAC correlation studies that predict that the students that we are presumptive denying are capable of performing well in School of Law, and (3) the historical record here at the University of Dayton which establishes that students with LSAT as low as 138 can perform successfully, a policy and practice which denies 64% of African American applicants admission without serious consideration of factors other than LSAT/UGPA cannot be justified by claims of academic performance.

            Bar Passage Rate. The University of Dayton School has a responsibility to admit students who, with educational intervention, can successfully pass the bar. However, much of the concern about bar passage rate is about first time bar passage rates. While there are many valid reasons to be concerned about first time bar passage rate, none of them justify an admission policy/practice that discriminates. Studies show that over 70-90% of all graduates pass the bar within 2-3 retakes. Among those examinees of color who eventually passed, between 94 and 97 percent passed after one or two attempts and 99 percent passed by the third attempt.

“The data show that among minority ethnic groups, some of whose students entered School of Law with UGPAs and LSAT scores substantially below those of most of their classmates, eventual bar passage rates ranged between 78 and 92 percent. These data provide positive support both for admission practices that look beyond LSAT scores and UGPA to define merit, and for a legal education system that adequately services students whose needs and preparations vary”

            Furthermore, we significantly improved our bar passage rate (our students placed us

third in the State at an 86% pass rate) with no change in admission standards. In any case, a manifest relationship without any degree of certainty is not acceptable for establishing cutoff scores. In this case, the correlation between LSAT and first time bar passage is not only weak, but clearly educational remedies are more appropriate.

            Improving Overall Quality and Ranking of School of Law. While improving over all quality and ranking in School of Law might have other important purposes, it is not a legitimate educational necessity. Ranking is similar to market share. The law school will not suffer any competitive disadvantage. Law schools that have similar cut-off policies will be faced with similar problems of discrimination. Thus, all law schools will be on equal footing. Thus, improving or maintaining its ranking --is not a compelling, educational necessity.

            According to Dean Kloppenberg, and many other Deans, “These ranking systems are inherently flawed because none of them can take [the student’s] special needs and circumstances into account when comparing law schools”. The University of Dayton School of Law’s admission practice is unacceptable because it, at best, assesses a person in the abstract and not the particular person’s ability to successful.

            Summary. The School of Law can not rebut the presumption of discrimination because it does not have any legitimate purpose to justify the cutoff. The cutoff score arbitrarily denies African-American applicants a fair opportunity to attend law school. Even if the School of Law could show an educational purpose it cannot show that the cutoff point selected was better than any other for furthering that purpose. What’s particularly ironic is Dean Kloppenberg’s assertion that “The idea that all law schools can be measured by the same yardstick ignores the qualities that make you and law schools unique, and is unworthy of being an important influence on the choice you are about to make.” Surely the idea that all applicants can be measured by the same yardstick (LSAT/UGPA) ignores the qualities that make each of the applicants unique.

Conclusion

            A commitment to the Catholic Marinist tradition to disenfranchised communities and to diversity, makes it essential that we achieve other goals in away that will continue to allow us to fulfill that commitment. The goal of admitting quality student body means that we need to go well beyond automatic easy decisions like looking exclusively or primarily at the LSAT and UGPA. Every applicant should get a total file review based on the same criteria: academic background, experience, service, achievements, hardship overcome and potential to contribute to diversity.

            The objection is not to the goal of raising the median/mean LSAT. The objection is to the use of cutoff scores and an admission process that has disparate impact on African Americans and other minorities. According to LSAC, "Cut-off LSAT scores (those below which no applicants will be considered) are strongly discouraged. Such boundaries should be used only if ...[there is] clear evidence that those scoring below the cut-off have substantial difficulty doing satisfactory School of Law work.. . Significantly, cut-off scores may have a greater adverse impact upon applicants from minority groups than upon the general applicant population. . ." Further, LSAC asserts that "those who 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. . . Schools currently using the model described above (presumptive system) are encouraged to modify it because such methods may be using the LSAT score incorrectly."

            Here at UD we have clear and consistent evidence that many students with LSAT as low as 138 can do School of Law successfully and become accomplished representatives of the legal profession. As a school we have many competing objectives and we should not let such an imperfect measure of skills dominate. We certainly should not engage in discrimination.

Appendix

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