2005 The Whitest Law School Report
and Other Law School Rankings Related
to Racial/Ethnic Diversity in Law School
Professor Vernellia Randall

InEfficient Racism of the ABA
Chapter 2: L.S.A.T., Rankings, Law School Admissions and Traditionally Discriminated Against Racial Groups

What's New!

(Based on 2004 ABA/LSAC Information)




Admission Factors
LSAC Policies
LSAC Practicies
Not that Good
LSAC ScoreBands
Ltr frm LSAC
Ltr frm USNEWS
Education Attainment
Selected Readings
Use of Quota
Minoritoes in Legal Ed
Racism ABA
Bar Study
Racism Stupid!
Black Matriculants







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.

The Misuse of the LSAT
It's Racism Stupid!
Black Matriculants Down - Fall  2005
Letter from USNEWS
LSAT Article.pdf
LSAC Cautionary Policies re Use of LSAT
LSAC Good Practices
Law School Admission Factors
LSAT Magnifies Differences in Educational Attainment
A History of MInorities in Legal Education
Defending the Use of Quota's in Law Schools
Emphasis on LSAT Scores Hurts Black Applicants
InEfficient Racism of the ABA
Selected Readings on LSAT and Minority Admission
LSAC Bar Passage Study




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2005 TWLS
01 Introduction
02 Discrimination
03 Top Ten
04 National
05 Regional
06 State
07 Isolation
08 Schools








Always Under Construction!

Always Under Construction!

Last Date Website Updated:
Friday, February 24, 2006

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Vernellia Randall.  All Rights Reserved


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Professor Vernellia R. Randall
The University of Dayton School of Law
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Dayton, OH 45469-2772



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