It
is not intentional, in your face, “we don’t want Blacks” in our law school, kind
of discrimination. No, it is that hard to understand and even
harder to eliminate institutional racism.
Institutional racism
occurs where an institution adopts a policy, practice, or procedure
that appears neutral on its face 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. Specifically,
it is estimated that at least 90% of 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). It is this misuse of the LSAT that has
a discriminatory impact.
For
example, based on a LSAT cut-off of 145, over 60% of black
applicants will
be presumptively denied, 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 admitted.
This misuse of LSAT
is devastating to all minorities, particularly Blacks and Latinos.
For instance, using 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 Undergraduate Grade Point
Average (UGPA).
Disturbingly,
law schools know that the LSAT is not capable of making fine
distinctions
among candidates. According to Philip Shelton, the president
of Law School Admission Council (LSAC), the LSAT is “Good but
not that good.” Mr. Shelton has said that 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.”
According
to LSAC, to be 95% certain that a single score is the true
representation
of an applicant’s skills, you would need a 14 point spread. In
plain English, an applicant who gets a score of 144 could have
skills somewhere in the range of 137 to 151.
It is 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, in my own school, before we changed our admission grid,
over 48% of our African American graduates in the last five
years have had LSAT below 145.
Why then are law schools
using presumptive grids?
According to some law
school deans, it is due to pressures to increase ranking
in the US News & World Report. If so, it is an ineffective
method since LSAT scores only account for 12% of a law school’s ranking
score.
Another
asserted reason is increasing bar passage. Again, there are
other 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.
Many
faculty 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 careful consideration?
Whatever
the reason law schools choose to implement LSAT “presumptive deny” practices,
it is completely unacceptable to have policies and practices
that effectively discriminate against Blacks, Latinos, Asian,
and Indians.
For
one reason, minorities are seriously underrepresented in
the legal profession. For
instance, only 4% of the nation’s lawyers are Black even though
Blacks represent 13% of the population of the United States
. 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 ever growing distrust of the legal system by racial
minorities, in significant part, because of 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 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 integrate diversity as
a primary part of their ranking system which would cause schools
to be as concerned about diversity as they are about increasing
LSAT. U.S. News could also stop using the LSAT of the
lower 25% of the class in its calculations.
Law schools (Deans
and Faculty) 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.
University and
College Leadership could assert their commitment
to diversity and social justice by enforcing their anti-discrimination
policies.
The American
Bar Association could
refuse to accredit schools whose “presumptive deny” cut-off
is inconsistent with actual or projected ability to perform,
and which have the effect of discriminating.
Similarly, the American
Association of Law Schools (AALS) could refuse
to accept as members law schools who misuse the LSAT and
discriminate against minorities.
State Supreme Courts could
adopt the Wisconsin approach and admit to the bar any law student
which graduates from a state school. Thus, reducing bar passage
as an excuse for not admitting a 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 admission process.
National Civil
Rights organizations (i.e. 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.
State Civil Rights
organization could investigate the practice as a violation
of state anti-discrimination law.
The Law School Admission Council (LSAC) could report LSAT scores to law schools in statistical
significant score bands only and not individual scores
which would significantly decrease the possibility of misuse.
Until these institutions
take steps to eliminate institutional racism, minority applicants
who have been denied admission should ask questions: