The Time Is Now: Eliminating the LSAT for the Sake of Diversity
Two-point three two percent (2.32%). If nothing else, remember that data point as you read this article.
That is the percentage, in 2022, of Black partners at law firms according to the 2022-2023 NALP (National Association for Law Placement) Report on Diversity at U.S. Law Firms. Between 2021 and 2022, the percentage of Black associates increased by approximately .6 percentage points to 5.77%, while the percentage of Black summer associates increased by .7 percentage points to 11.85%.
Nikia L. Gray, NALP’s executive director, summed up the 2022 NALP Report as follows:
While the legal industry continues to make measurable gains in the representation of women, people of color and LGBTQ individuals in the associate and summer associate ranks, it is equally clear that law firm leaders have failed to do the work necessary to break down the systemic barriers that prevent these individuals from joining them in the hallowed halls of partnership … The data demonstrates that we are nowhere near achieving the progress one would expect from an industry that has been focused on the issue of diversity for over three decades.
Ms. Gray’s remarks have merit, but how law firms address diversity is only one of the many layers of this proverbial onion that need to be peeled back to explain our profession’s continuing struggle with this issue, notwithstanding the laudable and effective work being done by many law firms through their Diversity, Equity and Inclusion initiatives.
In November 2022, the American Bar Association’s (ABA) Council of the Section of Legal Education and Admissions to the Bar—which accredits U.S. law schools—proposed to eliminate the requirement that schools be required to use a “valid and reliable” admissions test when admitting students, effective with the class beginning in Fall 2026 (until recently, the only test used was the Law School Admissions Test (LSAT) and it is still the predominant test).
The Council’s proposal was submitted to the ABA House of Delegates—the ABA’s policy making body—on Feb. 6, 2023, where it was defeated on a voice vote.
Prior to the House’s vote, 60 deans of U.S. law schools had signed a letter to the Council opposing the end of the test requirement. That letter asserted, among other matters, that ending the test requirement would “diminish diversity” at law schools:
Specifically, we fear that an unintended consequence of removing Standard 503’s requirement that J.D. applicants take a valid and reliable admissions test will be to diminish the diversity of law schools’ incoming classes, by increasing reliance on grade point average and other criteria that are potentially more infused with bias.
What should we make of the opposition of this group of deans to the ABA Council’s proposal?
First, for those concerned that the deans’ letter reflects the opinion of most deans—it does not. The 197 deans of ABA-accredited law schools had three months during which to submit comments on the proposal to make an admissions test optional. However, fewer than a third joined the opposition letter.
By contrast, when a requirement that law schools provide education on bias, cross-cultural competency, and racism was proposed, 176 law school deans joined a letter in support of the proposal. Similarly, 90 law school deans signed a letter in opposition to a change to bar passage requirements on the grounds that it would negatively impact diversity. If deans believe that making the LSAT optional is likely to reduce law school diversity, one could have expected many more to have signed on to the letter.
Second, that so few deans opposed the proposal is not surprising given uncontroverted evidence that the LSAT reduces diversity in law school admissions. Jay Rosner, in his Dec. 13, 2022 Op-Ed in the Los Angeles Times titled “The legal profession lacks diversity, and the LSAT makes matters worse,” wrote that: “In 2017, 33% of white law school applicants had the high LSAT scores (in the 160-180 range) sought by selective law schools—compared with only 7% of Black applicants, 14% of Hispanic and 14% of Native American applicants.”
The Law School Admissions Council (which administers the LSAT) has itself reported that the average score for white test-takers is 153, versus 146 and 142, for Hispanic and Black test-takers, respectively. The notion that the LSAT encourages admission of minority students who score highly but happen to have a lower grade point average is simply inconsistent with the experience of those in law school admissions, who know that most often Black students are admitted despite their LSAT scores, rather than because of them.
Third, the LSAT predicts far less than many people assume. The LSAT does not predict success on the bar exam. It does not predict success throughout law school. What it does predict is that if you take the LSAT, a three-hour, timed, written exam, and do well, there is between a 40% and 60% likelihood that you’ll do well on three-hour, timed, written exams in your first year of law school. That correlation is only slightly better than a coin toss, and it varies from one law school to another. Importantly, it does not predict success as a lawyer.
A widely cited study by Marjorie Schulz and Sheldon Zedeck identified 26 competencies necessary for success as a lawyer. Of those 26 competencies, only 12 are correlated with the LSAT at all, and of those 12, 8 are negatively correlated. Meaning, for example, that if you do well on the LSAT, you are not likely to be good at networking or negotiation.
Fourth, in the absence of an LSAT score, law schools will not just reflexively turn to undergraduate GPAs to identify admits; there are a growing number of alternative ways to assess the likelihood of law school success. One of these, JD-Next, developed by the University of Arizona is an 8-week, non-credit, online course on case reading and analysis skills that is more predictive of law school success than standardized tests for schools outside the top 50. Especially for underrepresented applicants, the goal is to measure not just the accumulated knowledge and skills that they would bring to a new academic program, but also their ability to grow and learn through the program.
Opponents of eliminating the test requirement argue that more time is needed to research the issues and that there is no need to “rush” into this decision. However, this issue has now been before the Council since 2016 when law schools requested the GRE be considered a valid and reliable admissions test. Seven years is plenty of time to decide on one action that may have a positive impact on the trajectory of diversity in the legal profession.
Ending the LSAT requirement may or may not solve the legal profession’s diversity woes. However, it removes an undisputed barrier to law school entry for many Black applicants and permits law schools to experiment with better ways to both assess law school applicants and better prepare them for the rigors of legal study.
The good news is that the Council has voted to resubmit its proposal to the House of Delegates in August. The House does not have veto power over the Council so if the proposal is defeated again, the Council may move forward with implementing the proposal. When it comes to expanding access to law school, we can do better, and we need to begin to do so now.
“The Time Is Now: Eliminating the LSAT for the Sake of Diversity,” by Alan R. Feigenbaum and Craig M. Boise* was published on March 9, 2023, in the New York Law Journal.
Reprinted with permission from the March 9, 2023, edition of the New York Law Journal © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
* Craig M. Boise is the Dean of Syracuse University College of Law.
The views and opinions expressed within the content of this article are solely the authors’ and do not reflect the opinions and beliefs of anyone other than the author.