Friday, May 14, 2004

The LSAT and Affirmative Action

Dear Colleagues:

It has recently been learned that the (low) numbers and percentages of African Americans and Chicanos declined somewhat from 1998 to 2003. This fact apparently was disclosed at a midyear conference of an allied organization by an official of the Law School Admissions Council (“LSAC”), which sponsors the LSAT.

The decline occurred before and during the period that various legal education groups, whose personnel often are incestuously tied in with the LSAC, were persuading the Supreme Court in the Michigan Law School case that continued affirmative action is needed for diversity in law schools. I read a number of their briefs, but do not recollect them telling the Supreme Court (much less emphasizing to it) that the numbers of blacks and Chicanos in law school were in the process of declining under the regime of affirmative action which they so strongly favored. One inevitably wonders whether this apparent omission was a method of deliberately withholding an unpalatable truth from the Court by failing to tell it facts which would show that truth. Or is my memory incorrect?: That is, did legal organizations, e.g., the American Bar Association, tell the Court that the numbers of blacks and Chicanos were declining under the affirmative action favored by the ABA, but I just don’t remember this?

It is unpalatable to liberals, and to the minority leaders who exemplify what might be called “professional race men,” to recognize that for a long time affirmative action has not been a method of getting an adequate number of minorities into law schools. Rather, it has been a band-aid used to get small numbers of African Americans into some schools, especially the so-called “elite” law schools, in order to compensate to a small extent for the fact that the law schools’ method of selecting students keeps most African Americans out of law schools. The law schools place very heavy, often overwhelming, emphasis on the extremely questionable LSAT in their admissions processes. Were it not for this emphasis -- born in major degree of a desire to be “elite” -- there would be plenty of African Americans and Chicanos in law schools. They would be in law schools without need of using the band-aid of affirmative action to try to minimally compensate for the fact that stress on the LSAT generally keeps them out.

The point I am making here is one that the Massachusetts school of Law made in a short amicus curiae brief filed in support of neither side in the Michigan Law School case. As far as I know, MSL was the only party or amicus to inform the Court of the truth under discussion. Ironically, the only two Justices to pick up on the idea, whether because of MSL’s brief, or much more likely, for other and perhaps not very admirable reasons entirely, were two who are rabid conservatives and who, it may be thought, have cared the least for minority rights in the Michigan case or elsewhere even though one of them is himself a minority. (That, of course, is Thomas. The other was -- you guessed it -- Scalia.) The rest of the Court was bamboozled by the many briefs desperately urging affirmative action upon it as the only remedy for a lack of minority students.

I have set forth below excerpts from the amicus brief filed by MSL in the Michigan Law School case. The excerpts develop more fully the idea, the reasons, and the terrible societal consequences of the fact that the law schools’ heavy reliance on the very dubious LSAT results in a dearth of minority law students.

Sincerely yours,

Lawrence R. Velvel

For the complete version of the below excerpted text, please click here.

The Massachusetts School of Law (“MSL”) takes no position on the outcome of this case. MSL submits this amicus brief solely to assist the Court in understanding why law schools have found it necessary to use affirmative action in their admissions practices in order to enroll minority students. We emphasize that affirmative action has been considered necessary because use of the LSAT as a major tool of law school admissions – indeed as the major tool of law school admissions -- results in a decreased pool of Aqualified@ minority applicants and in reduced admissions of minorities. We also briefly discuss other practices that decrease the pool of minority applicants. The facts we present can appropriately be considered relevant, on one side and the other, to the question of whether a compelling state interest supports the use of affirmative action by law schools and to whether, as a general matter, affirmative action is tailored to provide racial minorities with legal education and entrance into the profession.
MSL was founded, and is dedicated, to providing legal education to racial and ethnic minorities, members of the working class, immigrants, and persons in mid-life. It was thus founded and is devoted to providing education to persons who, as shown in this very case with regard to minorities, were not and are not receiving legal education in sufficient numbers.
The type of affirmative action practiced by the University of Michigan Law School, and at issue in this case, is one that has been necessitated in significant part by the numbers-oriented admissions tools used by most law schools, especially the schools' heavy focus on the LSAT. Perhaps no other tool used in graduate school admissions has come under such attack in recent years as the LSAT, which for many decades has been the only admissions test approved by the ABA's Section of Legal Education.
A. The Belief That Diversity Is Necessary In Law Schools Because A High Percentage Of American Leaders Are Attorneys.
It is by now widely, but not universally, believed that racial, ethnic and economic diversity in student bodies at institutions of higher education is beneficial both to the academic institutions and to society as a whole. Moreover, it is felt that the need for diversity in law schools and the legal profession is as or more important than in any other field. For it is an undeniable fact that, more than any other profession, lawyers fill the ranks of leadership in this country. The legal profession has supplied more than half of our presidents, more than half of our senators, almost half of our state governors, and more than one-third of our federal congressional representatives.[2] One entire branch of our tripartite federal and state governments -- the judiciary -- is by necessity comprised, with few exceptions, of those trained in the legal profession. Lawyers play a leading role in major public and private universities, often serving as presidents (as was the case with the former President of the University of Michigan, Lee Bollinger, who headed the University when this case was brought). They often head or are important actors in corporations, are very active in real estate investment, and are major figures in non-profit organizations. To deny minorities access to legal education -- to a major avenue of advancement in American society -- is to deny them the right to fully participate in American life.

B. The Long Exclusion of Minorities From Law Schools.
The history of minority admissions to our nation=s law schools and the legal profession is not one of which the legal profession can be proud. For nearly 100 years the ABA, and almost all American law schools accredited by its Section of Legal Education, used rules and practices that excluded the groups that are now the subject of affirmative action plans such as the one at issue in this case. Sometimes the exclusion was the specific purpose of those rules and practices; sometimes it was “only” the inevitable result of them. Either way, exclusion was the order of the day for nearly 100 years.[3]
The ABA itself, and its Section of Legal Education, which accredits law schools, were both founded in major part to insure the exclusion of “undesirables” from the legal profession. See the works cited in n. 3, supra. Among the unwanted were Jews, African-Americans, immigrants, Catholics, Italians, Slavs and women. To further insure that only the desired types could enter the legal profession, in the 1920s the Section of Legal Education began accrediting law schools, using rules and policies that excluded institutions, particularly night schools, that served the unwanted groups. Id. Over the course of the next fifty years, the ABA persuaded almost all state supreme courts and state boards of bar examiners to permit their bar examinations to be taken only by graduates of exclusionary ABA-accredited schools -- only by graduates, that is, of schools which adhered to rules and practices which, sometimes purposely and sometimes “only” by effect, largely excluded African-Americans.
The exclusionary practices of the ABA and ABA-accredited schools were highly successful over the years with regard to African-Americans. No blacks were permitted even to be members of the ABA itself until 1943. See Boyd, supra n. 3, at 101; Brief of American Bar Association as Amicus Curiae to the 6th Cir. Court of Appeals at 3-4. And, until the Civil Rights Revolution of the late 1950s and early 1960s, there were few African-Americans in law schools, except for those in the few historically black law schools such as the Howard University Law School. As late as 1971, at least 12 to 15 years after the beginning of the Civil Rights Revolution, and 17 years after Brown v. Board of Education, total minority enrollment in ABA law schools -- that is, total enrollment of blacks and all other minorities -- was only about five percent. The enrollment of women, who had also been discriminated against in earlier decades, was less than ten percent.[4]

C. Reliance on the LSAT by American Law Schools and by ABA Accreditors.
When the ABA and its Section of Legal Education, as well as many individual law schools, finally decided that it was necessary to reduce the exclusion of blacks and other minorities from law schools, and to attain diversity, they found it very difficult, indeed nearly impossible, to do so. For the accreditation criteria required by the ABA, including admissions criteria approved by the ABA and used by most law schools, made it extraordinarily difficult to attract or to admit blacks and other minorities to ABA schools.[5] For example, for decades the LSAT was the only admissions test approved by the ABA accreditors, who also demanded that schools admit only students with scores sufficiently high to satisfy the accreditors. Yet even the accreditors themselves have long conceded that ABA law schools were placing “undue weight” on the LSAT, and that, because of the test’s discriminatory impact, it should only be used in conjunction with non-numerical factors. Thus, the Section of Legal Education and the Law School Admissions Counsel issued cautionary statements ostensibly warning against misuse and/or over-reliance on the test. See e.g., William C. Kidder, Does the LSAT Mirror or Magnify Racial and Ethnic Differences In Educational Attainment?: A Study of Equally Achieving AElite” College Students, 89 Cal. L. Rev. 1055, 1064-1065 (1999), (discussing a report concluding that the vast majority of ABA-accredited law schools are using the LSAT inappropriately); William C. Kidder, Portia Denied: Unmasking Gender Bias On the LSAT And Its Relationship To Racial Diversity In Legal Education, 12 Yale J.L. & Feminism 1, 20-21 (2000); Eulius Simien, The Law School Admission Test As A Barrier To Almost Twenty Years Of Affirmative Action, 12 Thurgood Marshall L. Rev. 339 (1987). But, despite the ostensibly cautionary statements, the Section of Legal Education has failed to follow its own warning regarding use of the LSAT. The Section has continued to insist on use of the LSAT and on high LSAT scores, and this, combined with law schools’ desire for an “elite” student body, causes the LSAT to be as influential and exclusionary a tool in law school admissions today as ever before.[6] (The exclusionary effect of the LSAT, and of other accreditation rules, has been extensively elaborated in an article by Professor George B. Shepherd of Emory University Law School. The article, entitled No African-American Lawyers Allowed: The Inefficient Racism of the ABA’s Accreditation of Law Schools, is due to be published in The Journal of Legal Education, the “trade publication” of the legal academic world.
We note that the District Court opinion is replete with references to testimony by witnesses who confirmed that use of race-based admissions policies in law schools has been necessitated by the schools’ heavy reliance on numerical criteria, specifically the LSAT. Grutter, 137 F. Supp. 2d at 840-841. The record below, as well as other published studies, confirm that minorities= LSAT scores are consistently lower than those of non-minorities. Color-blind application of numerical criteria such as the LSAT would result in such a low proportion of minorities being admitted to law school that many schools, such as Michigan, have chosen to employ affirmative action programs to try to compensate for the racial discrepancies.
The importance of the LSAT to law school admissions cannot be overstated. It is fair to say that, academically, law schools insist that applicants have high undergraduate grade point averages and high scores on the LSAT, with the LSAT generally being the far more influential of the two requirements. In fact, because of the Section of Legal Education’s insistence on use of and high scores on the LSAT, and because of law schools’ widespread desire to be among the “elite,” the LSAT has become virtually the summum bonum of law school admissions; it usually is the major factor that most schools rely on in making admissions decisions. [7] Most schools even use arbitrary “cut off” scores -- in which the LSAT usually is the major factor -- and will not even consider admitting an applicant who is beneath the “cut off.” And truly tiny differences in LSAT scores -- such as one or two point differences on a scale of 120 to 180 -- will settle a person’s fate adversely with regard to admission to a particular school or even any school. Persons with superior grade point averages are often turned down strictly because of their LSAT scores -- a fate that is distressingly common among African-Americans and other minorities.[8] Schools ignore traits necessary to success in law school and the practice of law, such as diligence, persistence, creativity, ability to write, ability to speak, ability to plan, and ability to work with people.
The District Court said, over the contrary claim of the University of Michigan’s counsel, that the ABA does not require schools to use the LSAT, because the ABA’s formal, written accreditation rules say only that applicants must take “an acceptable test.” Grutter, 137 F. Supp. 2d at 870-71. In theory, the District Court may have been correct, but in practice, it was not. While the ABA’s formal written rules do not require use of the LSAT, the ABA requires this in practice. No school that does not use the LSAT has ever been accredited. For decades it was unquestionable that a school employing an admissions test other than the LSAT (or not using any standardized admissions test) could never hope to become accredited, and it remains at least highly questionable as to whether such a school can even hope to be accredited anytime in the future.
The District Court also said that the ABA does not require law schools to give LSAT scores any particular weight. Grutter, 137 F. Supp. 2d at 871. Again, while correct in theory because the formal rules of accreditation do not mandate any particular LSAT score, this conclusion is not accurate in fact. True, when it comes to schools like Michigan, whose students, minority and non-minority alike, all have high, or at minimum good, LSAT scores, the ABA accreditors do not care what students’ scores are. But when it comes to schools which seek to provide legal education to minorities and the working class, who generally have lower LSAT scores than those of students at schools like Michigan, the ABA accreditors care very much about the students’ LSAT scores. See John A. Sebert, Accreditation Aids All Students, National L.J. A21 (June 25, 2001). If the accreditors’ regard the scores as too low, they will deny accreditation to a school, or will threaten disaccreditation if it previously was accredited. ABA accreditors recently revealed that they generally deny accreditation to schools whose students have an average of less than 143 on the LSAT. Since the average LSAT scores for African-Americans is 142, the accreditors’ concern for the level of LSAT scores makes it very difficult, or actually impossible, for a school that wishes to extensively serve minorities to obtain accreditation. Shepherd, supra at 6, 24-25; See John A. Sebert, Accreditation Aids All Students, National L.J. A21 (June 25, 2001).
We note that there also are other practices which law schools and their accreditors insist upon but which also adversely affect the number of African-Americans who are able to enroll in law school. These practices are Ainput@ rules that require, and measure a law school by whether it is inputting and using, large amounts of expenditures and resources, rather than by whether it is teaching students the skills and techniques they need. These rules – which are being used although Congress unsuccessfully sought the elimination of input rules in its 1998 Amendments to the Higher Education Act[9] -- have driven the costs and tuitions of law schools so high that the average law school graduate now graduates with more than $84,000 in law school debt alone, with law school debt of $100,000 to $140,000 being reasonably common. These rules have raised the cost of legal education far beyond what can be afforded by minorities, immigrants, and working class persons.[10]

D. The Failure of Race-Based Affirmative Action Policies.
Because many law schools still strive to maintain Aelite@ status by emphasizing high LSAT scores that are out of reach of most minorities, and by admitting only a small percentage of those that apply, there is yet another point of relevance. It is that race-based affirmative action demanded by the ABA and used by the University of Michigan has had only limited success in overcoming the effects of the racially exclusionary policies.
Today, after 30 years of race-based affirmative action, most American law schools are still not truly diverse. Thus, although the ABA regularly claims success because minorities of all types, including Asian-Americans, are now about 20 percent of the collective student bodies of all ABA schools, the fact remains that African-Americans are only about seven percent of the collective student bodies. Even more disturbing, they are even more sparse at a host of ABA schools, including many located in states with large African-American populations, while disproportionate percentages of African-American students are funneled into the historically black law schools.
At least 120 of the approximately 180 ABA-accredited schools remain largely white, with 75 of the 120 schools having African-American populations of zero percent to only four or five percent in 1998-99, after nearly 30 years of the ABA’s version of affirmative action.[11] Such schools cannot be said to be truly diverse. Moreover, many of these white schools are located in states with large African-American populations, such as New York, Pennsylvania, Virginia, Georgia, Florida, Louisiana, Kentucky, Ohio, Illinois, Missouri, Texas and California. Id. At the same time, the ABA’s five historically black schools -- Howard, Southern, D.C. School of Law, Texas Southern and North Carolina Central -- have student bodies that are, respectively, 84.4 percent African-American, 66.2 percent African-American, 65.2 percent African-American, 58.5 percent African-American, and 45.4 percent African-American.

E. The American Law Schools= Continued Reliance on the LSAT (and Other Practices) That Creates the Need for Affirmative Action.
As discussed, many of the rules and practices of the ABA accreditors and of American law schools, including heavy reliance on the LSAT in the admissions process, and the elitist weltanschauung in legal education, have law caused schools to believe that race-based affirmative action policies are necessary to achieve diversity.
The District Judge was aware that the existing rules and practices have created the need for affirmative action. He thus said that “One . . . solution may be to relax, or even eliminate, reliance on the LSAT,” especially since “[t]he evidence presented at trial indicated that the LSAT predicts law school grades rather poorly . . . and that it does not predict success in the legal profession at all.” Grutter, 137 F. Supp. 2d at 870 (emphasis added). Thus, he said, if the Michigan Law School seeks students who are likely to succeed in law school and the legal profession, “one must wonder why the law school concerns itself at all with an applicant’s LSAT score.” Id. He also pointed out that race-neutral alternatives were available, including, among others, “decreasing the emphasis for all applicants on undergraduate GPA and LSAT scores,” Grutter, 137 F. Supp. 2d at 852-53, and he made explicit that there had been no testimony “as to whether the University of Michigan Law School has considered reducing its reliance on the LSAT or whether it has considered challenging the ABA’s requirement that applicants take “an acceptable test.” Grutter, 137 F. Supp. 2d at 871, n. 63.
A holistic, non-LSAT-driven approach, we note, is a very logical alternative for law schools to use.[13] In any event, suffice it to say here that schools can develop appropriate admissions policies to obtain diversity if the use of race based affirmative action is struck down.

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