II. Systemic Racism and Misuse of the LSAT

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, Asians, and Native Americans. For one reason, minorities are seriously under-represented in the legal profession. For instance, even though Blacks represent thirteen percent of the population of the United States, they are only four percent of the nation's lawyers. This lack of representation has far-ranging effects, including limited access to power. It is no secret that most of the power brokers in the United States are lawyers. Even more significant is the growing distrust of the legal system by racial minorities, mainly because of the dearth 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 law schools, the ABA, and the American Association of Law Schools (AALS) are complicit in the misuse of the LSAT. A change in any one of these institutions--law school deans and faculty, the ABA, and the AALS--could improve the entire system.

The primary culprits in the discrimination against Blacks are law school deans and faculty. Law schools could reject the LSAT as the decisive or the trump factor in admissions. A trump factor is one that outweighs all others, such as high GPA, a graduate degree, extensive professional or volunteer experience, the overcoming of hardships, or contribution to diversity of the profession. Finally, all files that are not presumptively admitted should receive the same full file review. This review would balance a broad range of factors important to producing ethical, competent attorneys, including the diversity of the class and the profession.

The ABA could refuse to accredit schools that use any admission policy or practice that has the effect of racial discrimination, including those policies and practices which use a presumptive deny cut-off that is inconsistent with actual or projected ability to perform, and which have the effect of discrimination. Furthermore, since many factors unrelated to law school contribute to bar passage, the ABA could also focus bar passage reporting on the ultimate bar passage rate by having schools report bar passage rate one to two years after their students graduate.

The AALS, like the ABA, could refuse membership to law schools that misuse the LSAT and discriminate against minorities.

The secondary players that indirectly affect law schools policies and admissions are: (1) U.S. News & World Report; (2) university and college leaders; (3) state supreme courts; and (4) national and state civil rights organizations.

U.S. News & World Report could integrate diversity as a primary part of its ranking system. As a result, law schools would be as concerned about diversity as they are about increasing LSAT scores. U.S. News could also stop using the LSAT of the lower 25% of the class in its calculations.

University and college leadership could assert their commitment to diversity and social justice by recognizing the existence of institutional racism and enforcing anti-discrimination policies.

State supreme courts could adopt the Wisconsin approach and admit to the bar any student that graduates from an accredited state law school. This would remove bar passage as an excuse for not admitting students. Furthermore, the state supreme courts could refuse to accredit any state school whose admission policies and practices have the effect of discriminating.

National and state civil rights organizations--such as the NAACP Legal Defense and 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, and Native American Rights Fund--could investigate this practice as a potential violation of state and federal civil rights. These organizations could actively pursue litigation as a mechanism to put a stop to the practice. Law schools seem to be particularly concerned about law suits by White students. They need to be equally concerned about law suits from Blacks and other minorities. The LSAC could report LSAT scores to law schools in traditionally statistical significant score bands (ninety-five or ninety-nine percent probability).

A commitment to justice requires a commitment to diversity and requires us to achieve our goals in a way that will continue to allow us to meet those commitments. Those commitments cannot be relegated to the back burner. The goal of admitting a quality student body means that we need to go well beyond easy decisions, like looking exclusively or primarily at the LSAT and UGPA. Every applicant is entitled to a total file review based on the same criteria: academic background, experience, service, achievements, hardship overcome, and potential to contribute to diversity.