Race, Racism and the Law

By Vernellia R. Randall
Guest Commentator

The US News & World Report rankings are out, and law professors are dashing to find out how their schools rank, so this is a good time to issue an alert:

If you are a black, Hispanic, Asian or Indian law school applicant who has been denied admission — Listen up! You may have been discriminated against based on your race.

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 percent 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 percent of black applicants will be presumptively denied, but only 20 percent of white applicants will be "presumptively denied." While "presumptive" denial need not be absolute, for some schools less than .5 percent 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.

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 percent 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 percent 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 percent 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 percent of the nation’s lawyers are black even though blacks represent 13 percent 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 percent 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:

What is the school’s admission policy?  Does the school use an LSAT based admissions grid?  Why were you denied admission including where you fell on the grid? Who reviewed your filed and what factors contributed to your denial?

If you had special circumstances (such as disadvantage or hardship, working during college, graduate education, first generation college, more than 10 years since college, military experience, international experience, etc.), how did those circumstances factor into the school’s decision?

To what extent is the school committed to diversity? In the previous years how many of your specific minority group applied (e.g. black)? How many were ultimately denied? (Remember: a waiting list is a denial if they never take you off the list.)

Ask yourself, is it possible that you may have been discriminated against? Don't assume that a low LSAT or a Low UGPA means that you are not qualified.  Those of us interested in a fair and equitable legal system should be very concerned! The impact of these law school policies and practices may do more to limit minority access to the legal profession than any reversal of affirmative action. 

There are actions you can take to make the law school in your city or state, or your alma mater accountable:*

Demand that the school has a student body that reflects, at a minimum the racial diversity of the nation, generally and the racial diversity of the region specifically.

* Form a group to monitor your local or state school, or alma mater.  

* Ally yourself with supportive members of the law school faculty; for references contact the Society of American Law Teachers.

* Protest the presumptive practice, in  general, and  specifically any presumptive cut-off  not based on documented inability to perform well in the particular law school.

* Protest any admission practice that does not provide the same full file review to all the applicants. That review should be done by the entire admission committee and not just one or two admission professionals.

* Don't accept attempts to increase the number of minority students who are coming to the particular school through the use of scholarships, etc  (increasing the yield) without changes in presumptive deny policy and practice (decreasing opportunities).

* Ask for data including the school's LSAC First Year Correlation Studies.

W.E.B. Dubois said that “the problem of the 20th century was the problem of the color line.”

That color line was overt and legally enforced.

Here at the beginning of the 21st century, the problem of the color line continues – but now it is institutionally and structurally enforced.   In the absence of laws, policies and practices that address institutional racism and discrimination,  the problem of color line will continue for another hundred years.

Demand a change!