Law School Admissions Agonistes

For the past several years, the Council of the ABA Section on Legal Education & Admissions to the Bar (legal education’s accreditor) has toiled to develop a quite consequential, maybe even radical, reformation of the rules governing “input” requirements, that is, admissions policy. Long out of step with other professional and higher-ed accrediting bodies, none of which require a formal test for admissions to academic programs, the Council has developed, put out for public comment, and eventually proposed a change to the existing rule that requires a “valid and reliable” admissions test, a change that would simply omit this “input” requirement. (Details here). The new status quo would not be completely laissez faire, as law schools would still need to satisfy the ABA that they are admitting students who have a likelihood of success. Moreover, the ABA would maintain “output” standards, focused principally on bar exam performance. The most homely way to think about this change is to see the proposed new normal as this: “Law schools, you can decide as you wish on the criteria for admission of your students, but please know that you should use criteria that is tied in ways that can be fairly evaluated to student success in law school and, furthermore, you should use criteria that doesn’t risk a situation in which students fail and ultimately cannot be admitted to practice.” This proposed standard leaves experimentation and innovation to the law schools, albeit under an accreditor spotlight. It points to a future in which law schools may experiment with alternative tests, multiple measures of “merit,” or something entirely different.

The big ABA, which acts through its House of Delegates in considering whether to “acquiesce” in Council-proposed standards, has been unwilling to give its blessing to the revisions of the standards. The Council has twice sought formal acquiescence but has been outfoxed at every turn by LSAC — the provider of the LSAT — when the new policy has been brought before the House of Delegates. At the core of LSAC and their allies core concern is that the removal of an input requirement would risk law schools chasing revenues at the expense of demonstrated student ability. In short, law schools cannot be trusted to do the right thing. A command-and-control standard is therefore necessary, as LSAC sees the picture.

In this stalemate between the ABA Council on the one hand and the House of Delegates, has come an ingenious solution, albeit one that any informed observer can see through from miles away. Rather than change the standard and run into the political buzzsaw of big ABA/LSAC, the Council has come forth with the idea that law schools could seek a “variance” from the Council to admit up to 100% of its class by criteria that do not require a “valid and reliable” admissions test. Mission accomplished! Regulation kept in place, but regulation made teethless by the expressed willingness of the Council to give a free pass to any law school that requests one.

Beyond the interesting political struggle here (we ought not to think that LSAC will take this lying down), what ought we to make of this new normal, one that shifts the focus from law in the books (must have a test!) to law in action (except when you ask that you not have a test)? A few ruminations:

The incentives to have test-optional modes of admissions comes from various directions, and we serve the larger cause, imho, if we are maximally transparent about these motivations and circumstances. First, law schools have long fretted about the baleful influence of rankings on their programs, and on the well-being of their leaders and stakeholder groups. An LSAT score is easy to measure, and can anchor rankings. It has been a critical part of the rankings algorithm, although, notably, USNews has recently decreased its significance, simultaneously increasing the relevance of “output” (read: bar exam performance) measures. Law schools whose rankings has been meaningfully buffeted by test scores will welcome more flexibility. Second, and not unrelated to this first point, law schools fret about the racial and ethnic diversity of their classes, and we know from many years of data that admissions based principally on test scores will impede their ability of law schools to pursue simultaneously high score applicants and students of color. This predicament is not disappearing although, as I look forward to writing about at greater length in a future post, the rise of JD-Next as a novel, and evidence-based, alternative admissions test is a potential game changer, as the data thus far suggests much less difference in White and non-White scores. In any event, the ability to seek a variance for several or many or all law school applicants can potentially address these twin predicaments.

However, this comes with potential risks, and here too we should be transparent about all this. First, and perhaps foremost, neglecting to require an admissions test means that law schools must seek other predictive measures of law school success. Don’t believe the propaganda; don’t embrace the optimistic narratives. Law schools do not have anything by measure of concrete measures that approaches existing standardized tests for evaluating likely law school success. This is not to valorize admissions tests beyond the evidence, nor to elide the brute fact of racial disparities as well as wealth effects of student populations (that is, the discrepancies in the ability of students to afford expensive prep services and the like). Nor is it to say with confidence that there won’t be a someday where there might be an alternative measure for pre-law students that is at least as good or better than our current tests. The closest thing to this now is undergrad grades. But no one who does psychometric work for a living believes that grades are much better predictors than tests. Best practices say that law schools should look at tests combined with grades as part of a holistic admissions system. So, this is long way to come to the point that law schools who decide to eschew looking at tests (such as the LSAT or the GRE or JD-Next, all of which have been validated in careful studies, and in the case of the first two tests over decades and decades of scientifically rigorous analyses) run a real risk of admitting students who are unlikely to succeed.

There is a second potential risk, and it is a legal (and perhaps also political) one. Since the Supreme Court’s decision in SFAA v. Harvard, et al, law schools have been in the sights of organizations who worry that these schools will seek to avoid and evade the Court’s ruling and undertake the task of admitting racially diverse classes without practicing the forms of racial preferences which the Court ruled as illegal. Concerns about law school subterfuge have been expressed regularly. And even if these concerns are warrantless — as to many or most or even a fraction of American law schools — law schools and their lawyer advisors certainly are looking to thread a difficult needle here, that is, to obey the law and to maintain a suitably diverse class (suitably defined by reference to the law schools’ own objectives. as well as what the ABA continues to require under its own diversity regulation). If, say, a law school abandon admissions tests principally for minoritized students, in the hopes of best threading this needle, there is a decent risk that they will find themselves in litigation, litigation in which they will need to show credibly that they are not looking to move in a test optional direction for reasons tied squarely to racial diversity. Moreover, to tie the thread of these two points together, they will want also to show that they are admitting a cohort of test-less students who can show in other ways that they will succeed in law school and on the bar. And, over time, the evidence will need to support these schools’ faith.

All of this is to say that the ABA’s proposed change augurs a very interesting time for law schools working hard to figure out what best set of admissions policies meets the goals of their programs and the requirements of their accreditors. Of course, it is possible that very few law schools will seek variances under this new regime. That too will be an intriguing state of affairs under this new normal. What we can hope, to put this in an admittedly abstract way, is that law schools will take the conditions of the contemporary regulatory and political ecosystem to carefully cogitate about what the best available evidence tells us about student performance, resilience, and that ineluctable idea of professional success.