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Wednesday, April 08, 2020

LSAT, GRE, & Law Schools in Crisis: We told you so

Warning: There is some grumpiness in this post, but I hope it won't conceal an important point.

In the summer of 2018, the ABA House of Delegates had before it a thoughtful proposal from the Section of Legal Education which proposed removing the requirement of an admissions test for law school admissions.  Law schools, the Section insisted, could be trusted to develop coherent, evidence-based admissions criteria, including the LSAT, the GRE, or another test entirely.  As the Law School Admissions Council had become over the years a de facto monopoly on the testing business with the LSAT, the case for flexibility and local knowledge was ever growing.  Moreover, slavish commitment to the LSAT was harming diversity goals, by creating an anachronistic barrier to entry.  Finally, the haze of quantification embedded in an LSAT score added fuel to the baleful rankings fire.  

But a peculiar thing happened on the road to this brave new world.  The LSAC, under the politically shrewd (and quite capable in myriad other ways) new leader, Kellye Testy, hit back hard on these efforts, working with stakeholder groups within the ABA and also with the media to tell a story -- a fabulist story -- that painted a world in which law schools would utterly abandon standards of quality to grab anyone with a pulse.  Moreover, and this is really strange, Kellye, her board, and other troops she could call upon as the CEO of her large organization argued that diversity goals would be seriously undermined by this effort.  Pause for a moment on that one: We know that standardized testing has long been used as a gatekeeping mechanism to keep persons of color from accessing our universities and law schools and, likewise, we know that USNews rankings has that consequence. Yet groups within the ABA devoted to advancing diversity in the legal profession became persuaded that the Section's proposal was a trojan horse of sorts, one that would damage law school diversity by removing the requirement that the LSAT be used.

The political effort to preserve the LSAT and therefore the Law School Admissions Council's principal revenue source was successful, and the proposal, quite likely to be defeated, was withdrawn at the last minute.  Neither of the two Legal Education Section delegates were even willing to speak in its favor at the House of Delegates meeting.  

Regrettably, precious few law school deans or other legal educators spoke out in favor of this proposal. At the time the dean of Northwestern and the chair of the AALS deans steering committee, I was a vocal advocate, writing and speaking in its favor before and during the ABA meeting. But this was mostly a lonely endeavor.  The vast majority of deans either could not be bothered to voice their support in key venues or, perhaps worse, feared the wrath of the LSAC (or else the resources that LSAC leadership none-too-subtly noted were provided to law schools as part of their admission efforts).  So, basically Barry Currier, me, and a tiny handful of others.  We were no match for Kellye and LSAC.  The LSAC won this important battle and, to the victors go the spoils.

So now where are we?  The promises of LSAC to bring the LSAT fully into the digital age have not yet borne fruit.  COVID-19 has meant that the March and April tests are cancelled.  Perhaps some digital version will become available in the near or intermediate future.  Or perhaps not.  But even if it becomes available, there will be serious questions of its efficacy and its security.  Moreover, it will be a different test, as LSAC admits

Meanwhile, the Educational Testing Service, with lightning speed, has made available the GRE for applicants to take at home. Of course, ETS has been at this digital testing business for a long time, and so was can be confident that this is not a trial run.  (At this point, I believe it important to disclose, as I have before, that I have been working with ETS for about four months on its GRE law school strategy. For a rather small amount of money, I am embarrassed to add. But  there you go).

Of course, no one saw the coronavirus coming, and LSAC cannot be faulted for not being fully prepared to deal with the myriad issues now before us with the LSAT.  However, the larger "we told you so" point remains:  Flexibility in testing, constructing a coherent digital strategy, fomenting competition among different organizations providing testing and, lastly, giving law schools permission to use the GRE if they choose to, and without jumping through time-consuming and expensive bureaucratic hoops was a good idea in August 2018.  The present crisis puts into sharp relief why.

Law schools are rightly concerned about the stability of their classes for the coming year.  In the fall, this will give way to worry about the next year.  Whether LSAC will be able assuage these worries by concrete action, in testing and otherwise, is an open question. There is no one whose commitment to the welfare of legal education and our students is greater in my experience than Kellye Testy. But she sits atop an organization that will frankly struggle to meet the needs of law schools struggling now and in the near future with this crisis. I believe that a different outcome in 2018 by the ABA would have set three things in motion: First, pressure on the LSAC to improve their testing process (which didn't happen, at least not with the alacrity that serious competition would have facilitated); second, the growth in the use of the GRE and, with it, emergence of a key stakeholder organization, ETS, which would have been farther along by now with their efforts to support law schools.  (They have been inexplicably absent on all the calls, as I understand it, the ABA, the AALS, and law schools have had -- set up through the LSAC's conference line, as I understand it); and, finally, law schools would have much more flexibility to consider student applicants at this late date and also next year, without being forced to continue in the current testing regime.

Politics matter.  The politics underlying LSAC's masterful efforts to maintain its near monopoly led to the unfortunate situation we are in.  I hope deans and other legal education leaders will heed these lessons.


Posted by Dan Rodriguez on April 8, 2020 at 03:21 PM in Daniel Rodriguez | Permalink


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