Artificial selection: LSAT bias affects us all

BY AARON SALAYMEH

It’s easy for students here to believe they are the product of a Darwinian selection process that culminates in their anointment as the best and brightest, as future leaders of America. The Law School reifies its choices by praising its incoming 1Ls, who “deserve” to be here. In analyzing this claim, we would like to unpack the most critical (and, in some cases, sole) admissions criterion: the LSAT.

Numerous studies have demonstrated that the LSAT is a biased exam that disadvantages women and minorities, yet law schools continue to rely on the LSAT score to differentiate between applicants. While some may argue that affirmative action balances the LSAT bias, this is contradicted by the facts. As researcher William C. Kidder has noted, “Even when diversity is a factor in admission decisions, the negative impact of the LSAT is so severe that among applicants with approximately the same GPAs, whites consistently have the greatest chance of being accepted into ABA law schools.”

Further, the differences in LSAT scores along racial and gender lines cannot be explained as matters of qualitative “deficiency” because, according to at least one study, racial and ethnic gaps on the LSAT are found to be larger than differences in undergraduate grades, law school grades or measures of subsequent success in the legal profession.

If qualitative differences do not account for differentiation in LSAT scores along race and gender lines, then, how can we explain that differentiation? It’s actually quite simple: Every question on the exam is pre-tested to ensure that minorities and women do not have a statistical advantage. Doubtful? In his expert report submitted on behalf of intervening defendants in Grutter v. Bollinger, Jay Rosner, Executive Director of the Princeton Review Foundation explained:

“The actual task that Law Services performs, year-in and year-out, is accumulating a test full of individually chosen LSAT questions with foreseeable cumulative effects, which are that, on average: whites will score higher than blacks, men will score higher than women, and wealthy students will score higher than poor students. This occurs not by chance; on the contrary, it arises from the fact that virtually all of the individual questions chosen to appear on the LSAT have, in pre-testing, favored whites and men and the wealthy.”

Rosner explains that, in addition to question selection, another reason for LSAT score bias is the expensive preparatory classes that generally advantage wealthy and non-minority students. By training students to take the LSAT, these classes provide essential test-taking strategies to those students who can afford it. Rosner concludes that “all (or nearly all) of the individual pre-tested questions selected for use on the LSAT favor whites over African Americans. Disparate results occur not by happenstance, but by design.” Law school administrators have been aware of the LSAT’s discriminatory effects for years, but they continue to report the high scores of their students in an effort to maintain their ranks. This discriminatory exam injects its poison into the law school admissions procedure, perverting the outcome so that the “merit” it creates embodies preexisting privilege rather than a more substantively accurate assessment of the ability to excel in law school.

Unfortunately, there are significant social consequences to the use of these purposefully discriminatory test results as the primary criterion in law school admissions. “Research shows a negative correlation between social activism and performance on the LSAT for the national pool of test takers,” Kidder has explained.

Students with high LSAT scores, who are more likely to be accepted at elite schools, are less likely to use their influence, knowledge and connections to contribute to social causes. Take a moment, then, to consider HLS. The effect of “elite” admissions criteria is the explicit selection against diversity and social activism, which means that members of certain groups are effectively prevented from using legal power to benefit their communities. It is our solemn responsibility, as beneficiaries of this regressive diagnostic tool, to consider its effects upon our discourse and refuse to submit to the reflexive self-worship and praise of alma mater.

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