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It’s Time to Repeal the ABA’s Law School Testing Mandate

Aug. 16, 2022, 8:00 AM

The American Bar Association Council on Legal Education is moving toward an outcome-based model of accreditation. This aligns with a broader reorientation in educational oversight across many fields.

When properly tailored to local circumstances, metrics such as retention, bar passage, and employment hold law schools accountable for achieving their missions of educating future lawyers. Accreditors then encourage schools to innovate and distinguish themselves in how they achieve these and other goals.

As part of this focus on outcomes, the ABA council has called for public comments on whether to repeal Standard 503, which requires almost all applicants for J.D. programs to submit standardized test scores. The standard has been in effect for more than 50 years.

Test scores measure one dimension of incoming students, before they even begin law school. This backward-looking factor does not measure how well a school achieves its mission of educating students and launching their careers in law.

The 503-testing mandate has reinforced a cramped view of legal excellence. The LSAT and the GRE have been validated based on their ability to predict first-year grades, but are not known to predict other important attributes of great lawyers. These include counseling, judgment, community engagement, empathy, compassion, tolerance, leadership, teamwork, organization, entrepreneurship, strategy, initiative, and grit, to name a few.

Even if first-year grades defined legal excellence, study after study finds that the LSAT and GRE tests predict less than half of the variation in first-year grades. Nonetheless, schools presently feel forced to give test scores excessive weight in admissions decisions because of their role in law school rankings.

The ABA testing mandate facilitates this harmful distortion, which cuts against other important priorities, misleads prospective students searching for quality and value, and does not advance the legitimate goals of an educational accreditor.

Repealing the Mandate Would Allow Flexibility

With repeal of Standard 503, law schools would have flexibility to create special admissions pathways to distinctively achieve their missions and their accreditation outcomes. These pathways might be developed for older students changing careers, or students who successfully complete interviews, field placements, or preparation programs that demonstrate their ability for legal study.

Other ABA standards require law schools to guarantee equal opportunity and advance diversity. This charge comes in a world of inequities across class, place, race, and ethnicity.

Test scores purport to show who has the greatest accumulated intellectual capital at a given point in time, reproducing those inequitable distributions. Test scores do not measure the applicant’s transformative potential to learn and grow through a supportive and intentional law school experience.

As the Law School Admissions Council has reported, the average LSAT score for White test takers is more than 10 points higher than the average score for Black test takers, and disparities are shown for Native American and Hispanic test takers as well.

In undergraduate education, research shows that test-optional policies are associated with a 10%-12% increase in enrollment of first-time students from underrepresented racial/ethnic backgrounds. (The study did not include performance outcomes.) Of course, inclusion is only the first step; law schools will be held accountable for providing appropriate academic support to ensure successful outcomes.

Another ABA regulation (Standard 501) will continue to require that schools only admit students who appear capable of completing the program of legal education at that school and being admitted to the bar.

Many law schools committed to equal opportunity and advancement of diversity in the legal profession now consider race and ethnicity as among the factors to contextualize test scores. However, some states forbid the use of race or ethnicity as a basis for admissions, and the US Supreme Court is now considering two cases that could make such practices illegal nationwide. Standard 503 puts schools in a double-bind, required by their accreditor to consider test scores that have generated known racial disparities but some prohibited—and all potentially prohibited—by law from considering the racial context of those scores.

Schools Should Decide Their Own Admissions Policies

Reasonable people will disagree about admissions policies, and we do not suggest an optimal approach. We do, however, suggest that those debates are best held at individual law schools, considering their unique missions, applicant pools, pathways to practice (especially in light of changing and varied bar requirements at the state level), with national, regional, and localized data, and engaging with their own stakeholders. A one-sized-fits-all approach should not be enforced by the ABA on threat of revoking a school’s accreditation.

This move is not radical. Repeal of the testing mandate will bring law in line with professional schools of medicine, dentistry, pharmacy, engineering, architecture, and business—none of whose accreditors mandates the use of admissions tests. Most schools in these fields continue to rely on tests and most applicants continue to take them.

Students who perform exceptionally well on standardized tests can still stand out on that basis. But without a simplistic mandate, these schools use tests in a tailored, purposeful way, commensurate with their value. Law schools will do likewise.

Outcomes, innovation, and inclusion: these are powerful reasons to move beyond the current testing mandate. We can do better.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Christopher T. Robertson is an associate dean, the N. Neal Pike Scholar of Health Law and Disability Law, and professor at Boston University School of Law. He is founder and was principal investigator of the JD-Next program, which began at University of Arizona and is now used as a preparatory course by nearly 30 law schools.

Marc L. Miller is dean and Ralph W. Bilby Professor at the University of Arizona James E. Rogers College of Law, which was the first law school to rigorously evaluate and then adopt the GRE as a law school admissions test, now used by nearly 100 law schools as an alternative admissions pathway.

Robert A. Williams Jr. (enrolled member, Lumbee Tribe of North Carolina) is Regents Professor, E. Thomas Sullivan Professor of Law and faculty co-chair of the University of Arizona Indigenous Peoples Law and Policy Program. Among other books, Williams is author of “Like a Loaded Weapon: The Rehnquist Court, Indian Rights and the Legal History of Racism in America.”

John K. Pierre is chancellor at Southern University Law Center. He is also chair, Presidents’ Work Group on Policy, Advocacy and Law for the National Association for Equal Opportunity in Higher Education, the nation’s only national membership association of all of the nation’s Historically Black Colleges and Universities and Predominantly Black Institutions.