Ditching the LSAT Won’t Fix the Profession, But It’s a Good Start

Only just over half of respondents to a recent American Bar Association report agreed the “nation’s judicial system adheres to the rule of law, under which all individuals are treated equally in the eyes of the law.” And those results dropped to less than half when limited to the 18-34 age group.

Given that 5% of active lawyers in the US are Black, 5% are Asian, 6% are Latino, and very few lawyers come from economically disadvantaged backgrounds, this lack of confidence and the call for more diversity isn’t entirely surprising. What’s surprising is the ABA’s refusal to allow law schools discretion about whether to require standardized tests—specifically the Law School Admission Test—despite its demonstrated disparate impact on all these populations.

As attorneys who have litigated the devastating social, economic, reputational, and personal damage from discrimination in standardized testing, we found the recent debate on the floor of the ABA’s House of Delegates meeting, where they rejected making the LSAT optional, all too familiar.

According to the Law School Admissions Council, the company that administers the LSAT, “studies have consistently shown the LSAT to be the single best predictor of first-year law school performance.” So, according to the LSAC, whose self-described mission is “to advance law and justice by encouraging diverse, talented individuals to study law,” the LSAT doesn’t predict who will be a successful lawyer.

Instead, it only purports to predict who will be a successful first-year law student. Given that law schools are charged with educating college graduates to become lawyers—teaching them the analytic and other skills that they need to practice law—this reliance on an exam for its ability to predict performance during the first year of law school is problematic for at least a few reasons.

It assumes—without demonstrating—that first-year performance correlates with anything meaningful in the legal profession or in our larger society. Significantly, first-year law school curriculum is overwhelmingly modeled on the Socratic method introduced in 1870 at Harvard Law School. It—unlike virtually any other aspect of our society—has endured, more or less unchanged, for the last 150 years.

We aren’t aware of any data showing that high LSAT performers who do well in their first year of law school contribute to the future of the legal profession, capably represent their legal clients, or do anything else that matters to our society.

And to the extent that law schools take seriously their task of creating lawyers during their three-year curriculum, the myopic focus on first-year performance discounts the possibility that people can and do develop over the course of their legal education. If the goal of law school is to graduate a class of diverse, interested, engaged, thoughtful students who are prepared to contribute to their communities, why is their likely performance in the first third of their legal education such a significant factor in the selection process?

If law schools effectively taught their students the skills necessary to be successful lawyers, wouldn’t it make more sense for the LSAT and/or the admissions process to use a measure that correlated with a student’s predicted performance after all three years of well-delivered legal education?

And, if the rejoinder is that it’s not possible to create a standardized test that reliably predicts a student’s performance throughout the entire three-year legal education, then, perhaps, we shouldn’t use a standardized test at all.

The ABA’s continued reliance on the LSAT, despite its disparate impact, ignores the possibility that law school curricula are to blame for the current state of the legal profession. If, as the LSAC claims, the LSAT is the best predictor of who will do “well” in the first year of law school and the legal profession is dissatisfied with a lack of diversity in who does “well”, then perhaps the solution is to rethink and revise law school curricula so a different cohort of law students will “succeed” in law school.

None of these perspectives were raised when the ABA’s House of Delegates debated, and ultimately rejected, the proposal to make the LSAT optional. The hour-long debate focused on the merits of whether school deans should have discretion to consider applicants who hadn’t taken the LSAT. Speakers on both sides ignored that a legal system with the confidence of less than half of the population is, in fact, broken.

By striking down affirmative action admissions policies, the US Supreme Court has just made it more difficult for law schools to achieve educational equity and produce a diverse new generation of lawyers. Taking a critical look at standardized tests like the LSAT may be one of the best tools left to address the legal profession’s diversity problem.

If we lawyers are committed to moving the profession forward and restoring the public’s faith in what we do, we should draw on the principles we rely on in our daily practice—things like evidence and causation. If we did, we would see that getting rid of the LSAT would be a good start towards fixing the profession.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Joshua Sohn is partner at Stroock with focus on commercial and regulatory matters and complex disputes.

Robert Mantel is special counsel at Stroock with focus on complex commercial litigation, regulatory enforcement, and government investigations.

Shauneida Navarrete is special counsel in Stroock’s litigation practice.

Mark Lee of Stroock contributed to this article.

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