I’ve written dozens of letters of recommendation for law school applicants over the years, but two stand out. One was for Clarke, a technology start-up founder who became frustrated with his inability to decipher the intricacies of intellectual law. He had excelled as an undergraduate at a top-tier state school (where his father taught) and now he wanted to become his own attorney. Accustomed to achievement, he went for it.
The other was for Monica. The daughter of migrant farm workers from Mexico, Monica had moved repeatedly during elementary and high school, living in tents during some of the interim periods. In her freshman year of college (a second-tier state school) her twin sister was killed in a car accident. Monica decided that the accident would have been avoided had there been a turning lane in place. She dedicated her college career to convincing the state of Texas to put one in. At graduation, her grade point average was down but her turn lane, after years of battling bureaucracy, was freshly inked.
Clarke and Monica had excellent reasons for wanting a law degree. At the same time, they were different candidates destined to become different lawyers. Clark was thinking about patent law; Monica wanted to do something with urban infrastructure and social justice. But what really differentiated them, on paper at least, were their LSAT (Law School Admissions Test) scores. On a scale of 120 to 180, Clarke’s was high — over a 160; Monica’s, by contrast, was low, under 140. Does this difference matter?
The question is at the heart of an intriguing debate over law school admissions. With applicants to law school down (38 percent between 2010 and 2015), law schools are generally accepting more candidates with lower scores — such as Monica — than in years past. Lower LSAT scores, according to the American Bar Association Journal, could have something to do with increased bar exam failures. As of February of 2017, passage rates are the lowest they have been since 1972.
Some critics view this trend as the watering down of a law degree, primarily by a host of lesser-known law schools with declining admission requirements. According to data collected by Jerome M. Organ, a professor at the University of St. Thomas School of Law, in 2010 there was not a single law school in the country whose entering student body had a median LSAT score under 145. By 2015 there were seven. Similarly, whereas in 2010 there were 136 law schools with LSAT averages over 155, today there are 101. This year’s average bar exam score dropped by a full point. As the legal site Above the Law surmises, “we may soon see a reduction in talent in the market for associates.”
To the extent that applicants with lower scores come from disadvantaged and diverse backgrounds, they bring an altogether different understanding of reality to their work.
More strident critics interpret declining LSAT scores as evidence of favoritism, either through political connections or affirmative action. Watchdog.org — a conservative non-profit “dedicated to the principles of transparency, accountability, and fiscal accountability” — took umbrage with students accepted to the University of Texas Law School with low scores. In 2014, it wrote, “Dozens of students admitted to UT Law in recent years have scores on the Law School Admissions Test, or LSAT, that are below the standards of the lowest ranked law schools in the country.” As if initiating a witch-hunt, its headline screams, “Who Got the 128”? After gathering the LSAT scores of applicants who later failed the bar exam twice, Watchdog.org (appallingly) wrote: “Of the 122 names, 47 were Hispanic; the states Hispanic population is 35 percent of the total. Fourteen students applied to TSU [Texas Southern University], a historically black college.”
When assessing this situation, the usual caveat applies. It has long been known that the LSAT, like nearly all standardized tests, is a biased exam. William C. Kidder, who has studied LSAT bias for decades, writes, “among law school applicants with essentially the same performance in college, students of color encounter a substantial performance difference on the LSAT compared to their White classmates.” He adds: “It is always important to recognize the myriad historical and institutional barriers that have inhibited the educational attainment of students of color in the United States.” The LSAT, Kidder reiterates, “creates an unequal playing field that favors whites dramatically.” The arguments made by Kidder for race have been made by others for general socioeconomic disadvantages as well.
This bias is, of course, a critical point to remember. But often overlooked in the overwhelming emphasis on LSAT bias is the possibility that the applicant diversity reflected in lower LSAT scores could benefit the legal profession — as well as those who desire access to it. To the extent that applicants with lower scores come from disadvantaged and diverse backgrounds, they bring an altogether different understanding of reality to their work. That understanding is often tougher, more flexible, and reflective of a wider range of on-the-ground life experience — experiences that are closer to those of real people rather than the pampered elite. A more diversified legal profession — one that expands beyond well-schooled, economically prosperous, test-taking rule followers — could very well make legal services more accessible to more people for more causes.
Naturally, I’m thinking here of Monica. Kidder, in his research on LSAT bias, noted how “the LSAT decisively stratifies opportunity by race even among law school applicants who have (sometimes poignantly) overcome obstacles ... over four or more years of college.” Despite spending more time in city council meetings and in correspondence with legislators and officials from the transportation department than with her books, Monica graduated with a B average. She quickly got a job with an urban planner.
For those worried about declining access to the “finest legal talent” — as reflected in high test scores and class rank and numerous review articles — rest assured that the old school talent will be swept up and consolidated and made available to protect old school interests. Clarke, for his part, graduated with distinction and is working as a corporate lawyer making more in an hour than Monica’s family makes in a week. If I were a hedge fund manager seeking a loophole, I’d go to Clarke. But if I was suffering an injustice and needed someone to understand my suffering, know how to help, and be willing to go the mat in a real way, Monica would be my attorney.
Unfortunately, that’s a choice I currently do not have. Monica recently learned that she was not accepted to any of her law school choices. Her LSAT scores were too low.