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Proposal to Forbid Law Schools from Relying on the LSAT:

Here are details of a proposal to prohibit law schools from relying on the LSAT, because of the "disparate impact" the test has on African American and Mexican law school applicants. This proposal will be brought to the relevant ABA committee in June. I wouldn't normally give this a snowball's chance of passing, but who would have thought that the relevant ABA committee would pass a proposal that blatantly misconstrues Grutter and requires law schools to disobey the law, all in pursuit of "diversity"?

There are three noteworthy oddities in the memo (by Prof. Vernellia Randall) accompanying the proposal. The first is that it states that the "LSAC recently reported that virtually no law school is implementing Grutter." Given that all Grutter did was allow (but not require) law schools to use racial prefernces to achieve racial diversity if they have determined that racial diversity is a compelling educational interest, it's not clear what "implementing Grutter" could possibly mean. My best guess is that Prof. Randall (who is webmaster of the bizarre "Whitest Law Schools" website) seems to associate Grutter with the idea that every law school should have a "critical mass" of Black and Latino students. Grutter certainly allows law schools to pursue a "critical mass" under the circumstances noted above, but doesn't require them to, and indeed forbids it for reasons other than the "diversity as a compelling educational interest" rationale.

Another oddity is the claim that law schools are relying too heavily on the LSATs at the expense of minority students to raise their ranking in U.S. News, which uses schools' LSATs in its ranking. (She writes: "Perhaps the most pervasive reason is that many schools are undertaking a crude attempt to increase their ranking in the U.S. News and World Report at the expense of admission of minorities.") I've heard this claim often, and I'm sure that part of what is motivating the ABA's recent aggressive actions against law schools without "enough" minorities is the view of some professors that law schools who aren't taking their "fair share" of African-American students are shirking, and are benefitting in the US News rankings at more "progressive" (what is progressive about admitting and then failing out Black students?) schools' expense.

This view, however, neglects how U.S. News works. Average LSATs are irrelevant. Rather, the magazine has traditionally looked at median LSATs (last year they switched to 25 and 75 percentile scores). If you simply replace your lowest LSAT white students with even lower LSAT Black or Latino students this will have no effect on your median (or 25th or 75th percentile, unless a school already has 25% plus Blacks and Latinos) LSAT. Thus, schools that do not engage in vigorous affirmative action preference policies are not getting any meaningful competitive advantage from U.S. News.

The third oddity is the concern only with inputs (number of minority students being admitted to law schools) and not with outputs (how many actually graduate and pass the bar). As I've noted before, at many law schools more than half of African American matriculants never become attorneys. Shouldn't this problem be dealt with before requiring law schools to change their standards to favor even less-academically ready applicants?

Adam J. Morris (mail):
The language requested states:


IN PARTICULAR, SCHOOLS SHALL NOT USE AN ADMISSION POLICY OR PRACTICE THAT HAS THE EFFECT OF DISCRIMINATING ON THE BASIS OF RACE, COLOR, RELIGION, NATIONAL ORIGIN, SEX, OR SEXUAL ORIENTATION UNLESS THAT POLICY OR PRACTICE HAS BEEN PROVEN BY OBJECTIVE EVIDENCE TO BE VALID AND RELIABLE IN ASSESSING AN APPLICANT'S CAPABILITY TO SATISFACTORILY COMPLETE THE SCHOOL'S EDUCATIONAL PROGRAM.


Given that the LSAT has been shown to be the most accurate pre-admission indicator of success in passing the bar, and given that passing the bar would seem to be part of satisfactorily completing a law school's educational program...

Hasn't the objective evidence already proved that reliance on the LSAT is valid and reliable?
3.2.2006 8:18pm
The Drill SGT (mail):
Another demonstration that one can't regulate(legislate) away fundamental laws of mathematics and economics
3.2.2006 8:19pm
Been There Done That:
If they're going to get rid of the LSAT because of its "disparate impact" on Blacks &Mexicans, will they then get rid of Bar exams? Probably! All must kneel at the altar of "intelligence is equally distributed among humans without regard to [insert favored category here]"
3.2.2006 8:20pm
The Drill SGT (mail):
One wonders if you extrapolated from eliminating LSAT to eliminating that other great barrier to minority professional attainment, the professional exam (e.g Bar exam).

Then went one step further, abolished the same racist practices in Medical schools and licensing that the ABA seems to be trending. Me thinks that none of the ABA lawyers would want their Doc to be screened, schooled and certified in the same fashion. That leads me to a joke.

You call the lowest academically ranked West Point Grad the class "Goat".

Question: What do you call the lowest ranked medical school grad?

Answer: Doctor
3.2.2006 8:33pm
guest1:
Given the shrill tone of this series of posts (posts which I agree with), it would be refreshing to hear your ideas about why minorities are under-represented at law schools and how to fix that problem. Concentrating your energies on why law school is not the appropriate place to remedy any inherent racism might carry more weight if you acknowledge the problem (or argue that there is no problem).
3.2.2006 8:38pm
Kovarsky (mail):
DB, Generally agree with you, but one thing:

This view, however, neglects how U.S. News works. Average LSATs are irrelevant. Rather, the magazine has traditionally looked at median LSATs (last year they switched to 25 and 75 percentile scores). If you simply replace your lowest LSAT white students with even lower LSAT Black or Latino students this will have no effect on your median (or 25th or 75th percentile, unless a school already has 25% plus Blacks and Latinos) LSAT. Thus, schools that do not engage in vigorous affirmative action preference policies are not getting any meaningful competitive advantage from U.S. News.

That is incorrect. The 25%ile lower bound will shift anytime a white student that would have been above that value is removed from the admissions pool and replaced with someone with an LSAT value below that bound. That is true without regard to the existing racial composition of the admissions pool. Assume that you are a school, and your 25%ile score is 160, but you only have two minority admits (out of 300), both with a score of 150. If a third minority candidate comes along with a 150, the 25%ile drops anytime they replace another White candidate above a 160.

You are assuming (and I believe incorrectly) that minority admits with lower LSAT scores always replace the White admit with the next-lowest LSAT score. That is not the case, given my understanding of admissions.

The LSAT is such a poor indicator of so many subsequent values (grades, job placement, bar passage, etc.) that it is frustrating to a great many people. But people never ask "as compared to what?" And, sadly, there's not to many other objective measurements that predict those other attributes particularly well.

I do think, as a statistical matter, you are putting too much emphasis on the failure of many minority matriculants to become attorneys. Your assertion seems to be that this phenomenon stands entirely outside of the LSAT's alleged causing of it. My instincts say you're probably right, but you would certainly need a control group of some sort before concluding that there was not a causal relationship between the LSAT poor/culturally biased fit and the failure of minority applicants to become attorneys.
3.2.2006 8:50pm
DavidBernstein (mail):
Guest, I previously gave suggestions for increasing the number of minority attorneys--making law an undergraduate subject, abolishing the bar exam. I'm not going to speculate as to why certain groups do worse on the LSATs than others, that's not my problem. My problem is that I'm a law professor, and I think that (1) obeying the law is important for law schools and (2) admitting students whose statistical probability of graduating and becoming attorneys is slim is moraly problematic at best, especially if they are not warned of that fact, yet there is a move on to force law schools that have this concern to do it anyway. These concerns make me "passionate", not "shrill." :)
3.2.2006 8:52pm
Kovarsky (mail):
Those same comments would make Hillary "shrill," though.
3.2.2006 9:04pm
Walker (mail) (www):
Looking at Prof. Randall's website, I have noticed that few of US News' top law schools have student bodies whose percentage of white students is significantly deviant from the percentage of white students who apply to law school altogether. Yale admitted a smaller percentage of white students than the percentage of white applicants to law school; Harvard and Chicago are only slightly higher than the white applicant percentage; the top ten "most-white" schools are mediocre institutions for the most part. Given these statistics, it seems that law schools are implementing Grutter by recognizing diversity as an important educational element. The better law schools have a comparative advantage, of course, in getting more (and more talented) students of diverse race. That's why better law schools will see change more quickly than less highly ranked schools.

Also, their is an unrecognized locational bias in Prof. Randall's assessment. Would you really expect Montana, Maine, or Idaho Law Schools to have high minority enrollment? (These are three of the four "whitest" law schools.)

I certainly can understand the desire for the percentages of students of all races who apply to an individual law school to correlate closely with the percentages of students admitted to that individual law school. I can also understand the desire for percentages of all races of students graduating from law school and all races of students passing the bar to correlate with the percentages of those races who attend law school. That sounds like a fine goal to me.

But the LSAT is not a racist test. (Could it be? I would be very interested to hear someone who thinks it is a racist test make their case.) It seems to me that Prof. Randall wants to remedy a symptom of a problem (the symptom being African American students' and Latino students' lower academic performance) instead of looking for the problem itself. The problem may very well be racism, encountered by these students from childhood onward. It may also be a economic or even cultural problem. But throwing out the test that is the best indicator of success in law school and success on the bar exam that we have (without proposing an alternative) to alleviate a symptom of a greater problem, seems short sighted in the extreme to me.
3.2.2006 9:04pm
Confused:
My understanding is that there's a liberal view that Grutter / Gratz demand that within 25 years, discrimination be eradicated. See, e.g., Lani Guinier's Foreword in the HLR a couple years back.
3.2.2006 9:06pm
herb manners (mail):
"If they're going to get rid of the LSAT because of its 'disparate impact' on Blacks &Mexicans, will they then get rid of Bar exams?"

This sentiment may not be as marginal as it might seem at first look: Certainly, laws against violent crime up to and including murder, drugs offenses, and the so-called quality-of-life violations have a disproportionate effect on blacks and Latino-Americans (I could mention the Hells Angels and other motorcycle gangs, but that would muddy the waters).

Should the aforementioned laws be abolished, that is to say, should we not punish abberant behaviors because approved groups embrace them?
3.2.2006 9:08pm
Kovarsky (mail):
DB,

I hate to harp on this, but:

(2) admitting students whose statistical probability of graduating and becoming attorneys is slim is immoral, especially if they are not warned of that fact.

I don't think that's quite right: I think that "admitting students whose statistical probability of graduating and becoming attorneys at the expense of others who are more likely to do so is immoral..." represents a more accurate statement of the issue, but it also lays bare some of the problems with the position:

(1) what if the depression in attorney probabilty is a RESULT OF the LSAT

(2) as a factual matter, the appropriate comparison is not between the fraction of minority matriculees that become attorneys and the fraction of white matriculees that do so, but between the fraction of minority matriculants that gain spots and the fraction of White matriculants that they could lose them to.

Lee
3.2.2006 9:09pm
Greedy Clerk (mail):
As I've noted before, at many law schools more than half of African American matriculants never become attorneys. Shouldn't this problem be dealt with before requiring law schools to change their standards to favor even less-academically ready applicants?

For once, I really agree with DB. Fact is, assuming DB's stats are true, we got a real problem --- a huge % of African-American's not graduating law school who have been admitted. This could be the result of a couple of things: (1) African-Americans are not prepared because of a culturally biased lower school system; (2) African Americans are not prepared because the law school curiculum itself is culturally biased; (3) the overall legal system is itself culturally biased and the law schools reflect this. But trying to use a bandaid by just saying let's throw more into a system which is getting the job done is stupid and a feel good measure which causes more harm than good.

3.2.2006 9:10pm
DavidBernstein (mail):
Kovarsky,

I think we can both agree that a school that wanted to continue its AA policies without affecting its median LSAT could do so.
3.2.2006 9:13pm
Greedy Clerk (mail):
Well, I do find it odd that DB finds it necessary to respond to a comment calling him "shrill" but could care less about the fact that 2 out of 3 of the first comments were pretty much out and out racist.
3.2.2006 9:13pm
DavidBernstein (mail):
K, you're right about the relevant comparison, and I don't have the data except that I know that relevant overall stats are much worse for African Americans than whites. But I'd say that same thing about a school admitting white applicants who have little chance of becoming lawyers. The FTC and Dept. of Education shut down cosmetology and other trade schools in which most of their students fail to get licensed, no?
3.2.2006 9:19pm
Kovarsky (mail):
Walker,

All due respect, the argument is not that the test is "racist." I happen to disagree with inferences the argument's proponents would have us draw, but the notion that the LSAT has a disparate impact is hardly that crazy. The problem, after all, is "what can we really do about certain racially disparate consequences."

The argument is familiar: the test trafficks in standard written english, which is just a dialect with an army and a navy; success on the exam correlates with class (because of tutoring) which correlates with race; the logic games tend to traffic in symbols (e.g. european film directors) that are more familiar to whites, etc.

Despite your protests, I'm not sure how many people dispute that there actually is some statistically significant disparate racial impact. The problem is that there's no real way to correct for that phenomenon without making all kinds of other sacrifices.

So I don't think anybody is really claiming the test is "racist" in the sense that it deliberately discriminates, but are instead making the claim that it implements a practice with disparate racial results at an unacceptable opportunity cost.
3.2.2006 9:19pm
Chris S.:
BTDT: Why is eliminating the bar exam as a requirement to practice an idea that somehow should be seen as ridiculous on its face?
3.2.2006 9:24pm
Walker (mail) (www):
K, fair enough, let's assume no one thinks that the LSAT is a racist test. (I didn't really expect anyone does.) But let's assume that some races as a whole do worse on the LSAT than other races. I think we could say the test is racially biased if we thought all races should perform the same on it. Should we expect that to be the case, when all races in the US achieve differently on all standardized tests, on the bar exam, in terms of reading proficiency, and so on? I think you'll agree that it isn't the LSAT that is racially biased, but rather the level and quality of education achieved well before the LSAT is taken. That's what gets me to the point that Randall wants to fix a symptom of a greater problem. Of course there is the argument that by admitting an equal percentage of all races of candidates, there is the trickle-down: those students who got the helping hand become professionals whose children get better education and don't need the helping hand. I would agree, except for the stats that DB threw out earlier: if the result of admitting minority students who have lower LSATS than other students (that is to say minority students who would not have been admitted by a racially blind admissions board) is that these students empirically have significantly higher chance of failing out of school or of not passing the bar, then I think the benefit to the "real problem" of discrepancy in primary education is totally lost. Long story short, Randall, I think Randall is misguided. Improving underachieving public schools and increasing parent responsibility should be Randall's primary goals.
3.2.2006 9:29pm
WB:
Page 6 of this .pdf file has all of the answers. If the LSAT is "racist," then it should be made less so, not thrown out.
3.2.2006 9:34pm
Kovarsky (mail):
DB,

I'm not going to pretend as though I'm not, as a policy matter (to be distinguished from a constitutional one), in favor of AA, because I am. I am also very subject to being swayed with data about things, so I am pretty receptive to it. I think it is a problem that successful minority candidates aare sometimes stigmatized as having gotten where they are on the basis of skin color rather than merit, and I think there are a variety of other counterveiling considerations. It's a tough question.

Having now revealed both my ultimate political position and my preference for untainted data, I can't agree with the position that bar passage rates reflect actual attorney quality. Sure, the two are correlated, but bar certification is subject to many of the same biases the LSAT is - and in many instances it is worse. For example, assume that race correlates with income which correlates (very, very strongly) with ability to take bar test prep. The ability to take a three thousand dollar test preparation course is a dramatic, overwhelming advantage - and an advantage the enjoyment of which correlates with income, which in turn correlates with race.

I am not saying that the takeaway from this phenomenon is to abolish the bar, but to the extent that you are relying on the "they don't become attorneys" logic to undercut the AA argument, you've got to remain mindful of the profound statistical biases that go into bar certification as well.

Again, I don't know what to do about the problem - but I wouldn't base my argument that we shouldn't do anything about LSAT biases on the idea that bar certification rates accurately depict the quality of minority attorneys relative to their white counterparts.
3.2.2006 9:35pm
JDNYU:
C'mon, DB, this still doesn't have a snowball's chance of passing. What's the point of writing 500 words on Randall's latest silliness? You were flogging her about a month ago. There are plenty of dumb liberals; leave them to instapundit. I thought the VC had higher standards.
3.2.2006 9:38pm
Walker (mail) (www):
K -- explain two things to me that I don't understand:
1- What do you mean by "a dialect with an army and a navy"? Do you think we could gear the LSAT to be written in a dialect that would be more race neutral? Do you think mastery of the English language is an important skill for being a lawyer in this country? (I don't care what language we use, but it seems to me, in application to the legal profession, the prevailing language should be as universal as possible, with words having the same (or as similar as possible) meanings to all practitioners of all races.
2- My logic games on the LSAT were about children in a hispanic family, with traditional hispanic names, and (I think) who sat where at the table on what day. I am not hispanic. Should I have expected to do worse on this logic game than the one about dinosaurs? Let me add, I love dinosaurs.
3.2.2006 9:40pm
The Drill SGT (mail):
Kovarsky,

I hear your argument about underlying cultural bias in standardized testing and it some level you are probably right. HOWEVER

1. Though it's not well correlated to Law school success, I understand that the LSAT is the best correlated measure thus far found, which is why it is used.

2. One could clearly make a better case for the cultural bias of the equivalent medical screening tests MCAT (or whatever) as it relates to the practice of medicine. After all a human body is a human body whether in Persia, Peru, or Peoria. However, like it or not, the practice of law In the US is the practice of standard written English. Legal practitioners that have a poor comprehension of standard English, or can't express themselves well in written or oral communication in standard English will fair poorly (and so will their clients) compared to those that can.

In this sense, the LSAT as a cultural test of English does serve like those screening tests for the fire department hated by 100 pound women. You know, the carry the 200 pound partner on your back down a ladder tests. Some tests are unfair and others just produce results that aren't PC.
3.2.2006 9:40pm
guest1:
DB: According to the ABA, less than 10% of attorneys are minorities. Historical reasons (the population of older attorneys) can explain some but not all of this low percentage: 6.6% of law students are African American and 5.7% are Hispanic (they comprise 12.9% and 12.5% of the US population, respectively). You identified 2 problems that concern you, but why don't you consider minority representation a problem?

I also find your recommendations strange. You suggest either making law an undergrad subject or doing away with the bar exam - both of which would presumably lower the standards for admittance into the bar. This could lower the quality of lawyers without necessarily addressing the problem of minority representation.

Thanks for the response above.
3.2.2006 9:43pm
Kovarsky (mail):
Walker,

Re: Randall, agreed. I think abolishing the LSAT is asinine. All that will do is shift emphasis to other variables that exhibit even more bias. It's not a particularly thought out position, I don't think.

But this statement:

I think you'll agree that it isn't the LSAT that is racially biased, but rather the level and quality of education achieved well before the LSAT is taken.

I'm sorry, I don't really agree with that, at least as I understand it. I do agree that this country's educational assets are not only unevenly distributed, but are unevenly distributed in a way that correlates with race. But your proposition seems to be that the test does nothing more than replicate that already-existing inequality of educational assets. I agree to an extent. But, for example, with respect to the "standard written english" criticism, I cannot agree. I don't want to get into the crevices of theoretic linguistics here, but suffice it to say that there is a very substantial, if not overwhelming, body of scholarship that considers the rules of SWE to be arbitrary. Again, I'm not saying whether this scholarship is right or wrong, I'm just saying it's there. And, if it is correct, and differences between SWE and other dialects are not differences in quality but differences in context, then testing in SWE does in fact constitute a "bias" in favor of a particular educational background, without respect to its quality.

Again, I happen to think that a lot of that cog sci/linguistic scholarship is correct. You may not, and if you don't your statement above may be perfectly correct. But if you do - and again, this is not some wingnut left wing linguistics theory - then the LSAT is in fact biased in a sense beyond what you imply in your post above.
3.2.2006 9:48pm
Kovarsky (mail):
JDNYU,

That was not a particularly thoughtful or helpful comment.
3.2.2006 9:52pm
DavidBernstein (mail):
Guest, if you could explain to me what I could possibly do about the situation, beyond advocate the solutions I've already advocated (getting rid of the bar clearly would, btw increase the percentage of Black lawyers), I'm all ears.

I do agree with K that bar exam scores are not highly correlated to attorney quality, and that there are many people who would make perfectly fine attorneys in one way or another who don't do well on standardized tests. But you still can't escape the fact that right now, there is a cartel, and if you can't pass the standardized test, you can't become a lawyer. It's ridiculous and potentially quite damaging to the "beneficiaries" to set admissions criteria without keeping that in mind.
3.2.2006 9:55pm
Kovarsky (mail):
Walker,

K -- explain two things to me that I don't understand:
1- What do you mean by "a dialect with an army and a navy"? Do you think we could gear the LSAT to be written in a dialect that would be more race neutral? Do you think mastery of the English language is an important skill for being a lawyer in this country? (I don't care what language we use, but it seems to me, in application to the legal profession, the prevailing language should be as universal as possible, with words having the same (or as similar as possible) meanings to all practitioners of all races.

I just mean to refer to the idea that the exam tests standard written english, which is generally considered a "dialect," which is a nice-but-pejorative way for linguistics people to convey that the dialect's internal organization is not objectively "better" than other dialects of that same language. It's just different. Of course I think English is an important skill for lawyers in this country. But there are ways to test English proficiency without having that proficiency influence a test-takers score on other qualities - is a Spanish speaker really worse at logic games if their only "inferiority" is that they don't speak the language in which the game is explained? I know that I have to keep underscoring this, but I don't agree with Randall. I'm just saying that it's not an anathema to suggest that the test has a disparate racial impact. The rubber hits the road when you're talking in terms of what to about it.

2- My logic games on the LSAT were about children in a hispanic family, with traditional hispanic names, and (I think) who sat where at the table on what day. I am not hispanic. Should I have expected to do worse on this logic game than the one about dinosaurs? Let me add, I love dinosaurs.

Walker, I think I have stated several times that I don't find all the arguments about disparate impact persuasive. I was just pointing out that they were hardly new. For the record, I think the "familiar concepts in the logical games" argument is the silliest of the bunch; we're talking about formal manipulation of symbols - it doesn't matter what the symbols themselves are, just their logical relationship. That being said, and again as I pointed out above, even if I did think that this element of the LSAT created a "disparate impact," I would quite obviously never suggest that the solution would be to conduct the logic games in Spanish.
3.2.2006 10:00pm
JosephSlater (mail):
Not to nitpick, but the article doesn't propose that anyone "forbid law schools from relying on the LSAT." It argues that the current manner in which law schools use it is wrong. For example, the article notes that the LSAT scores of blacks have been rising, but the numbers of blacks in law schools have been declining, and thus argues schools are making improper use of cut-off scores.

All of those arguments may be factually wrong or otherwise unconvincing, and I'm making no claim in their defense. But these points/arguments aren't the same thing as calling for a ban on any/all uses of the LSAT.
3.2.2006 10:03pm
Walker (mail) (www):
K, I would agree with you that a bias in terms of language dialect is bad (to a greater degree) if we were considering the MCAT or Organic Chem or higher level mathematics. If students faired poorly on those tests because of the language of the test, it would be a shame.

But with the LSAT, language and standard English comprehension is substance! In law, we need to all use a language that has the same grammatical rules and the same substantive meanings. If minorities do poorly on the LSAT for failure to comprehend the language used, and the language is the standard language of our legal system, than this is indeed a clear indicator that those minority students will not fair as well in law school or in the practice of law as those people who places they took in the name of diversity. Maybe this is a sacrifice we as a society should be willing to live with, I dunno.

As long as the LSAT uses language as similar as possible to the predominant language used in our legal system, then it is still the best predictor of legal aptitude and success in the American legal system possible. Your criticisms of the language (or dialect) used lead me to believe then that it is not the LSAT you wish to change, but rather that the English we use in the practice of law should be expanded and augmented to include allm dialects. We might lose something in precision, but we would gain something in inclusion. Do you think this is worth it?

Still though, I am left with the feeling that attacks on the LSAT are a red-herring. Three reasons: one, the problem you recognize with language is a cultural and economic issue, not strictly a racial issue. (Barak Obama didn't seem to have much of a problem with the English the legal institution uses...) Two, I think the LSAT uses a solid approximation of standard English as used in the legal industry, and as I stated above with my logic games example, strives to include ideas and topics that are culturally diverse. Finally, while valuing cultural (and dialectic- no pun intended) diversity, our primary educational system should teach all people standard English. I still believe its failure to do so is the root cause of minority struggles with the LSAT's brand of English.
3.2.2006 10:08pm
DavidBernstein (mail):
Joe S., the memo compares the LSAT to standardized tests now effectively banned in employment for disparate impact reasons.
3.2.2006 10:18pm
Wintermute (www):
Waiting to see if there is indeed a "silver lining" in the Alito cloud.
3.2.2006 10:21pm
josh:
I can only speak from personal experience: I could take the LSAT 100 times and never get a "decent" score. Yet, after being admitted to a second-tier law school in Chicago, I kicked ass first year, transfered to U of Chicago for the rest and graduated in the top third of the class.

Again, couldn't get above a 160 if I tried on that test, but I sure out-performed most who did.
3.2.2006 10:43pm
canadianllb (mail):
When Americans write of race, do they refer to the cultures that are typically predominant within ethnic groups, or does race mean genetically defined factors such as skin colour?

LaShawn Barber recently noted how African immigrants to America do quite well, with their children getting in Harvard at much higher rates than so called "African-Americans" who have never been to Africa. So why does America refuse to talk about certain cultural mindsets that lead to poor academic performance as opposed to merely skin colour? Note, I am a minority and I went to college in the US and still don't understand the terminology.

See:
lashawnbarber.com/archives/2006/02/14/my-brothers-keeper/
3.2.2006 10:49pm
guest1:
Guest, if you could explain to me what I could possibly do about the situation, beyond advocate the solutions I've already advocated (getting rid of the bar clearly would, btw increase the percentage of Black lawyers), I'm all ears.


I have no idea what can be done, particularly at higher levels of education, but acknowledging that the problem exists and is a serious problem is a start. In particular, I find putting the word "diversity" in quotes is telling. Your previous remarks suggest that "diversity" is code for "affirmative action", and hence the quotes. However, it can just as equally be taken to meant "equal representation", and indeed placing "diversity" in quotes without an acknowledgement that underrepresentation of minorities is a problem suggests that either equal representation is a poor goal or is no longer a problem.

I find it interesting that you think getting rid of the bar exam would increase the percentage of black lawyers. Is this becuase blacks, when equally prepared, do worse than whites on standardized tests? If that's the case, then affirmative action is appropriate. Or is it because, without the bar exam, one could apply affirmation action at that point? In this case, why not have affirmative action with law school admissions instead of admissions to the bar? Or is there another reason for your statement that I'm missing?
3.2.2006 11:00pm
Tom Holsinger (mail):
They should also consider abolishing the literacy requirement.
3.2.2006 11:11pm
DavidBernstein (mail):
Guest, I don't want to get into a lengthy discourse on my general views on AA, etc., though if you search through (old) prior posts you'll note that I feel differently about the issue re African Americans than re recent Hispanic immigrants.
So I'll just stick to the bar issue. Right now, a significant percentage of African Americans who get through law school fail the bar, much higher than whites. If they didn't have to pass the bar,they could all be lawyers, thus increasing the percentage of African American lawyers. QED.
3.2.2006 11:14pm
hey (mail):
As to why DB believes that an Undergraduate education in law would be preferable: it would require much less of an investment, it would be relatively simple to transfer to other majors if they were not meeting with success, and there would be much less disruption to prospective students lives. Given these attributes, one could admit many more people in general, especially minorities, with little moral impact as you would be imposing few costs on the marginal applicants admitted.

Rather than having an undergrad degree, likely with a significant debtload, and then taking a 3 year, typically very expensive, law program, all with little prospective chance of graduating and passing the bar, one would be pursuing a major that enabled you to take the bar. This would be similar to Accounting where your undergrad courses (possibly with a few additional postgrad credits for some who came in from other majors) enable you to pursue the CPA accreditation without sacrificing so many years of earnings.

LSAT, graduate law school, and bar are all cartelization strategies on the part of lawyers and shuffling the deckchairs on the Titanic won't appreciably change the outcomes. As mentioned, the act of shuffling to admit more low probability passers is itself immoral.

I'm disappointed in the commenter that is saying that DB is making racist arguments: he's making an argument based on the data with regards to how we should attempt to address disparities of outcome. He is not saying that certain broad groups of people AREN'T capable of becoming lawyers or ARE LESS capable, but that the statistics show that certain broad groups of people TEND not to complete the law school/ bar exam process. Given these facts (which I am taking at face value from DB) what should be done?

He also specifically states that he is not examining why certain people tend not to graduate, but rather that given that they don't is shoving more low percentage students into the pipeline really a good thing? Seems to me that it is a further scheme by the cartel to extort money from supplicants while further lowering the population of guildmembers, thus increasing rents taken by current guildmembers.
3.2.2006 11:28pm
guest1:
DB: Right now, a significant percentage of African Americans who get through law school fail the bar, much higher than whites. If they didn't have to pass the bar,they could all be lawyers, thus increasing the percentage of African American lawyers. QED.

All else being equal, sure. It seems like you want to get rid of affirmative action, which would counter some of those gains (and given the percentage of African American law students, it would still be a problem).

Your view on that is hypocritical. As far as I can tell, you must think that either 1) the bar exam is racially biased, so getting rid of it is eliminating a social injustice, 2) the bar exam is a useless test of one's ability to be a lawyer, or 3) getting rid of the bar exam will allow worse lawyers to slip through the cracks.

If 1), then why not have affirmative action for the LSAT, which is presumably similarly biased. If 2, then you agree with the loon you are criticizing, if for a different reason. If 3, then we get to this quote:

Admitting students whose statistical probability of graduating and becoming attorneys is slim is moraly problematic at best, especially if they are not warned of that fact, yet there is a move on to force law schools that have this concern to do it anyway.

Ooops. It's morally wrong to string people who are likely to be unsuccessful along through law school, but it's morally ok to string people along who are likely to be unsuccessful for many years. Is there a 4th possibility that I am missing?
3.2.2006 11:35pm
Dave Hardy (mail) (www):
BTDT: Why is eliminating the bar exam as a requirement to practice an idea that somehow should be seen as ridiculous on its face?

One could do the flip side: assuming that the bar exam is a decent threshold test of skills needed to practice law (an assumption, I know) why is three years at an ABA-acredited school a requirement just to take it? If it sets the minumum standard, then why shouldn't anyone who passes it (with zero, or two years, or with time in a non-accredited school) be allowed to practice? If it doesn;t set a threshold, then why is it there (other than to add one more entry barrier to a profession, i.e., to try to skirt the antitrust laws?)
3.2.2006 11:41pm
Cornellian (mail):
Interestingly her "Whitest Law Schools" website counts all those of unknown race as "white" for purposes of the rankings. Hard to see the rationale for this, but then it's hard to see her rationale for a number of things.
3.2.2006 11:45pm
DavidBernstein (mail):
Guest, I don't think there should be a bar exam regardless of issues of minority representation. I don't believe in mandatory professional licensing for other fields, either. That's beyond the scope of this discussion, but I'm not making any special exceptions. And without the bar exam, everything else would change.
3.2.2006 11:47pm
JunkYardLawDog (mail):
The problem with minority educational attainment and preparation for advanced placement tests like the LSAT, MCAT, the Bar exam, etc. are much more attributable to the following factors than they are to the failure of the ABA to demand an ebonics version of the LSAT or the amount of money spent per school pupil on buildings and union teachers. The real factors that account for these differences have NOTHING to do with race/skin color as others have referenced above. Instead they have almost everything to do with the extemely poor individual lifestyle choices made more often in *certain* minority families as compared to the rate at which those same poor lifestyle choices are made in white families. Things like:

1. The rate of children growing up in single parent homes.

2. The rate of children produced by and their subsequent abandonment by teenagers and men who are in reality nothing more than irresponsible sperm donors to certain irresponsible women.

3. The percentage of families who value education in their children. Who take the time to be involved in their lives and education. Who take the time to supervise their children, make sure they are doing their homework and learning the material at school.

4. The relative percentages of alcohol and drug use by *certain* minority parents versus non-minority parents.

5. The relavtive percentages of violent crime committed by *certain* minority parental groups versus non-minority parental groups.

These are the factors much more than MONEY that result in a reduced level of preparation of *certain* minority students for standardized tests.

A second tier of factors that also has significant influence are produced by the lack of competition in primary and secondary education. Laws and regulations designed to protect professional education schools and the NEA dues machine that fund a lot of political corruption in this country with regard to education.

The lack of competition in education and the monopolies in primary and secondary education of state and local government combined with teacher's unions and tenure laws have a largely disparate and negative impact on poorer and minority students.

But hey rather than upset the big government apple cart, failing primary and secondary schools, liberal social policy experiments in public education, and NEA corruption machine why not just pretend its the fact that the LSAT isn't offered in ebonics.

One real possible effect of taking seats in law school away from whites with a better chance of passing the bar and giving them to *certain* minorities with less of a chance of passing the bar is that it will result in a higher percentage of those *certain* minorities being among the total of licensed attorneys not by increasing the number of minorities with the ability to pass the bar but by reducing the number of whites given the opportunity to enter law school and ultimately take the bar.

Lastly, why did I keep using the term *certain* minorities in my little rant above? Because as others have pointed out above there are many minorities in this country who are poor, come from poor families, have a different language when they arrive, etc. that perform as well or better on standardized tests than do the other *preferred* minorities. While these minorities share being poor, different cultural values, different languages etc. with other *preferred* minorities what they don't share with the *preferred* minorities are the negative cultural and personal lifestyle choices listed in items 1 to 5 above.

Says the "Dog"
3.2.2006 11:48pm
guest1:
DB: I understand that your motivations for getting rid of the bar are different than those addressed here. But you used it as one example of something that should be done to help eliminate racial injustice. That's not your real reason for wanting to eliminate the bar, so your using it above is a bit disingenuous. Moreover, I don't think you've even shown it would do anything to help racial inequality. If anything, it would string poor candidates out for longer, which you already said is quite questionable morally.
3.2.2006 11:56pm
Kovarsky (mail):
JYLD,

It's nice to see that you only treat minorities monolithically within an individual category, and not across them.

Wow.
3.2.2006 11:57pm
James Lindgren (mail):
The problem with the new proposal is that it confuses 2 things: the number of Latino and Af-Am students admitted, and the use of LSAT to pick which ones to admit.

To improve minority success in law school and in passing the bar, the use of LSAT should be INCREASED, not decreased. Indeed, most schools could admit more minorities than they do now while taking a little less risk than they do now, if they would just weight the LSAT more heavily in making their choices of which minorities to admit.

I strongly favor Affirmative Action in admissions, but if the LSAT is not used, then one would have to cut back on minority admissions just to keep the same (poor) rate of success in law school and on the bar as we have now. Schools should be free to choose their own levels of minority admissions, but they should emphasize LSAT more in choosing which minority applicants to admit than they do now.

The new proposal discussed in the post seems to be designed to induce law schools to do an even worse job of picking which minorities to admit than they do now.

In other words: set the level of minority admits you want for diversity reasons (most schools use about the percentage of applicants they get), but choose which individual minority group members to admit primarily by emphasizing the LSAT.
3.3.2006 12:03am
Lev:
It seems to me:

1. If, as many posts in here to date say, the primary purpose of the LSAT is to somehow test English comprehension because that is the essence of success in law school and beyond, then, shouldn't the applicants be given instead English tests, including long and short essays, as well as oral exams instead?

2. If, as some posts in here to date say, the LSAT is an indicator of success in law school and beyond, isn't it serving the same purpose as various aptitute tests in identifying and discriminating among job applicants? And are those tests "legal" since they do not relate to essential job characteristics yet have "disparate impact"?

3. What was that phrase the Census uses...."hispanic may be of any race."
3.3.2006 12:10am
Gene Vilensky (mail) (www):
Josh,

You are one person and while your experience is great, it's tough to design policies around it. Having said that, it is also possible (and likely) that the real problem is not in the students who get 158's as opposed to 167's. I think the problem is with the students who get 145's as opposed to 154's. I think that at some point, there is a cut off score, that is too low for someone to be able to do well in law school (even a bad one) and then be able to pass the bar exam. It may not be that there is great correlation between LSAT scores and law school performance. But it is possible, and I think likely, that if you score below a certain point, then there is almost no chance of doing well. Do you get my point here? It could be just an on/off condition, rather than some continuous dependence between the variables.
3.3.2006 12:16am
Gene Vilensky (mail) (www):
Sorry, let me be more precise. What I am saying is that there could be two correlation regimes. One correlation regime that is quite high on the lower end of the scale and one correlation regime beyond a certain point. Maybe when you start looking at scores 155 and above, the correlation is quite low, but if you look at scores below 155, the correlation is quite high. So while yes, the overall correlation is not good, the correlation that really matters, that on the lower end (which could signify certain deficiencies in reading, logical skills, etc) is pretty high. I am not sure if this is true, but I wonder if there is any work on this. I wonder what Richard Sander who guest-blogged here a while ago on this precise issue would have to say about this.
3.3.2006 12:20am
JunkYardLawDog (mail):
Kovarsky,

Affirmative action treats *preferred* minorities and whites monolithically. If treating groups or sub-groups monolithically is a bad to you then you must oppose affirmative action. Nothing could be more abusively monolithic in its implementation and effects.

Only a monolith supporter could support a system designed to give Clarence Thomas' son a leg up into getting into law school because he is black while applying reverse discrimination to the poor white son of an appalachian coal miner who never graduated from high school simply because that son is white.

Maybe monolithic treatment of groups and sub-groups is in the eye of the beholder? You think? If you find it offensive then you should oppose it in all its forms, especially in affirmative action.

Says the "Dog"
3.3.2006 12:23am
James Lindgren (mail):
Gene wrote:

Sorry, let me be more precise. What I am saying is that there could be two correlation regimes. One correlation regime that is quite high on the lower end of the scale and one correlation regime beyond a certain point. Maybe when you start looking at scores 155 and above, the correlation is quite low, but if you look at scores below 155, the correlation is quite high. So while yes, the overall correlation is not good, the correlation that really matters, that on the lower end (which could signify certain deficiencies in reading, logical skills, etc) is pretty high. I am not sure if this is true, but I wonder if there is any work on this. I wonder what Richard Sander who guest-blogged here a while ago on this precise issue would have to say about this.

Yep. You are mostly right. I've been pointing out part of this for nearly 10 years.

The relationship between LSAT & Law School grades is curvilinear. In each school, LSAT is a good predictor for the bottom half of the entering students, and a poor predictor for the top half of the entering students. Thus, for the very students who are on the cusp, LSAT is a particularly good predictor. The curvilinear effect is one reason that existing (linear) admission indices underweight LSAT in admissions.
3.3.2006 12:52am
Kovarsky (mail):
JYLD,

I appreciate the sentiment, but what you're saying isn't true in any meaningful sense. AA gives all minorities a leg up, but it doesn't treat them as the same as eachother. That is in stark contrast to you, who thinks that within a minority category, every constituents bad lot in life is a product of poor lifestyle choices. I'm sorry, the poor lifestyle choices argument is so profoundly stupid that people that make it should be flogged. As if a young black kid from New Orleans' 9th ward made any choice about her mom being poor, or her dad not being there, or her older brother stealing money for drugs, or her school having no funding or teachers, or a hurricane obliterating her only semblance of support. What is so bizarre about the "lifestyle choices" argument is that is always seemingly invoked to hold children accountable for precisely those choices over which they have the least control, as if they should be accountable for choices their parents, siblings, government, and mother nature made.
3.3.2006 12:57am
Kovarsky (mail):
James,

Except that I believe the LSAT and I know law school grades are based on curves with fixed standard deviations. On the top end of grade distributions, then, it takes a huge difference in work quality to climb from, say, an A- to an A. Given the bunching of a pretty broad spectrum of quality in a specific grade, it's not surprising that the LSAT doesn't predict grades well at the high end. But it's not for the reason that some imply - that the LSAT is a poor predictor of work quality - it's because of the way raw scores on tests are forced into grades on the outer wings of a bell curve.
3.3.2006 1:07am
Kovarsky (mail):
JYLD and everyone else,

I hope it's also clear that I'm saying it is the role of government or educational institutions to compensate an individual for the way her lot in life reflects the poor choices of others, but it's toxic in the utmost to pretend that her predicament is any product of her exercising her own free will.
3.3.2006 1:09am
Walker (mail) (www):
Lev, The English we use in our court system and in law schools is far from perfect. It is often overly complex, prolix, and rarely beautiful. Many normal people could not readily grasp Richard Posner's meaning. However, for the American legal system and thus for American law schools, we have to have some base level of English language comprehension. (Thus the "reading comprehension" section on the lsat.) The fact that the LSAT asks all of its questions in standardized English may be a high enough bar to achieve the level of mastery over the English language necessary to ensure potential for successful learning at law school. One need not understand complex grammatical rules to have a sufficient ability with language. (I am an example of this. :) But, as far as your suggestion of English tests or speaking tests for law school admittance, I think there are a number of similar barriers both before and during law school that alleviate the need for your suggestions. These include application interviews (it would have been hard to get admitted if I only spoke spanish, or ebonics for that matter) and application essays, as well as in-class performance based on my speaking ability, moot court performance, and memos, papers and exams galore. While these may not have been graded as harshly as an English paper in terms of grammar, they are certainly cogniscent of grammar, spelling, style and persuasiveness. I have seen how hard a 3 hour in-class exam can be for an LLM who is not a native English speaker when competing against regular law students. I think the LSAT's use of standardized English is entirely appropriate. If your eduation (both culturally and in the class room) has left you incapable of reading and comprehending the questions on the LSAT, then I cannot imagine how you would fair on law school exams.
3.3.2006 1:15am
Mobius (mail):
First, let me join the anti-LSAT group by saying even though it is a measure of future performance it is not reliable by any sense of the word. I have met a few people that scored below the 25th percentile (only some of them are minorities) that are now in the top 30% of the 1L class. Sometimes hard-work overcomes "intelligence". Additionally, I have never seen any data that correlates LSAT scores and grades in law school. The LSAC doesn't publish those numbers, the ABA doesn't publish those numbers, nor do law schools publish those numbers. Now, I'm not saying that we should get rid of the LSAT; I just think the LSAT should either be (a) rewritten to better reflect reality or (b) given less weight in admissions.

Second, I agree the ABA is following a path in oblivion. Forcing law schools to admit unqualified students will not remedy the lack of representation in law firms. Law firms have clients that pay a lot of money for quality work. This forces law firms to recruit the most qualified students that have a long record of success and academic excellence. Allowing students to enter law school without a record of achievement is setting those students up for failure once they hit the real world. Minorities would be better served by offering them a rigorous academic life starting in grade school. In the alternative, submitting prospective legal students to a rigorous academic prep program in their undergraduate years.

But, minority representation in the legal community, specifically law firms are terrible. Even in liberal Seattle, minority representation barely reaches 10%, and this is after a decade of affirmative action initiatives. It's embarrassing when the military does a better job at recruiting and promoting minorities than the legal community. My first three Sergeant Majors (the highest enlisted rank) were all minorities (2 African-Americans, 1 Hispanic). My first Commanding General was a minority (African American). I still have yet to meet a minority partner at a large law firm in Seattle.

I think one of the successes of the military in recruiting and promoting minorities is that they start off with a completely clean slate when they enter. Their past is not held against them. The only thing that matters is performance now. Additionally, they are trained in a challenging manner. They must live up to standards and when they fail, they are given remedial training until they can meet the standard. I believe this supports my assertion that we should offer rigorous academic preparation early in a student's education, and when they fail, hold those students to standards, but provide remedial training until they meet that standard.

"So what" some may ask about the lack of minorities in the legal community. That's the million dollar question… I'll leave that up to the social theorists.
3.3.2006 1:29am
JunkYardLawDog (mail):
Kovarsky

AA gives all minorities a leg up, but it doesn't treat them as the same as eachother.

It absolutely does, it gives them all as a group the benefit of the AA program without looking into individual circumstances. It also treats all non-minorities as the same as each other, as regards the application of benefits and detriments of the AA program.


That is in stark contrast to you, who thinks that within a minority category, every constituents bad lot in life is a product of poor lifestyle choices.

You are wrong. I didn't say nor do I think poor personal choices cause poor lots in life for any minority category only. I think poor personal choices cause poor lots in life for EVERYBODY in EVERY category. What I said was minorities make these choices in larger preportions of their total population as do other groups and it is this larger percentage of bad choice makers that results in the larger percentage of minority persons prepared to take standardized tests not administered in ebonics.

We are all responsible for the choices we make in life. Those who choose to be irresponsible and to conceive and raise children in an irresponsible manner give their children a substantial disadvantage in life. It is not the responsibility of a poor white kid from parents who didn't graduate high school but made less poor choices in life with regard to child rearing to pay the price, via reverse discrimination, for the poor lifestyle choices of other irresponsible minority parents.

In this country there is absolutely no excuse for trans-generational poverty to exist. Any person or generation can find themselves being poor for some period of time, but if they make proper life choices and care about their children's futures, then no matter how low their beginings they can make choices that guarantee their children will have more wealth and more income than they enjoyed. By the third generation a share croper's grandchildren can be attending Harvard in this country.

All they have to do is work hard, never give up, never give in to the professional negativists who tell them they and their children can never succeed, and each generation will build more wealth and income than the previous one. Show me any family from any group that fails to build wealth and income levels from generation to generation, and I will show you a family that has something wrong with their work ethic and lifestyle choices.

The only thing stupid about this observation is its denial by those locked in to the same old failed thinking that perpetuates lack of responsibility and an endless cycle of poor choice makers producing future poor choice makers. Poor choice makers claiming perpetual victimhood is the reason they fail from generation to generation and not their life decisions to buy expensive chrome rims for their junker car while neglecting to provide better supervision and opportunities for their children.

Neither of my parents graduated from high school. My father was a construction worker all his life. My parents didn't know what an SAT exam was much less why a person would ever want to take it. No person in family had ever graduated from college before I did it.

I had no money from my parents. No help from anybody. No government aid. No school loans. I worked full-time during the day and went to school full-time at night. I had to test out of extra courses in order to complete my first degree in 4 years to keep up with my peers from more well to do families. I completely supported myself and paid in cash all my tuition and books, etc. as I went through school. There were many kids my age who didn't sacrifice and work hard, and who chose to go to work at some factory job or something. They had money to buy a new car and go out and do things from time to time. I lived on baloney sandwiches, a single pair of canvas slip on tennis shoes, a couple pairs of slacks, and a few T-shirts and knit shirts.

When I graduated college and started making a lot more money than the people who chose not to make any sacrifice but to work in a factory for immediate financial gratification, I suddenly began to hear comments about how easy I had it making good money working in an office as though it was just LUCK that put me in that position.

Those same people weren't anywhere to be found stating how envious they were of me working full-time carrying hide a beds up to 4th floor walkups in Chicago while driving a 10 year old piece of junk car around town to my full-time night school classes.

When they were going out and spending money on wives and dates, they weren't around being jealous of the big night outs we had on rare occassions when we would gather with a few similarly situated friends to watch TV and play pool on a 2ft. kid game pool table owned by one in the group lucky enough to have come into possession of that 2ft kid game pool table.

In this country, no matter what bad hand life deals you, YOU CAN EITHER CHOOSE TO MAKE YOUR LIFE AND THE LIVES OF YOUR CHILDREN BETTER OR NOT. In this country you can choose to sacrifice current rewards for greater future rewards. Its everyone's choice to make no matter what their lot in life at the beginning. If they make good choices either they or their children and grandchildren can be rich or going to Harvard and Yale or some other good school for their educations.

Anyone who writes to someone like myself who has lived the american dream in this country or someone who is a wealthy high school graduate only entrepreneur that started with nothing and no relatives in this country that they are profoundly stupid for understanding that lifestyle choices and personal responsibility are the single biggest factors to success in this country is someone who is themselves pontificating in a profoundly stupid manner about things that are merely theories and abstract concepts to their own lives. The magic of this country and the opportunities it provides to anyone of any race who are willing to make good life choices and to work hard for themselves and/or their children's benefit are the reasons why more people of color line up to enter this country every year than any other country in the history of the Universe.

I've seen many blissfully ignorant comments in my life. None quite so profound however as your profoundly dismissing the effects of lifestyle choices and personal responsibility on trans-generational wealth building within families of any race or creed.

Knows the "Dog"
3.3.2006 1:51am
Kovarsky (mail):
It absolutely does, it gives them all as a group the benefit of the AA program without looking into individual circumstances. It also treats all non-minorities as the same as each other, as regards the application of benefits and detriments of the AA program.

Um, that is simply incorrect. You can bestow benefits upon an entire group without necessarily treating each constituent of the group as fungible. You are just wrong here, with all due respect.
3.3.2006 2:25am
Kovarsky (mail):
It is not the responsibility of a poor white kid from parents who didn't graduate high school but made less poor choices in life with regard to child rearing to pay the price, via reverse discrimination, for the poor lifestyle choices of other irresponsible minority parents.

You just spent 8 paragraphs and 3 minutes of my time arguing with a point I quite expressly said I was not making.
3.3.2006 2:27am
Kovarsky (mail):
Those same people weren't anywhere to be found stating how envious they were of me working full-time carrying hide a beds up to 4th floor walkups in Chicago while driving a 10 year old piece of junk car around town to my full-time night school classes.

I drive a '98 chevy prism, and my muffler has been tied on with a hanger for upwards of a year.

How you like THEM apples?
3.3.2006 2:29am
Dan Simon (mail) (www):
Right now, a significant percentage of African Americans who get through law school fail the bar, much higher than whites. If they didn't have to pass the bar, they could all be lawyers, thus increasing the percentage of African American lawyers. QED.

This is a cheap dodge. Without mandatory accreditation, private, independent accreditors would inevitably spring up, because people need to be able to distinguish competent lawyers from incompetent ones. Although these private accreditors' criteria might vary somewhat from those of today's bar associations, there's every reason to believe that they'd hardly be more willing than today's bar associations to accredit members of minority groups--or anyone else--who are incapable of passing today's bar exams.

We would therefore be in exactly the same position as we are today, in terms of minority representation among active lawyers--except that David Bernstein, instead of sneering at government-mandated accreditation, would be defending the rights of private accreditation services.

Like David, I vehemently oppose the ramming of racial preferences down the throats of academic institutions. But unlike David, I don't pretend that the magic elixir of privatization will solve the problem (if it is indeed a problem) of professions whose racial composition doesn't precisely match that of the population at large.
3.3.2006 3:36am
Kovarsky (mail):
Although these private accreditors' criteria might vary somewhat from those of today's bar associations, there's every reason to believe that they'd hardly be more willing than today's bar associations to accredit members of minority groups--or anyone else--who are incapable of passing today's bar exams.

David is responding to my point, that the bar exam favors otherwise equal candidates on the basis of ability to pay (3000 bucks for barbri). Because of the plain-as-day income bias, there is an undeniable related racial bias in the process as well. Of course we would have the same problem with private accreditation services - because they would also be profit maximisers willing to sacrifice some objective measurement in favor of a bottom line. I have no earthly idea, however, how you get from the proposition that private accreditation services would do the same thing, to the proposition that it is appropriate that a public accreditatorial entity do that as well.

Don't get me wrong - there may be no way to measure attorney quality without having an exam you can get a leg up on by spending 3 grand - but that condition has absolutely nothing to do with the fact that private services would behave the same way.

Am I misunderstanding your point?
3.3.2006 3:58am
Brett Bellmore (mail):
Kovarsky, could you try to use "bias" in a more conventional sense? By your current usage of it, blood tests are racially "biased" because they stubbornly show blacks to have sickle cell anemia more often than whites. Whereas an "unbiased" test apparently must show equal results for different races, even if those races actually differ.

The LSAT is not racially biased AT ALL: Two otherwise identical candidates who happen to be of different races will, upon taking the LSAT, get the same score. Because the LSAT has no way, whatsoever, of measuring someone's race.

It may be biased on the basis of English comprehension, facility with logic, and any number of other basis which have some correlation with success as a lawyer, but none of these biases are "racial" bias, even if races statistically differ on these axis.

Finally, destroy every measure which stands in the way of blacks becoming lawyers in equal percentages as whites, without adressing the underlying causes that ACTUALLY were responsible for the difference, and people will quite rationally avoid black lawyers like the plague, because by destroying a meritocratic system of generating lawyers, you will have created a situation where a lawyer's skin color is a reasonably accurate proxy of their competence as a lawyer.

That's the cost of abolishing meritocracy, to get crude statistical equality: You will encourage public racism, by making it rational.
3.3.2006 6:57am
jallgor (mail):
Greedy Clerk Wrote: "a huge % of African-American's not graduating law school who have been admitted. This could be the result of a couple of things: (1) African-Americans are not prepared because of a culturally biased lower school system; (2) African Americans are not prepared because the law school curiculum itself is culturally biased; (3) the overall legal system is itself culturally biased and the law schools reflect this."

Are these really the only three possible reasons? I personally have a belief that students who perform well educationally do so not because of good schools but because of good parenting or, more accurately, a parental focus on schooling. As an example, my parents were teachers, I rode to school everyday with the son of a plumber and contractor whose fathers made about 5 times more money than my dad. Both kids did very poorly in school because in my opinion (and I have lots of anecdotes to support this) the value education was not stressed in their homes.

I have heard the statistics on minority performance on the LSAT and the SAT. I would be interested to see a similar statistic based on a parent's level of education. I bet you'll see similar low performance on average for student's whose parent's dropped out of HS and rising performance as the parent's level of education rises. I realize that if fewer black and hispanic parents went to college or beyond it is very likely the result of discrimination in past generations but I think that someone should consider the notion that low test scores for minorities may not reflect a current cultural bias but may be a legacy of past bias. If I am right, perhaps the most useful approach would be to attack this problem in the home and this would apply to all races.
3.3.2006 9:08am
Bruce Hayden (mail) (www):
Interesting that I just read Brett' comments on the effect of perceived quality of attorneys based on skin color if it became known that they had to meet less strict standards to become attorneys.

A friend of mine worked for some time teaching surgical residents how to do, for example, heart surgery. He failed on resident, not for trying, but because he just couldn't hack it. He didn't have the hands or the concentration for that type of surgery. If he had been white, it would have ended there - the resident who couldn't hack it as a heart surgeon would have gone into a specialty that, for example, didn't require the type of hands that this one did. But, he was Black, which meant that he couldn't be failed, which means that, to this day, he is practicing this type of surgery. Any surprise then that this doctor is now willing to use race as an initial proxy for competence? Or, maybe even those of us who have heard the story from him?
3.3.2006 9:21am
Bruce Hayden (mail) (www):
What seems to be ignored with any suggestion that bar exams no longer be required is the question then of how to accredit law schoools. And the most likely answer is the ABA, after all, they are the ones doing it already for most law schools (and graduates of those that aren't are seriously disadvantaged in comparison in most states when trying to sit for the bar). Do we really want the ABA determining this sort of thing? Bad enough their recent forray into politically correct racism (also known as diversity). And this is one of the biggest reasons that eliminating bar exams scares me - that we haven't seen anything yet, as far as political correctness impacting admission to practice in this field.
3.3.2006 9:41am
Tom952 (mail):
Couldn't the same argument used to stop using the LSAT be used to ban the use of any intellectual performance criteria for admission to any school or occupation? Aggregate SAT scores have always stratified along racial and ethnic lines (Asian/white/hispanic/black in decending order). High school GPA's do the same. The medical board exams and the bar exam may exhibit the same "bias". Would the proponents of the LSAT ban limit the application of the argument, and if so, what arguments would they use to justify doing so?

In a perfectly diverse, criteria free world, I wonder how members of the "Council on Racial and Ethnic Diversity" would go about selecting a personal heart surgeon?
3.3.2006 9:59am
Marcus1 (mail) (www):
I think

1. Of course affirmative action lowers the mean LSAT. As Kovarsky hints, many non-"favored minorities" are not admitted to schools where they are well above the 25th percentile. This would happen less without affirmative action. The idea that affirmative action makes a clean switcheroo of the bottom 15-25% is not accurate.

2. Bernstein makes way too much of the bar situation. Much of the point of affirmative action is to get favored minorities into better law schools, not just to get them into law school, where according to Bernstein they will fail out anyway.

I appreciate the effort to come up with creative arguments against affirmative action. And perhaps they do alert people to problems with the status quo.

As far as I'm concerned, though, there are much bigger problems, such as (1) Affirmative action is extraordinarily unfair in how it decides who is the right kind of minority, which people are disadvantaged, whose perspectives are important or unimportant, and a host of other things, and (2) Affirmative action allows us to ignore the class issues which are the real problem by promoting people who really aren't disadvantaged, often over those who actually are -- but don't fit in the right race. Ok, so it gets back to fairness.

Plus it leads to resentment and race concsiousness which I think we would be better off without. It's just such a weird idea to me, that rather than finding who is actually disadvantaged, we're just going to use race as a proxy and help those people who fit the right description.

As far as whether it helps the people who get promoted, though, I think that's pretty clear.
3.3.2006 10:03am
Marcus1 (mail) (www):
And by mean, I meant median, as I hope is clear.
3.3.2006 10:05am
Bruce Hayden (mail) (www):
I think it important what a lot of previous posters have pointed out. Precisely that culteral bias that so bothers so many in the LSAT, the ability to read, understand, and write complex "standard" "American" English are some of the prime requirements for success in the practice of law. Case law is not written in Eubonics, nor in any other dialect, creole, etc. of English. As anyone knows who has graduated from law school and/or practiced law, it is most often written in turgid, complex, standard American English. I have no doubt that much of our case law were run through one of those reading complexity level programs, it would end up ranking at the graduate level in complexity. And if case law is bad, what about statutory law? I think all of us have read statutes that almost defy comprehension.

Law school is not undergraduate school, where you can do well despite low reading and writing skills in standard American English by, for example, concentrating on the hard sciences. Rather, adequate reading comprehension of the overly complex English found in our case law is absolutely essential to minimal competence in the field.

Back to my illustration of the affects of affirmative action in the medical field, and in that case, a surgery residency, I see lack of ability to adequately understand complex written standard American English as somewhere between having big hands and a tremor for a surgeon.

Yes, much of surgery is migrating to the use of computer assisted tools, where big hands and tremors can be accomodated. And, so, maybe some day we can get to a point where we have Eubonics translators that allow someone who speaks and understands that dialect, instead of the one tested on the LSAT, to flourish in our legal environment. But we aren't there yet, and may not be for the forseeable future.
3.3.2006 10:05am
Bruce Hayden (mail) (www):
Tom952 asked:
In a perfectly diverse, criteria free world, I wonder how members of the "Council on Racial and Ethnic Diversity" would go about selecting a personal heart surgeon?
And the scary thing is, heart surgeons are getting through their surgical 1residencies right now based on the color of their skin. My friend called the guy he tried to flunk out of just such a residency a "butcher". Maybe a little bit of an professional exageration. But the sad fact is that if this resident had been white, he would have been moved into a specialty that didn't have the same physical requirements as heart surgery does. But because he is Black, he is now a board certified heart surgeon.
3.3.2006 10:12am
Houston Lawyer:
I think Justice Thomas's dissent in the Michigan law school case hit the nail on the head. Prestigious law schools garner most of their prestige through the admission of highly qualified applicants. Right now, the best measure of future success is a combination of undergraduate grades and LSAT scores. The higher your average gpas and LSATs are the more prestige you garner. The problem becomes that universities routinely exempt certain preferred minorities from this process in order to increase the presence of such minorities on campus.

Universities could easily avoid this problem by using a lottery to choose their applicants, but there would be a loss of prestige to any university not following the current path. If you eliminate LSAT scores, then you fall back on gpas. I'm guessing that minority gpas are not any better than their LSAT scores. Do we then eliminate gpas as well?

The attack on the LSAT is an attack on the whole idea of measurable accomplishment.
3.3.2006 10:46am
Public_Defender:
One factor that schools should consider when looking at LSAT's is the test-specific preparation. Much LSAT prep work has little to do with general aptitude--it's just learning the test.

Law schools should ask students if they took an LSAT prep course. Those who took the course should have their effective scores reduced by the amount the program claims it raises the scores.
3.3.2006 10:51am
Bruce Hayden (mail) (www):
This brings me to the type of politically incorrect question that got Larry Summers fired from Harvard (and resulted in some $50 million being flushed down the diversity and feminist wormwhole). Everyone always assumes that African-Americans are as smart and articulate as everyone else, on average. This is, of course, despite their constant underperformance on, for example, IQ tests, regardless of how much those designing the tests attempt cultural neutrality.

This is, of course, one of the big reasons that "The Bell Curve" by Herrnstein and Murray became one of the most vilified books of the 1990s - because they suggested that there may be some racial differences in this area. Interestingly, the one ethnic group that they pointed to who did statistically significantly better on IQ tests than average were Jews - and I would suggest that their success in areas like law is precisely because they are now treated as "White" (and note Eugene's point that half the faculty at his law school are of Jewish descent).

In any case, we all now accept that there are racial characteristics that statistically advantage some races in certain sports. You just have to watch an NBA game to see this. Ditto for the racial composition of our various Olympic teams. No one questions any more why our fastest sprinters come predominently from one part of Africa originally, and many of the best long distance runners from another. They aren't on the team because they are Black, but because they are the fastest we have. And, yet, our best skaters are more likely to be east-Asian than Black.

This is not to say that some Whites, or even Asians, can't play top level basketball, because, of course, they can, and do. What we are talking about is exactly what Summers was asking about - statistical means and standard deviations. There are just significantly more Blacks out there in the tail of the distribution of whatever qualities it takes to play NBA level basketball than there would be if all things were equal, including distributions and standard deviations of these characteristics.

So, maybe part of the problem here is not overt racism, lack of good schools, etc., but rather innate differences between different racial groups, and law is one area where statistically, the genetic chacteristics of Jews make them more likely to succeed in law, and Blacks less likely (and, according to Hernstein and Murray, East-Asians slighly less likely, as they tend to score slightly lower verbally, but not logically, than Whites on IQ type tests).

Note that I am not stating that this is the case, but, rather, asking the same type of question that got Summers in so much trouble with the feminists at Harvard - is it possible? Are all the other explanations merely attempts to not address this question because of its political incorrectness?
3.3.2006 10:56am
Bruce Hayden (mail) (www):
I am not the least bit surprised at Justice Thomas' views on affirmative action. Put yourself in his shoes. He busted his ass to get into and through one of the best law schools in the country, and then to have so many denigrate his achievements by noting that he probably got in to Yale through affirmative action, and, thus, wasn't as qualified as other Yale law grads to sit on the High Court. I think his anger at this during his confirmation was almost palpable. Indeed, I almost suspect that the trauma his confirmation was what really solidified his feelings on this subject.
3.3.2006 11:08am
B. B.:
I think the very fact that Michigan is a top 10 school by the US News rankings quickly debunks the "schools raise their rankings at the expense of more progressive/diverse schools" due to the LSAT "bias." Sure doesn't seem to be hurting their ranking at all, no?

There's not a meaningful difference anyways between most of the top 10 other than personal preference on atmosphere, preferred professors or fields, and where you want to work when you graduate. Other than Yale/Harvard/Stanford (for those looking for SCOTUS clerkships), it makes little difference IMHO. Thus even if Michigan was somehow "losing out" it's no big deal to move up.
3.3.2006 11:32am
Bruce Hayden (mail) (www):
I am not sure that we really want to ignore class issues when we are talking about competence in the practice of law. As I noted above, reading comprehension is one of the key abilities required in the practice of law. To some extent, it is innate, and to some extent, it is learned. You need the first to make the second effective.

To the extent that reading comprehension is a learned behavior, class can be important. The more highly educated the parents, the more likely that their children will be pushed in this direction, both implicitly and explicitly. Implicitly, because parents, etc., who are well educated and articulate tend to talk in more complex language to their kids, and have more complex reading material available around the house. Explicitly, because a lot of us push our kids in this area - for example, by giving them a subscription to the New Yorker and the Economist when entering high school, and then making sure they are getting read and understood (true story). (I should add that having a bunch of lawyers in the family talking law at the dinner table makes this even worse).

So, you have one kid who is reading these magazines at 14, and another, just as smart, who doesn't even know what those magazines are at graduation from high school, and, instead spent his high school years playing basketball and video games. Which one statistically is going to do better in law school a mere four years later, and then in the practice of law three years after that?

To some extent then, ignoring class and family environment means that these much less well prepared kids are going to be competing with much better prepared peers. When are they going to get the time to catch up? In law school? Probably anyone who has graduated from law school remembers how much spare time they had for almost anything, esp. during their critical first year there. Now imagine 1L without nearly the level of reading comprehension that you had when you entered law school.
3.3.2006 11:34am
Mikeyes (mail):
Mobius points out that neither the LSAC nor the law schools nor the ABA publish any information about the correlation between LSATs and grades in law school (I found a 1991 study on Professor Randall's web site called the LSAC Bar Passage Study that said that LGPA and LSATs were the strongest predictor of passing the bar) but the MCAT, a similar test aimed at pre-meds, has been studied extensively with similar results plus a lot more information about the relationship of MCATs to performance in Under-represented Minorities (URM) and other groups.

The experience with the MCATs is probably similar to that of the law schools with the exception that law schools are not as selective as medical schools. URM students with lower MCATs tend to do worse on the paper and pencil tests (which include the Part 1 of one of the national licensing exams) but did just as well on the clinical side. American medical school graduates appear to pass the state boards in very high numbers in spite of the above mentioned differences in grades.

Most likely this reflects the aptitudes of the students, which is high to begin with, but the differences in academic performance is still present in spite of this selection issue.

When I googled "MCAT and Minorities" I got an instant hit on the official MCAT site which linked to all the research in the field and to opinion papers concering minority admissions. The MCAT offers a 100% breakdown of GPA and MCAT for all 17.000 med students who entered and all 37,000 applicants (by mean scored according to category) so you can get an idea of the credentials of these students. I could not find a similar set of statistics for law schools. It makes me wonder if there are too many law schools or too many law students.

I understand from other threads that law schools are cash cows for some universities. The ABA evidently accredits law schools which may have something to do with the number of schools (the AMA does not accredit schools, the AAMC does - they administer the MCAT too) and thus have control of both the national professional organization and the schools. Maybe there is a conflict of interest here or at least a problem with the standards of accreditation if certain students are doomed to fail using the ABA standards.

In 1910, the Carnegie Foundation had Abraham Flexner study every medical school in the United States and Canada to determine the quality of the schools. This study was prompted by the idea that there were too many physicians and that many of the schools were in business just for the fees paid by the students. The report brutally examined each school and by 1920 any school that he panned was no longer in business. Perhaps the answer to the bar failure/poor performance problem for law students lies in another study, this time aimed at law schools. ;~} (What are the odds of that happening when the fox is guarding the hen house?)
3.3.2006 11:35am
Been There Done That:
Bruce,

You're not supposed to even hint at the "TABOO". Man, don't you know that that's the 3rd rail? How dare you inject rationality &empirical reality into a discussion of these issues? Let the name-calling begin!
3.3.2006 11:38am
Kovarsky (mail):
Brett,

Kovarsky, could you try to use "bias" in a more conventional sense? By your current usage of it, blood tests are racially "biased" because they stubbornly show blacks to have sickle cell anemia more often than whites. Whereas an "unbiased" test apparently must show equal results for different races, even if those races actually differ.

Actually a "biased" test is one where the results being tested are skewed one way or the other around the mean, and that distribution is traceable to something other than the variables the test seeks to measure. So my definition of bias would never apply to whatever asinine sickle cell anemia example you just gave. Forget for a moment that the analogy doesn't apply. Let's pretend it did. What on earth do you want someone to respond to your sickle cell anemia comment, ignore racial bias all the time? It sounds strikingly like the intelligent design argument that because science is wrong a lot we should favor the least probabilistic outcome.

The LSAT is not racially biased AT ALL: Two otherwise identical candidates who happen to be of different races will, upon taking the LSAT, get the same score. Because the LSAT has no way, whatsoever, of measuring someone's race.

That sounds purrty but the inference you're trying to create from it is untrue. Sure, if you had two peopel with identical DNA and identical social conditioning, but different skin color, they would get the same score. That also, incidentally, has very little to do with whether a data sample and associated test results are biased. The idea is that you never have that identity situation because the test does not control for variables such that the two test subjects take the exam under the conditions you are talking about, ever.

It may be biased on the basis of English comprehension, facility with logic, and any number of other basis which have some correlation with success as a lawyer, but none of these biases are "racial" bias, even if races statistically differ on these axis.

Actually, you would prefer this to be the case, but I have a feeling you just don't understand the statistical terms you are using. I think you mean to say that they aren't a product of racial prejudice, which is defensible enough, but as a factual matter the sample from which test scores are measured is racially biased.

Finally, destroy every measure which stands in the way of blacks becoming lawyers in equal percentages as whites, without adressing the underlying causes that ACTUALLY were responsible for the difference, and people will quite rationally avoid black lawyers like the plague, because by destroying a meritocratic system of generating lawyers, you will have created a situation where a lawyer's skin color is a reasonably accurate proxy of their competence as a lawyer.

Brett, I think you are aware that this has nothing to do with anything I've said. But it sounds nice in a soap bozy kind of way.
3.3.2006 12:19pm
Kovarsky (mail):
soap boxy.
3.3.2006 12:21pm
JosephSlater (mail):
Bruce and Been There Done That:

I'm sure it gives you a frission of "political incorrectness" to suggest that intelligence is linked to "race" -- or to suggest that even asking raising the issue bravely breaches some evil taboo. But the fact is that biologists are essentially unanimous that "race," as the term is used in U.S. policy debates has no scientific meaning. Genetic differences *among* "races" (black, white, whatever) are much greater than genetic differences *within* races.

There are reasons that some groups underperform others on some types of tests. It's a complicated question, as is the question of what schools and other institutions should do about the fact that some groups underperform others. But to attribute the differences to genetics is junky pseudo-science of the worst kind.
3.3.2006 1:11pm
JosephSlater (mail):
Um, delete "asking" at the end of the second line. Must be my illiterate Jewish genes.
3.3.2006 1:13pm
BMM:
I think Bruce really identified the major unstated issue of class. Class background has a huge impact on people's capabilities and perceived opportunities. For every kid from a functionally illiterate family who ends up taking the iniative and educating themselves or finding that surrogate intellectual father or mother in the form of an interested and committed teacher, there are hundreds who don't. All trends point toward an increased divergence in the future.

I think the arguments made by the authors of this LSAT argument are shallow, stupid, and self-serving. Affirmative action is a not particularly good solution to the problem either. But let's not pretend that there is no problem or hide behind a moralistic or racist reductionism to explain the problem. Focus on primary and secondary school education reforms--especially in the field of how schools are financed at the local level. Financing by local school district property taxes basically ensures that the rich will get richer and the poor poorer. Remedy the education divide and law schools won't have to scramble for qualified black applicants. Of course, that wouldn't help marginally competent upper-middle class black people. Hmmmm.
3.3.2006 1:26pm
Brett Bellmore (mail):
You are, of course, willfully conflating the statistical sense of "bias", with it's usage in the context of racial discrimination, in order to imply that we have to undertake actions to "correct" mere statistical artifacts as though they were the result of human malice.
3.3.2006 1:30pm
Been There Done That:
Joseph Slater,

We completely disagree on the facts; (See Rushton, Jensen, etc.) Arguing over purported facts is tiresome. Humor me. Engage in a hypothetical: what would be the policy consequences if the TABOO is true?

The TABOO is SO taboo that people generally refuse to ponder the consequences...
3.3.2006 1:34pm
BMM:
Been There Done That,

When there has been a scientific study that correlates intelligence to genetics and those specific genetics to race, I think you could make a case for trying to figure out some policy consequences. No such study has been done. If it were done, would would you propose? A eugenics program? Genetic screening for tracking into vocational or professional programs? I'm confused.
3.3.2006 1:52pm
JosephSlater (mail):
Been There Done That:

More importantly than you and I disagreeing is you disagreeing with the pretty much the entire profession of biology. I know that's old hat for some on the hard right -- creationism over evolution and all that. But facts are stubborn things, and they are not on your side.
3.3.2006 2:11pm
Guest2 (mail):
a frisson of "political incorrectness"

I like that turn of phrase. It describes exactly how I feel when contemplating certain libertarian ideas.
3.3.2006 2:26pm
Mikeyes (mail):
Bruce Hayden,

You asked if there was a relationship between class and academic performance in post graduate settings, and it seems that there is. A 1995 study of medical students at the NJ Medical school shows this:

"CONCLUSION. Parental income was correlated significantly with performances on the MCAT and USMLE Step 1. These relationships may be particularly strong and persistent for minority women." (Acad Med. 1995 Dec;70(12):1142-4)

These studies are not hard to do and there are plenty of them in the medical field. Why can't the ABA do similar studies?

The proposal to limit the use of the LSATs seemed very short on facts or research. Perhaps those studies are elsewhere and it is assumed that everyone reading this statement is familiar with them, but even the assumption that there are fewer Hispanic and Black applicants and that their LSAT scores are higher (whatever that means - they may still be very low) is not supported by a footnote or a cite. How can this kind of proposal even be considered (especially by lawyers who are used to dealing with facts first then opinions) if there are no facts?
3.3.2006 3:01pm
Mobius (mail):
Mikeyes,

I think you are close to right on. How can the ABA say that the LSAT is biased when the ABA does not possess any data to back up the claim. The ABA is just plain making stuff up; which is shocking for a legal organization.

The ABA has some serious problems right now.
3.3.2006 4:05pm
Brett Bellmore (mail):

No such study has been done.


See, for instance,


If it were done, would would you propose?


How about dropping the absurd presumption that any statistical variation in outcomes between races is conclusive evidence of racial discrimination, which must be remedied?
3.3.2006 5:13pm
Brett Bellmore (mail):
3.3.2006 5:18pm
Bruce Hayden (mail) (www):
I am glad to hear that there is no such thing as race. That means that there is no justification for affirmative action aimed at combatting the effects of racism. Why give the children of rich and/or highly educated people of African-American descent any racial preferences? If the question is that of a deprived upbringing, then aim at that, and not at race as a proxy. For example, you could look at the education level of the parents instead of skin color. Bonus points for generational single parent families.

And, I suspect that another corrolary from that result would be that the apparent racial makeup of the NBA is a result of certain types of upbringing, and not, for example, physical size combined with quantity of fast-twitch muscle. Or, it could just be random. I am in the midst of reading "Does God Play Dice: The Mathematics of Chaos", and haven't gotten yet to the part where this sort of seeming correlation is exposed as a localized phenomenum. I am stuck right now on sources, sinks, and saddle points.
3.3.2006 5:28pm
JosephSlater (mail):
Bruce:

There is no biological definition of race that makes any sense, at least not the "black vs. white" sense. Again, it is entirely clear that there are more genetic variations within such "races" then there are genetic variations among such races. There simply is no science to it.

That doesn't mean "race," as in black vs. white, does not exist for some practical purposes. People can TREAT other people as belonging to different races: we used to do that in the U.S. with black folks who had "one drop of black blood"; fascists and their sympathizers made much of whether a given person was 1/8 or 1/16 Jewish; etc. So race, in the black-white sense, exists in a very powerful way as a social construct. There just isn't any real biology to it.
3.3.2006 5:37pm
Guest2 (mail):
Q: If it were done, would would you propose?

A: How about dropping the absurd presumption that any statistical variation in outcomes between races is conclusive evidence of racial discrimination, which must be remedied?

And we could also call it a day as far as race goes, and instead focus on some much more significant disparities, like why tall men and buxom women get all the breaks.
3.3.2006 5:42pm
Kovarsky (mail):
Brett,

You are, of course, willfully conflating the statistical sense of "bias", with it's usage in the context of racial discrimination, in order to imply that we have to undertake actions to "correct" mere statistical artifacts as though they were the result of human malice.

Actually, no I haven't. I would in fact argue that I've been more careful of adhering to its strict statistical meaning than anyone else on the thread. Despite your vaguely erudite attempt to correct my use of the term "bias," I have used it roughly 12 times in this thread. In 9 of those it is the noun, modified by the word "statistical." In 2 others, I am merely using the phrase "cultural" or "racial" bias because I have adopted the terminology of the person to which I have responded, and I'm trying to keep the argument clear. The single time when I even use the phrase "racial bias" as an organic concept in my own post is here, right before you posted your little plea to denotative accuracy:

Because of the plain-as-day income bias, there is an undeniable related racial bias in the process as well.

You'll notice, once again, that the phrase "bias" is used as a noun, to denote a distortion in testing methodology.

So, your confusion is a result of your sloppy reading or your misattribution of ideas, not my sloppy writing. I've stated at least 4 separate times here that I don't think the test is "racist" in the conventional sense of the word. I've been arguing that the sample of minorities is "biased" by other factors. Or that the test exhibits a statistical "bias" against minorities based on the presence of those other factors. Get your facts straight, please, before you start accusing me of deliberately confusing a scientific term over which I'm quite confident I have a greater grasp than you do.
3.3.2006 5:42pm
Kovarsky (mail):
Brett,

How about dropping the absurd presumption that any statistical variation in outcomes between races is conclusive evidence of racial discrimination, which must be remedied?

How about dropping the absurd rhetoric that the obviousness of the logic above also relieves people of any and all reciprocal evidentiary burden when presented with facts that such a relationship does exist.
3.3.2006 5:45pm
Kovarsky (mail):
Brett,

I forgot to mention that I used to write consumer profiling and testing algorithms for a living, so your argument that I'm somehow confused on the meaning of statistical bias is a little, um, farfetched.
3.3.2006 5:47pm
Bruce Hayden (mail) (www):
I will admit that I was a bit extreme in my last post. But I do think that it is a bit much to expect us to disbelieve that there are racial differences in different aspects of our physiology, when we see them on TV all the time when we watch professional sports, or, even the Olympics.

That said, my suspicion is that class is really much more of a factor than is race here, with race only being a crude metric here for class, and a metric that is getting ever cruder as more African-Americans and Hispanics join the middle class. Parents pushing reading and reading comprehension at early ages is going to pay off in LSAT scores, law school, bar exams, and the practice of law. I find it extremely questionable that most people who can't adequately understand the questions on an LSAT because of lack of reading skills for standard American English are going to be magically be able to parse the turgid complex case law and statutes that attorneys are forced to analyze in their jobs three years later.
3.3.2006 5:50pm
Brett Bellmore (mail):
Relax, I didn't mean to accuse you of being confused. I actually had the falacy of equivocation in mind.

Why would I have said "willfully", if I'd thought it was inadvertent?
3.3.2006 6:01pm
Kovarsky (mail):
Bruce,

I don't think anybody denies that SWE is an important skill. I think the point is that if you are testing SWE, test it, calibrate the test accordingly, so it is not over-weighted or under-weighted. I think the point is that, assuming SWE is not what the LSAC seeks to test in the logic games (or that it intends to test SWE less than SWE actually figures in providing the correct answers there), it biases the sample of responses to those games.

Of course class might be driving this issue, not necessarily race. First, that ignores that race and class are not independent variables, which undermines the inference you seem to want to draw here. Second, its not clear that even if race merely correlated with class, and class was what was in fact driving the stats, that you wouldn't want to correct for that unseemly correlation.

Just food for thougt - I think this is a tough issue.
3.3.2006 6:03pm
Brett Bellmore (mail):
I'm sorry, that was excessively hostile, and of course, the falacy of equivocation CAN be inadvertent.
3.3.2006 6:05pm
Mikeyes (mail):
So far the only study I found even addressing the issue of grades and LSATs was the one quoted on Prof. Randall's site, the LSAC Bar Passage Study which looked at the 1991 class of law students and followed them to see how they did on the bar exam. It is a long and boring study, but the conclusions were that eventually most law students could pass the bar if they tried enough times. The pass rate for whites was in the 90+% range and for Blacks in the 77% range.

More recent numbers show a decline of 4%-7% in the numbers of applications to law school depending on racial category and there was an overall decrease in the number of applicants. I am not sure if that means anything as we don't know the academic makeup of these applicants. No studies break down the mean LSAT scores by race either of the applicants or those accepted nor do they show mean GPA scores for both groups. There are several older studies on the lsac.org site showing correlation between LSAT and the first year GPA which is most predictive for whites and not as predictive for minorities. But the differences in predictability were not that great.

If you go to the MCAT site, you can see all of these statistics and more. In addition there are hundreds of papers and studies relating the MCAT to success, predictability, race, gender, class, income, and for all I know hat size. Maybe it is the culture of medicine to study everything, but anyone who wants to go to medical school has a much better change to figure the odds of being successful than someone who goes to law school. Of course law school is easier to get into and there are no first and second tier medical schools in the sense that there are for the law. But that is no reason not to do these rather simple statistical studies. All you have to do is publish the information that the ABA no doubt already has on acceptance rates, LSAT scores, race, class, law school completion rates, and bar pass rates.

After the basic stats are in, a good researcher should be able to see if there is discrimination due to "misuse" of the LSATs. Even though that may be a very subjective idea which cannot be measured, some idea of what is really happening would be better than emotional anecdotes. Then the issue could be argued on a level other than faith/belief.

The problem is that a lot of terms would have to be defined and there are persons in power who don't want to have that much clarity in the issue (on both sides of the issue I might add.) In addition, just the argument over what needs to be studied will take up decades ;~)

If the idea is to enhance under-represented minorities (URM) chances of being accepted to law school, then more ought to be done to help that group get in and be successful once in. This may mean a cultural change in all of law as the big money is in organizations who rely on grades, LSATS, and recommendations to choose the few while others get what they can. As an aside, URM lawyers in government work make significantly more salary than whites in similar jobs. (This is one of the studies I found googling "LSAT and minorities") While the big law firms may not want anyone but top tier students, it appears that anyone who completes law school will pass the bar according to the one study that even Prof. Randall chooses to show.

The ABA states that there are fewer URM passing the bar, where is the proof? Even DB says that at some schools a large percentage of URM students don't pass the bar. Where is that proof?

Numbers may lie, but they mean a lot more than speculation.
3.3.2006 6:06pm
Bruce Hayden (mail) (www):
JosephSlater

Then why worry about race in the first place if it is irrelevant? Why give any preferences for race on college admissions? Or, indeed, worry about the disparate impact of the LSAT based on race, if race is irrelevant?

I say this to a great extent because I find it absurd. A friend of mine has a daughter currently attending an Ivy League college. The daughter was raised white, in an exclusive white neighborhood, in a million plus dollar house. But when she needed to get into prep school, and, more importantly, when she applied to college, they asserted her 40% African-American (via Jamaica) ancestry.

If the intent is diversity, then look for diversity of background, of upbringing, not diversity of skin color. I know plenty of kids of color today who attend primarily white schools, etc., who have mostly White friends, etc., who are almost indistinguishable from their white friends.

But, as I suggested earlier, I see the problem being much more about class than genetics, with apparent, technical, race being an extremely crude metric to measure this by.
3.3.2006 6:14pm
Kovarsky (mail):
Brett,

I am sorry. You had no way of knowing this, but I've engaged you on a number of other blogs under different pseudonyms, where you have hardly been polite. I therefore declined to give you the benefit of the doubt and, in this instance, it may have been warranted. I have seen you write on this subject and subjects like it in other places, with far more incendiary language.

Lee
3.3.2006 6:23pm
Mikeyes (mail):
I found some stats buried in the LSAC site. Blacks have lower average LSATs, tend to apply much later than other groups, and the Universty of Texas has a lot of pre-law students. Plus there was some interesting data about law school applicants who attended a series of Washington, DC forums.

Not exactly mindbending material. And none seemed to apply to the question at hand. Nothing said about acceptance trends in these studies.

I guess if I am going to apply to law school, I should apply early because that is when the most qualified apply. But will it help me get in?
3.3.2006 6:35pm
Bruce Hayden (mail) (www):
Kovarsky

I don't disagree that the LSAT might better distinguish between SWE comprehension and writing skills, and logic, and that scores on the later may be influenced by SWE reading skills. But I don't see that having a major impact on the predictive power of the test as to success in 1L and passing the bar exam, and, potentially, even at the ability to practice law well.

I think that we have two possible hypotheses here. Either race has something to do with ability to do well on the LSAT, perform well in law school, etc., or it is a proxy for something else, which I hypothesize to being primarily class (probably more accurately, family and home environment, etc.) I threw out the first for consideration because it is untouchable. It is the sort of politically incorrect hypothesis that got Summers fired from his top post at Harvard.

As for the second, my problem with using race as a proxy for class is that it just isn't that accurate. It it just much too crude. And it is getting cruder as time goes on, as more and more Blacks and Hispanics join the middle class. It ignores that there are plenty of White kids who grow up in just as disadvantaged circumstances, and that plenty of Black and Hispanic kids from advantaged circumstances are getting further advantaged through using this proxy, at the expense of those who probably really need the help.

It is almost as if we were in a time warp, where the Blacks and Hispanics in this country are all still living in segregated racial enclaves. But it is precisely those minority kids who have the advantaged upbringings, who often go to the primarily white private schools, etc., who are the ones who are getting the biggest benefits from affirmative action.
3.3.2006 6:40pm
Enoch:
There is no biological definition of race that makes any sense, at least not the "black vs. white" sense. Again, it is entirely clear that there are more genetic variations within such "races" then there are genetic variations among such races. There simply is no science to it.

Don't be too sure there is nothing to it:

"Last fall, the prestigious journal Nature Genetics devoted a large supplement to the question of whether human races exist and, if so, what they mean. The journal did this in part because various American health agencies are making race an important part of their policies to best protect the public - often over the protests of scientists. In the supplement, some two dozen geneticists offered their views. Beneath the jargon, cautious phrases and academic courtesies, one thing was clear: the consensus about social constructs was unraveling. Some even argued that, looked at the right way, genetic data show that races clearly do exist."

"a 2002 study by scientists at the University of Southern California and Stanford showed that if a sample of people from around the world are sorted by computer into five groups on the basis of genetic similarity, the groups that emerge are native to Europe, East Asia, Africa, America and Australasia - more or less the major races of traditional anthropology."
3.3.2006 7:02pm
Cal Lanier (mail) (www):
On the class/income factor and its impact on test scores: Poor whites outperform high SES blacks on NAEP tests and the SAT.

Six percent of African Americans scored higher than 600 on either section of the SAT in 2004.

I'm sure that pattern repeats itself on the LSAT as well. It's comforting to pretend it's family income, but there's just no evidence supporting that.
3.3.2006 7:34pm
Kovarsky (mail):
Everyone,

Simply quoting data involving minority scores on tests, and attempting to draw conclusions based on the highness or lowness of those scores alone, cannot - as a conceptual matter - tell you whether the sample on which the observations were biased was statistically biased or not.

In other words, at the very least (and there are still gaping holes in this type of analysis) - you would need to compare the effect of income on LSAT scores, holding other variables constant, and then compare the effect of race on LSAT scores, holding other variables (including income) constant.

If, after holding other variables, including income constant, and you still see low scores on the test, correlating with race, you've got to ask yourself - is the difference the race or the test? Unless you believe that White people really are just smarter, then it's the test. That doesn't tell you what to do about the test, or what the best course of action is, but it does tell you whether the test has a "disparate impact."
3.3.2006 8:05pm
Kovarsky (mail):
Enoch,

By the way, I know that whomever you were addressing implied that there was "no such thing as race," but I think what he meant remains a valid point. The question of "whether there is such thing as race" strikes me as the classic "can computers think" inquiry, in the sense that it's impossible to answer without a more precise question. And the precise question that I don't think your article refutes, is that there is far greater genetic variation within a given category of "race" than among there is among them.
3.3.2006 8:20pm
Brett Bellmore (mail):
The obvious question, of course, is whether that "far greater genetic variation within a given catagory of "race"" actually rules out there being a subset of the genome which IS correlated with "race", and which includes significant genes coding for things besides outward appearance.

It's perfectly possible, after all, to have these genes over here varying wildly, and those genes over there marching in lockstep. Indeed, you'd expect that, given the importantance of at least *some* kinds of genetic diversity to fighting off parasites.
3.3.2006 8:32pm
Cal Lanier (mail) (www):
"If, after holding other variables, including income constant, and you still see low scores on the test, correlating with race, you've got to ask yourself - is the difference the race or the test? "

Those aren't the only two options. And there's plenty of data supporting the fact that ses only explains a part of the difference in the test gap, and not enough to overcome the differential. The only reason I mentioned SAT scores is because well over 2% of blacks are in the middle class, so it seemed a stark demonstration. But there's plenty of actual research on the subject. See the Thernstrom's book, No Excuses, for an overview. Here's one on the NAEP gap:

Intersections in Race, Class, and Gender in NAEP data
3.3.2006 8:43pm
Kovarsky (mail):
Brett,

I think the idea of the theory is that to the extent that "race" is a meaningful concept, it would have to be that those characteristics that we outwardly perceive as racial (skin color, hair texture, facial structure) would be the best predictors of other clustered traints. The data says they're not even close - they're only "more predictive" because they're the most measurable - generally apparent at a glance.
3.3.2006 9:24pm
Tennessean (mail):
Re:
If, after holding other variables, including income constant, and you still see low scores on the test, correlating with race, you've got to ask yourself - is the difference the race or the test? Unless you believe that White people really are just smarter, then it's the test. That doesn't tell you what to do about the test, or what the best course of action is, but it does tell you whether the test has a "disparate impact."


Actually, it strikes me that statistics can never get you that far. Because you can never hold all "other variables" constant, you are left to conclude that the effect you are seeing is from race, from some as-of-yet-untheorized input, or from chance. Each of these three has a positive probability, it seems to me. The interesting query is how to compare the likelihood that it is race with the likelihood that it is some unidentified factor.
3.3.2006 9:43pm
Marcus1 (mail) (www):
I don't get how people convince themselves that "there is no such thing as race." It's the weirdest kind of wishful thinking. A monkey could probably differentiate between ethnically Chinese people and ethnically Scandinavian people with 100% accuracy.

Does any rule apply 100% of the time? Will there be people within a group that are extraoridnarily different? Do people commonly confuse vastly different groups because they look similar? Of course. To say there's no such thing as race, though, may be a nice idea, but it's just way too ridiculous to have any potential for acceptance among the general public. Show me an ethnic Swede with sickle cell anemia and we'll talk.

To me, the problem is the excessive focus on how groups stack up statistically to other groups. This obsession with statistical comparison, when matched with the taboo of acknowledging racial differences, results in just one huge mess. I mean, if we want the legal profession to "look like America," the fact is that we're going to have to reduce elite law faculties from some 50% Jewish to around 2% Jewish. So when is that going to happen? In the next 50 years? In the next 500 years? It's a complete fantasy.

Of course, there are real racial problems in America, which are the result of real racism. To solve the problem, though, IMO, we simply can't allow ourselves just to promote blacks and hispanics. We have to force ourselves to address the actual problems of underprivilege. By relying on race-based affirmative action, we are refusing to address the real problem, while creating a lot more inequity.

In my dream world, anybody who said "Oh, well this shows that Chinese people are smarter than white people on average" would be told to shut up. The problem isn't that it's false -- it may well be true -- the problem is that such statistics prove nothing about an individual person's worth. That is a fine and logical response to racism. The current "taboo"/affirmative action approach simply isn't, IMO, although I certainly appreciate the feeling from which it comes.
3.3.2006 9:54pm
Kovarsky (mail):
To me, the problem is the excessive focus on how groups stack up statistically to other groups. This obsession with statistical comparison, when matched with the taboo of acknowledging racial differences, results in just one huge mess.

Huh? I don't think anybody thinks that what we think of as races don't have readily observable clusters of physical characteristics. It just so happens that those characteristics don't tell us that much about the other genetic characteristics of the person exhibiting them. The point is that there's a lot of other measurable genetic characteristics that are a lot more likely to tell you more about a person. We just don't think of them as "predictive" and therefore as "racial" because you can't see them through a window.
3.3.2006 10:18pm
Marcus1 (mail) (www):
>I don't think anybody thinks that what we think of as races don't have readily observable clusters of physical characteristics. It just so happens that those characteristics don't tell us that much about the other genetic characteristics of the person exhibiting them. The point is that there's a lot of other measurable genetic characteristics that are a lot more likely to tell you more about a person.<

Well, I think each sentence there got closer to the truth than the one before it. The problem is that many people take as a primary assumption that there can be no differences, on average, between various ethnic (or gender) groups. This is related to the idea that "race does not exist." On that basis, they then pick out certain instances where one ethnic/gender group is less represented than another, and assert that this must be proactively remedied -- not by seeking out the root inequities and remedying them (although they may well do this too) -- but by simply cooking the books, so to speak.

Unfortunately, when people do this -- when they assert that a particular group's underrepresentation is such a direct result of discrimination that the only possible remedy is to specifically promote members of that group (rather than the very reasonable solution of trying to directly counter any discrimination) -- then one is forced to say, well, wait a second: Why are we assuming that every group would necessarily come out exactly equal in every single theoretical endeavor in the absence of discrimination? The kind of thinking which affirmative action is based on necessitates asking whether every group is exactly equal in everything, on average.

My feeling is that we're not; why would we be? We don't look the same, we don't get the same diseases, we've evolved separately for thousands of years. All indications seem to suggest that Jews and Chinese people, as an example, are a little bit different. And as far as I'm concerned, that's fine.

Again, though, I'm not trying to promote the idea of different races when I say this. I'm simply pointing out that absolute-equality-on-average is a huge assumption that progressives make, despite the fact that it is unproved, very counterintuitive, and all kinds of evidence suggests otherwise. As a progressive myself, I'd like nothing more than to ignore this problem and join the progressive chorus. As somebody who tries to be intellectually honest, though, it is something I find very troubling: not that they believe all races are equal, but that they use this as a founding assumption from which they draw dramatic conclusions and set bold policies which turn it into a huge issue.

Basically, I think disparate impact is relevant as evidence of discrimination. It is not, however, discrimination per se. Thus, the goal should always be to find the underlying injustices and remedy them. Cooking the books, by simply promoting members of an underrepresented group, is an extreme option, which I think should always be a very last resort.
3.3.2006 11:54pm
Lev:
Bruce Hayden http://volokh.com/posts/1141347596.shtml#70615

Of course, it is important to remember their conclusion based on the statistics is that intelligence as manifested by individuals is some 40-60% genetic, and some 60-40% environment. Or, as they put it, corn seed sown in Iowa will grow 10 feet tall, corn seed sown in the Mojave Desert won't grow much at all.

That would suggest that LSAT as a single measure is inadequate.
3.4.2006 12:30am
Kovarsky (mail):
Marcus 1,

I don't think too much of the idea that we can socially engineer our way back into absolute social equality. But I also don't think that's really the issue with the LSAT - the issue for some people is they feel that it COMPOUNDS the inequality. Whether they're right or wrong is up for serious debate - but the claim that we shouldn't compound the inequality is quite different from the claim that you should seek to fix it.
3.4.2006 1:01am
Brett Bellmore (mail):

Cooking the books, by simply promoting members of an underrepresented group, is an extreme option, which I think should always be a very last resort.


Or rather, never, because while disparate impact is not "discrimination per se", cooking the books IS, unambiguously, "discrimination per se".

That's the hideous irony of the whole matter. In the name of fighting theoretical discrimination, whose existance can't be proven, only infered, it is demanded that we commit actual discrimination against identifiable individuals.
3.4.2006 8:21am
Bruce Hayden (mail) (www):
Lev

I think that your figures probably have some merit. Given their fuzziness, from my experience, I think they are probably right. But I don't think your conclusion necessarily follows from them.

Kovarsky

I somewhat agree. However, I think you still get into the question of the purpose of the LSAT. Is it there to act as a gate into the legal guild, or is it there to predict success in law school, bar exams, and the practice of law? To the extent that it is the first, then I think you could argue that it makes some sense to weaken it's effect on the admission process. But not the second. Maybe we are saying the same thing.

I go back to a previous point, which is that if we can truly disaggregate the SWE from the logic portion of the LSAT, and can identify how much of each is relevant in law school, passing the bar, and in the practice of law, then fine, modify the LSAT accordingly. But the idea that because the LSAT depends so heavily on reading comprehension of SWE, and that that factor works to discriminate against certain groups, that it should be removed or significantly weakened - because, as I repeatedly point out, high SWE comprehension is absolutely key to understanding and practicing law. Or, to put it more baldly, the case law and statutes that we have to read, understand, and interpret as lawyers are not written in Eubonics, but rather in highly complex standard written English (SWE).

Marcus1
Basically, I think disparate impact is relevant as evidence of discrimination. It is not, however, discrimination per se. Thus, the goal should always be to find the underlying injustices and remedy them. Cooking the books, by simply promoting members of an underrepresented group, is an extreme option, which I think should always be a very last resort.
I disagree that disparate impact is necessarily evidence of discrimination, esp. present discrimination. For one thing, there are too many other variables involved, including, as I keep pointing out, class, and, esp. there, family composition. I don't think our statistics are really yet up to determining that Blacks do worse on LSATs because they are, or even were, discriminated against.

Putting on my partisan hat, my view is that a lot of the problem is a direct result of the Great Society. One of its unintended consequences was that a much greater percentage of the Black community was pushed into single parent households (while the War on Drugs pushed the other potential parent into prison). This had a couple of negative effects that I think we are still seeing today, in spite of Welfare Reform. First, a lot more, as a percentage of the relevant population, Blacks currently taking the LSAT grew up in this sort of single parent environment. And secondly, there is an extremely high correlation between single parent households and poverty, and a decent correlation between wealth and doing well on the LSAT. I should add that this is esp. tragic, since the Black marriage rate was apparently higher in 1950 than the White marriage rate - and if it had been maintained, I don't see us in this mess right now.

But note that under my hypothesis, Blacks don't do less well on the LSAT because of overt racism, but do so primarily because they were significantly poorer as a group during the 1960s, to some extent because of past racism, and that because of their poverty then, were hit harder by the well intentioned War on Poverty.
3.4.2006 9:37am
Mikeyes (mail):
The ABA is being disengenuous not because minorities are not getting into law school, but because the whole system seems to be either corrupt or flawed and they are responsible. To my mind this is a smokescreen to cover the problems in the system of legal education.

The United States is probably the only country in the world that does not choose its college and graduates students on the basis of aptitude. In virtually every other country with a state funded higher educational system, an applicant has to do well on a set of national tests before the age of 19. If he or she does not, then there are alternatives but engineering, law and medicine are not among them. Students go directly to the professional schools from high school.

In the States, virtually anyone can get a college diploma, the pre-cursor of law school. There are 5,000+ colleges and universities in this country and about 100 of them have selective admission criteria. The rest will admit you if you meet minimum criteria and some will just admit you no matter what your qualifications are.

Once you have the college degree, you can apply for professional or graduate schools, this time depending on your qualifications. Getting into a law school is about a 50/50 proposition at this level (last year 94K applied, 50K were accepted.) That's no too bad. Graduating and then passing the bar is another story.

The issue the ABA seems to have is why minorities have problems getting into tier one and two law schools, not just into law school. I am assuming that is true because the ABA doesn't think very highly of the degrees that the other 100 or so law schools give out possibly because the chances of a graduate of one of the tier three on down schools to make a six figure salary is small. The tier one/two first year postions that the ABA is concerned about are not very many compared to the overall number of places in law schools and the odds of a less qualified student graduating from a top tier school area also less than if he or she went to a less academically rigorous school.

The studies (from LSAC) show that if you persist, you will pass the bar. Evidentially the mimimum knowledge needed by a law school graduate to pass the bar is not that much and alternative testing techniques are available (such as no time limits for qualifying testees) if you are test phobic. A graduate of any law school has at least a 77% chance of passing and the overall pass rate is in the 90% range for those who choose to take the test.

Of course, 25% of students don't bother to take the bar or practice law according to these threads, and you know all of these stats on graduating if you have paid attention each time this issue comes up.

So, is the bottom line that for the sake of 50-70 students who would get into law school, graduate, and pass the bar anyway there has to be a major threat to the best law schools to un-accredit them because of a questionable policy issue? These schools have no control over the quality of the applicants, just over the quality of the students in the school. If minorities were not getting into law school because of some factor related to skin color or cultural differences, that would be one thing, but if the someone can't get into the school of their choice (and probably mine too) and they don't because they don't meet the academic standards of grades and LSAT, why is that a tragedy? Because they belong to a minority? They will become lawyers anyway. If that is true, maybe here is where the discrimination is taking place - allowing anyone to get into law school because the school has an opening and needs the money. Not because the school is dedicated to turning out lawyers who will serve the public.

Apparently it is the position of the ABA that the majority of the schools deemed as acceptable by them are not qualified to produce competent lawyers. This makes no sense to me. If we are producing more lawyers than needed, and if a quarter of law school graduates are not even taking the bar, shouldn't the ABA focus on these problems which they have promulgated by their own actions and then see if discrimination is taking place?
3.4.2006 10:18am
John Rosenberg (mail) (www):
Do professors who believe that it is a good idea to admit minorities with lower LSAT scores than non-minorities also believe that, once admitted, minorities should be graded according to a lower standard than other students?

Many (though certainly not all) defenders of racial preferences in admissions believe that colorblind admissions is discriminatory -- at least that it, like the LSAT, has a disparate impact. But if colorblind admissions would be discriminatory (I make it conditional, since I'm not sure it still exists anywhere), why isn't the widely followed practice of identity-blind grading equally discriminatory?
3.4.2006 12:01pm
John Rosenberg (mail) (www):
My question above about the connection (or lack of it) colorblind admissions and blind grading reminded me, after I posted it, of some questions prompted by this passage from pp. 204-205 of Bill Clinton's autobiography, My Life:
I'll never forget reading one black student's exam paper with a mixture of disbelief and anger. I knew he had studied like a demon and understood the material, but his exam didn't show it. The right answers were in there, but finding them required digging through piles of misspelled words, bad grammar, and poor sentence construction. An A's worth of knowledge was hidden in the bushes of an F presentation, flawed by things he hadn't learned going all the way back to elementary school. I gave him a B-, corrected the grammar and spelling, and decided to set up tutoring sessions to help transform the black students' hard work and native intelligence into better results. I think they helped, both substantively and psychologically, though several of the students continued to struggle with their writing skills and the emotional burden of having one foot through the door of opportunity and the other held back by the heavy weight of past segregation.
If anyone is interested, I discussed those questions here.
3.4.2006 12:18pm
Been There Done That:
Joseph Slater,

Let's see if you'll be so smug about your superstitious beliefs about genes, race, and intelligence after reading the paper below: (PDF)


http://tinyurl.com/cxhmw
3.4.2006 1:12pm
Been There Done That:
3.4.2006 1:13pm
Mikeyes (mail):
There would be one advantage to not having LSATs vis-a-vis the rankings, each school that used LSATs to help parse out the applicants would then have more applicants as more people would think they have a chance to get into the top tier school. This would lead to a smaller acceptance rate and that rate would possibly move you up in the rankings as the USNWW would have to find other means to evaluate the exclusivity of the school.

This is the line that my college is using to justify the dumping of the SATs. And they were right. There were 6,000 more applicants this year than last year and the acceptance rate is halved. Since they already know what to look for in a student based on grades, school, and recommendations (and legacies and athletic ability), the student body will remain about the same academically.
3.4.2006 1:25pm
Beerslurpy (mail) (www):
I've said it in previous threads and I'll say it again, the LSAT discriminates against stupid, lazy and illiterate people. If you cant pass the very low hurdle of the LSAT, you have no business expecting to attend a tier 1 or 2 school. The amount of effort and intellect required to do well on the LSAT is small compared to the effort and intellect required to get through law school and pass the bar.
3.4.2006 1:26pm
Brett Bellmore (mail):
I suspect that the chief motive for getting rid of the LSAT, given prior behavior of AA advocates, has nothing to do with a genuine belief that the LSAT is racially biased.

Rather, if schools don't obtain and record numerical, easily analyzed measures of their applicants' academic qualifications, it becomes much more difficult to prove in court that an affirmative action program is throwing merit out the window, rather than just using race as a "tie breaker".

Other measures will still exist, of course, but in sufficiently complex and subjective form that the whole issue can be dismissed as differing judgment.
3.4.2006 2:14pm
Kovarsky (mail):
Well I don't want to get rid of the LSAT, i want to increase the penalty for securing help on the writing requirements, and I would diminish the importance of undergraduate grades, because there's so much statistical noise with those that they don't really predict anything. I love how you can speculate in the same breath that disparate impacts are not racially motivated but the desire to get rid of the test is. Personally, I think neither is, but consistency is the hobgoblin of little minds I guess.

Brett, do you have a shred of proof for your idea that schools just want to get the LSAT out of the way so they can more aggressively discriminate without being caught, or are you just speculatin' 'bout a hypothesis.

Also, if you seek to prve the existence of race, you can't assume races exist by looking for traits the correlate with race! When you make statements like "[this or that] correlate with what race could be" you betray the fact that you're not really interested in testing whether race as we think of it exists. the tests are actually quite simple. There are traits A-Z. We think of traits A (skin color) and B (cheekbones) as "racial." However, science shows that traits A and B are actually shitty predictors of traits C-Z, wheras trait M, which isn't readily observable, is more appropriately qualifid as "racial" because it is a far better predictor of genetic variation. in simple man's terms, race is race because we can see it, not because it really means anything scientifically.
3.4.2006 3:39pm
JosephSlater (mail):
Bruce:

Again, while "black" and "white" aren't different "races" biologically, black vs. white matters because of how people have been treated historically and are treated today. Surely you can grant that there can be real discrimination by one identifiable group against another, even if there's no biological difference: think of discrimination by one religious group against another, for example.

What exactly we should do about historical and ongoing discrimination is, again, not always an easy question to answer, and I'm certainly not suggesting there is an easy, obvious answer to the affirmative action issue. I'm just saying genetics is not the issue.
3.4.2006 6:01pm
Marcus1 (mail) (www):
I actually agree with Bellmore's speculation. Of course, there isn't direct evidence of their motives, but it's fairly intuitive. Before Grutter, schools could pretty brazenly just ignore LSAT scores with certain groups, so they didn't really mind that schools used them. Now that they're supposed to avoid quotas, though, the LSAT becomes more binding. Thus, they next option is just to get rid of it altogehter. That way it's much easier to just pick whoever they want. Which is problematic, I think, for everybody.

As to whether disparate impact is evidence of discrimination, though, my whole point was that it was evidence, not proof. As in, it's relevant, as in it tends to make the existence of discrimination more likely than it would be in the absence of disparate impact. I'm not sure one can disagree with that.

Kovarsky,

Again, it's not affirmative action opponents who should be forced to prove that one group is smarter than another. The point is simply that it is an assumption of affirmative action that there can be no innate differences between groups, even though that assumption is counterintuitive and unproven.

As far as whether there are classifiable races, though, I think it's obvious. We know that historical groups (racial groups) are specifically prone to certain illnesses. We know that they do better and worse in different endeavors. We know that white Swedes are rarely born with black curly hair, and that black Somalians are rarely born with blonde hair and blue eyes. It really is that simple.

The point of acknowledging races, though, isn't to say that there are a bunch of significant differences beneath the surface. The point is simply that there is such a thing as Japanese, and they differ in certain ways from Inuits. The differences may indeed be 99.9% cosmetic, but that doesn't mean they don't exist. There's obviously such a thing as race. Indeed, the whole idea of affirmative action is explicitly conditioned on it.

In truth, though, that whole argument is a smokescreen. It doesn't matter whether there is such a thing as a "Japanese race" when I say, for instance, that we simply have no basis for assuming that Japanese and Chinese people should produce just as many figure skaters, on average, or do just as well in algebra, on average. If it turns out that Catholics do better on the LSAT than Protestants, I think it would be just as misguided to initiate an affirmative action program for Protestants, or to assume that there is anything wrong with the LSAT.
3.4.2006 6:40pm
Veritas Now:
One hypothesis for explaining black underachievement as compared to whites in intellectual pursuits is racism and discrimination practiced by whites.

Another hypothesis is that genetics plays a substantial role in intellecutal achievement and that genetics is the cause of black underperformance in intellectual endeavors. If the genetic hypothesis is true, it is highly relevant to issues of affirmative action and attempts to have the percentage of blacks in an intellectual field mirror the general population. To fail to see how extremely relevant this is, if true, is to be willfully blind.
3.4.2006 7:33pm
Kovarsky (mail):
Marcus1,

The point is simply that it is an assumption of affirmative action that there can be no innate differences between groups, even though that assumption is counterintuitive and unproven.

No, that is not an assumption of affirmative action. Affirmative action takes observed (not innate) differences between groups, and assumes that those differences are not justified to the extent that they are not innate.

It doesn't deny the existence of innate differences. That is, of course, if what you mean by "innate differences" is that black people have dark skin and white people have light skin. If you mean that affirmative action denies the existence of "innate differences" in the sense that it denies that all other things being equal, white people are smarter then black people, then well yes, I suppose it assumes that those existences do not exist. Do you deny that assumption?

I think the problematic assumption about affirmative action is that it can FIX existing inequalities involving the distribution of educational assets, not that it naively assumes that distribution does not exist.
3.4.2006 8:05pm
Kovarsky (mail):
Veritas Now,

Another hypothesis is that genetics plays a substantial role in intellecutal achievement and that genetics is the cause of black underperformance in intellectual endeavors. If the genetic hypothesis is true, it is highly relevant to issues of affirmative action and attempts to have the percentage of blacks in an intellectual field mirror the general population. To fail to see how extremely relevant this is, if true, is to be willfully blind.

Sure, if genetics played a role, it's relevant to affirmative action. The problem is that only an infinitesmally fraction of scientists believe that there are meaningful genetic differences in inherent intelligence between "races." And the fact that would stridently make this point, seemingly oblivious to the scientific evidence that requires us NOT to make that assumption, is what is willfully blind.
3.4.2006 8:51pm
Veritas Now:
Kovarsky,

Your assertion about an "infinitesmally fraction of scientists" is FALSE.

See:

http://tinyurl.com/cxhmw
3.4.2006 9:05pm
Brett Bellmore (mail):

Affirmative action takes observed (not innate) differences between groups, and assumes that those differences are not justified to the extent that they are not innate.


What's missing here is the possiblity that a difference can be non-inate, and still nothing we have to move Heaven and Earth to erase the consequences of.

Suppose as a cultural matter, blacks placed less value on good study habits. (I wish that were merely hypothetical.) That wouldn't be inate, but it would hardly be cause to throw meritocracy to the winds, and admit blacks who'd profited very little from their prior education, in place of people who'd worked hard to qualify for admission.
3.4.2006 9:43pm
Kovarsky (mail):
Brett,

I'm not sure what you're saying here. I think I've said somewhere between 10 and 20 times now that I don't think that the presence of non-innate differences justifies AA. For example,:

Despite your protests, I'm not sure how many people dispute that there actually is some statistically significant disparate racial impact. The problem is that there's no real way to correct for that phenomenon without making all kinds of other sacrifices. ;

or when I said:

I know that I have to keep underscoring this, but I don't agree with Randall. I'm just saying that it's not an anathema to suggest that the test has a disparate racial impact. The rubber hits the road when you're talking in terms of what to about it.

that's just two examples of me quite expressly distancing myself from the claim that you seem to imply i have made. of course the status of a trait as non-innate does not trigger and AA requirement.

And if you look at the context of my comment, is in response to someone arguing that AA assumes that characterists are not innate. At the risk of sounding like a first year law student, it's the "all dogs are animals but all animals are not necessarily dogs" argument. In order to trigger affirmative action, the asset affirmatively acted on behalf of probably has to be non-innate, but a non-innate asset (or lack thereof) does not automattically trigger affirmative action.

By the way, I think there could be an argument for affirmative action based on traits that were nonetheless "genetic" (think gender and sports), but I don't have the patience to expand the scope of my argument that much right now.
3.4.2006 10:20pm
Kovarsky (mail):
before anybody freaks out about my women in sports comment is just that everybody does not think the WNBA is awesome.
3.4.2006 10:27pm
Kovarsky (mail):
Veritas Now,

Did you really think I was going to miss that practically in the first paragraph of that article it concedes it is giong against a strong scientific consensus?

Or did you really think that I wasn't going to respond with a point that even the Bell Curve makes, which is that a more precise statement is that minor differences in black-white IQ could be attributable to genetic factors OR to slight biases in the the IQ test.

So,

Your assertion about an "infinitesmally fraction of scientists" is FALSE.

Wrong.
3.4.2006 10:31pm
Brett Bellmore (mail):
Going back over this thread, it appears to me that I wasn't so much reacting to your expressed views, as to the reactions to them. Although I DO still think your use of the term "bias" represents an instance of the falacy of equivocation.
3.5.2006 7:22am
Marcus1 (mail) (www):
Kovarsky,

>It doesn't deny the existence of innate differences. That is, of course, if what you mean by "innate differences" is that black people have dark skin and white people have light skin. If you mean that affirmative action denies the existence of "innate differences" in the sense that it denies that all other things being equal, white people are smarter then black people, then well yes, I suppose it assumes that those existences do not exist. Do you deny that assumption?<

With respect, I resent the question, because I think you are speaking in inflamatory and unscientific terms. Do I believe that "white people are smarter than black people"? No; I have no idea how that statement would be supported. I believe it is incredibly unhelpful, and indeed racist, to assert that one race is "smarter" than another. Do I reject the assumption, however, that blacks and whites (as imprecise as those terms are) are, on average, going to have the exact same aptitude in every single theoretical endeavor, again, on average? Yes, I deny that assumption.

Of course, in many circles (I would guess the circles you travel in, and indeed the circles I travel in as well), even that statement is considered racist. I think such a view is patently wrong, however, and unhelpful. One day, I think that members of particular groups will strive in particular areas without caring where their group comes out on average in that endeavor. I, as a white person, will try to be the world's best mathematician, without worrying that Chinese people are actually better, on average, at mathematics, than white people are. Indeed, I think people will stop caring so much which groups come out, on average, where. Because, again, I think that discussion is just one big mess.
3.5.2006 2:55pm
Anonymous Dartmouth '05/current law student:
The LSAT does more then just disadvantage minorities, it also severely disadvantages people with disabilities. The Law School Admissions Council, the folks who create and administer the LSAT are notorious for being reticient to give accomodations to people with disabilities, regardless of their documentation. And if they turn down a student with a documented disability, one who has been accomodated for as long as the student has been in school, they will not say why. They will say that the student can submit more documentation if they feel the decision has been in error, but they do not say what documentation might be absent from the already submitted documentation.
3.5.2006 8:59pm
al:
Perhaps this is a stupid question or already answered, but why do law schools need to compensate for low minority LSAT scores after these applicants have had 4 years of college? I understand the disadvantaged elementary through high school education/correlation with lower SAT scores argument, but why does this apply to LSATs? These applicants attended and graduated from college. Is the playing field still so unlevel after 4 years of college or 4 years of having the same opportunity as anyone else for self-improvement through self-initiated study and reading?

Also, many caucasion law school graduates take out bar study loans or work during barbri to pay it. Is there a reason why minorities are unable to do the same and thus be equally as prepared as anyone else taking the bar?
3.5.2006 10:25pm
Kovarsky (mail):
Brett,

For the love of god. I'm not into correcting spelling, but you've now accused me of the "falacy of equivocation" three times. If you're going to make a fancy-schmancy sounding allegation over and over again, at least spell it correctly.

Look, I appreciate what you are trying to say - your point is that I'm bleeding the term bias from its descriptive into its normative meaning. I'm just asking that you show me where I've gone it, as I'lve already taken the time to do a control+f on every time I used the word "bias" in this thread to try to refute your generalized accusation.
3.5.2006 10:32pm
Kovarsky (mail):
Marcus1,

You don't do a particularly good job of explaining why my rhetoric is unscientific or inflammatory. All I was saying was the affirmative action seems to deny the existence of innate differences in intelligence.

I was crystal clear on the point that it does not follow from the absence of innate differences that affirmative action is justified. I just made the point that the assumption about which were speaking - that there is no innate difference - is generally not considered the achilles heel of affirmative action.

And the reason why the "innate differences" in intelligence argument is frowned upon is because it goes against a considerable scientific consensus (see the second paragraph of the article forwarded to me above) and suggests that blacks are genetically dumber. When people insist on adopting a disfavored scientific viewpoint, it is usually not because they've done the research and understand the data, it's because they WANT to agree with the inferences of the disfavored position. That motivation is quite suspect, and is therefore frowned upon as racist. Unless you have done the research and understand the data, this attitude that you are speaking truth to power because you think there are genetic differences in intelligence is revolting. So I'm not really concerned if you're offended by my remarks, and I wouldn't speculate about the circles I run in.
3.5.2006 10:44pm
Marcus1 (mail) (www):
Kovarsky,

I think you should avoid devolving to name calling, unless you are so extremely sure of the logic and obviousness of your position that you simply know that anybody who disagrees with you could be nothing other than a degenerate.

Let's say your assumptions about my motives are completely wrong. Would that bother you?
3.6.2006 1:55am
Kovarsky (mail):
Marcus1,

I'm not real clear how I name called, but that's ok. My position is this:

IF there is scientific consensus that there is no genetic difference in intelligence, and

IF you are not the type of person tho understands serious statistical studies, etc., and

IF you - despite your lack of topical familiarity with data analysis - choose to ignore the consensus of those who are practitioners;

THEN you have to have a reason for adopting the disfavored interpretation of data that has to do with something other than your understanding of chi square regressions and collinearity. If, in this context, you are not familiar with the data but you still insist that there is a genetic difference in intelligence, you've got to ask yourself why.

I tend to defer to the experts when I don't understand something, unless there is something I don't think they're considering. You don't suggest that the wealth of data running contrary to your hypothesis is scientifically flawed - you just don't want to believe it. By doing that sort of thing, in the face of scientific evidence with which you are not familiar first hand, I think its bizarre that you don't consider yourself fair game for that kind of speculation.

And you can scream and stamp your feet and put your fingers in your ears about this one all you want. You've got to give me something else to explain to me why this seemingly irrational speculation does not come from a good place. Some suggestions might include: you don't trust the newfangled scientists; the scientific consensus I'm talking about is not actually there (you're going to have a problem on this one); or that you have a particular reason to believe that the studies in the majority camp are somehow flawed.

You have done none of that. You just seem to think that you're speaking truth to power, but speaking truth to power is not the same thing as advancing an utterly irrational position whose motivation objectively looks like a racist one. You just seem to want to believe in the fact of the genetic difference because of the inferences that come from that belief; not from the fact of any data on the subject.

I certainly don't think opposition to affirmative action is racist. I myself am on the fence a lot of the time. But if that opposition is based not on the belief of AA as an imperfect remedy, but instead on the belief of inherent genetic inferiority of blacks, then I have a real problem with that.

So what are your motives - skepticism of science? religion? please enlighten.
3.6.2006 2:55am
Marcus1 (mail) (www):
Kovarsky,

You're making an incredible number of assumptions with an incredible abount of certitude. I think you would benefit from being a little more cautious.

As far as any scientific concencus on the issues, I am indeed skeptical that it is as clear as it is made out to be. One major problem here is the incredible social stigma which accompanies, for good reason, any attempt to prove that there are innate differences, on average, between different races. As such, I have a strong reason to believe that a tally of pros and cons is going to be highly suspect.

Moreover, the scholarship which I have read tends to be a great deal stronger in support of the idea that there are in fact subtle differences, on average, between different races. On your side, we have a lot of gobbelygook about how there really isn't any such thing as races at all. We have a lot of smokescreens thrown up which merely serve to obscure the statistics. Case in point: your commment that there are bigger differences between individuals in a group than there are between the averages of different groups, a fact which is great, but completely irrelevant. I mean, without a specific document to look at, it's difficult to point out all of the statistical and logical errors. Suffice it to say, however, that I find it very easy to discern the effect of political correctness in the scholarhsip that so adamantly argues we are all exactly the same.

Your comments about familiarity with the data sound just a little too smug, though. I could be familiar with the data or not, and still be perfectly justified in forming my own opinion. In fact, I'd say that it would only be if I were very familiar with the scholarship that I would have any duty to account for it. Your average person does not have a duty to consult experts before forming an opinion. And when the average person is facing experts making such claims as that "race doesn't exist," (Oh, so that's why we see so many Chinese looking babies born to Mexican parents...) then I would personally put more faith in the reasoning of the average person than the supposed experts. Because whatever valid point the experts have, they're clearly not being straight-forward in presenting it.

And indeed, I think this is one of the serious problems with the progressive position on race. It is so far out there, that it has completely left the realm of comprehensibility. Thus, the fact is that you don't have to be a racist to dissent -- you simply have to find it a bit ridiculous when a bunch of Harvard professors are trying to tell you that a black couple could just as well have a white baby, and they wouldn't be surprised. Or you might simply think that Chinese people seem to be better at math. Or you might simply think that Kenyans seem to be built to run pretty good marathons.

Is that kind of thinking revolting? Well I guess it is, if you say so. When you try to turn it into, "Oh, well you're trying to say that white people are smarter" than this or that group, though, I think you are the one turning it into something contentious. I don't think most people would naturally find anything offensive about the idea that one group might, on average, perform better at a particular task than another group on average. We all know that members of any group can exceed to the top of any field.

Thus, my whole point is that, where the averages come out should not be considered a contentious issue. The progressive position should be that it simply doesn't matter. If you think this position is racist, then I think you need to get out more.
3.6.2006 4:28am
Guest2 (mail):
Anonymous Dartmouth '05/current law student wrote: "The Law School Admissions Council . . . [is] notorious for being reticient to give accomodations to people with disabilities[.]"

I don't usually comment here on errors of grammar, usage, etc., but Anonymous Dartmouth has made an error that bothers me immensely whenever I see or hear it. "Reticent" means disinclined to speak up, not reluctant or hesitant (even though some lesser dictionaries don't rule out the latter meaning).
3.6.2006 12:53pm
Mikeyes (mail):
Guest 2,

I guess you must disagree with the point made by if you are going to be that picky. Most of the dictionaries I looked at had "unwilling" as a third definition for the word "reticent" and I don't think anyone was fooled by the minor use of the word. Judging by your reaction, however, the usage might make you nauseated (as opposed to "nauseous") ;~)
3.6.2006 5:11pm
Guest2 (mail):
Yes, indeed -- it makes me feel nauseated!
3.6.2006 7:29pm
Kovarsky (mail):
wait, whats the difference?
3.6.2006 7:45pm
Guest2 (mail):
wait, whats the difference?

Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed. 1995). Used copies are available on Amazon, starting at $16.24. Buy it, use it, recommend it.
3.7.2006 8:54am
Marcus1 (mail) (www):
Kovarsky,

Curious what you would think of this article:

Still Evolving, Human Genes Tell New Story

Seems kind of at odds, to me, with the idea that we should all be on average exactly the same in every (non-visual?) respect.
3.7.2006 10:04am