Guest Post — Jay Rosner — Response to Kevin Washburn

This is the third in a series of posts:

(1) Guest Post — Jay Rosner: The LSAT vs. the GRE: May They Both Lose
(2) Guest Post — Kevin Washburn: The LSAT’s Key Role in Native Legal Education

I’m honored that Prof. Kevin Washburn took the time to respond to a Turtle Talk post of mine.   I had deeply criticized both the LSAT and GRE, but I expressed the hope that the movement to accept both in law school admissions will subject both to the kind of scrutiny, particularly on their disparate impacts, that will be more difficult for them both to withstand.

Prof. Washburn’s post, entitled “The LSAT’s Key Role in Native Legal Education,” emphasized that “… if the LSAT lost its leading role in legal education … it could be bad.  Very bad.”  He then tells the uplifting story of PLSI, which has an admirable record helping 25-35 Native students each year, for decades, succeed in law school by providing them with excellent summer instruction, stipends and role models, among other supports.  He clearly is a proud alumnus of that program.

Prof. Washburn’s primary defense of the LSAT is that its developer, LSAC, has played a major role in funding PLSI over the years.  LSAC is to be commended for that; however, I submit that for those of us advocating fair representation in the legal profession, LSAC’s only positive attribute is its support for PLSI. Continue reading

Guest Post — Kevin Washburn: The LSAT’s Key Role in Native Legal Education


By Kevin Washburn

In this morning’s post on Turtle talk, Mr. Jay Rosner asks what would it mean for Native Americans and law schools that seek to increase their numbers of Native students if the LSAT lost its leading role in legal education.

The answer: it could be bad. Very bad.

Indeed, it could kill the PreLaw Summer Institute (PLSI) at the American Indian Law Center located the University of New Mexico School of Law, which helps Native law students succeed in law school — and helps law schools recruit Native students.

The PLSI program, which is about to celebrate its 50th anniversary, began out of a desire to meet the federal trust responsibility to tribal nations in part by developing more Native lawyers.  It was supported originally with federal funding. It takes a couple of hundred thousand dollars each year provide travel and living stipends to the 25 to 35 students who attend the two-month PLSI program each summer and to pay the professors and staff who run the program. The professors are excellent and it can be a life changing experience for the students. Professors Matthew Fletcher and Wenona Singel have taught in the program, as have many of the other leading law professors in the field.

For years, the program existed at the whim of federal officials, some of whom were supportive, and some who were not. Its funding has tended to vacillate over the years and, indeed, for a couple of years in the 1980s, the program did not exist at all.

At least twice in the PLSI’s history, the Law School Admission Council (LSAC) has come to the rescue when the PLSI program lost federal funding. For decades, the LSAC has annually directed modest revenues from its reserves toward various pipeline programs for law schools, to help poor and minority students gain access to a legal education.

In times of crisis for the PLSI, funding from the LSAC has literally saved the program. In total, during the last three decades, the LSAC has provided more than $3 million in funding at various times to keep the PLSI program alive.

Most of us are ambivalent in legal education about standardized tests, especially the most important one of all, the bar exam. It is true that standardized tests can produce disparate outcomes in scores. No one who sees inequities in society will be surprised by these disparities. Psychometricians who design the LSAT work very hard to identify raw analytical ability and to minimize the advantages that “wealth” might contribute to test scores. But inequality in education surely exists in our society, and none of us are terribly surprised that it cannot be entirely eradicated from tests.

We should keep working on the perfect test that can find a way to eradicate any influence, even indirectly, that socioeconomic factors play. In the meantime, in light of the fact that the bar exam will always be an obstacle to be overcome for anyone seeking to become a lawyer, I am grateful for the pipeline programs supported by the LSAT, and I do not want to see them disappear.  Because of my own personal interest in pipeline programs, I have served within the volunteer board structure of the LSAC and am currently a member of the board. I also recently joined the board of the American Indian Law Center, which runs the PLSI. I am writing today not on behalf of either of these two organizations, but only myself.  From my perspective, the collaboration between the LSAC and the PLSI program has dramatically improved the number of Native American lawyers in the United States. Indeed, the PLSI program is sometimes called the single most successful program in Native American education. That program changed many lives, including my own.

I am glad that Mr. Rosner has asked what it might mean for Native American law school applicants and law schools seeking more Native Americans to lose the support of the LSAC as a leader in legal education. It is important that we all understand the answer: a program that has helped more than a thousand Native Americans succeed in law school in the last 50 years might be at risk. In sum, the answer is that it could be devastating for Native Americans seeking a legal education.

Guest Post — Jay Rosner: The LSAT vs. the GRE: May They Both Lose

The LSAT vs. the GRE:  May They Both Lose

The monopoly that the LSAT has enjoyed for decades in law school admissions appears to be eroding.  What does that mean for Native American law school aspirants, and for the law schools that desire to increase their number of Native students?

Up until yesterday, the fight to be able to use the GRE in law admissions instead of the LSAT had been led by the University of Arizona Law School, which had accepted a small number of students with GRE scores.  A few other law schools had been studying the possibility, but no other law school joined Arizona until yesterday, when Harvard Law announced that they too would consider the GRE from applicants.

For the foreseeable future, the impact on law admissions will be symbolic only.  Arizona and Harvard will each only accept a small number of applicants based upon their GRE scores, and until a few dozen more law schools join them, the total number of applicants affected may be a few hundred out of tens of thousands.  So, while the current discussion may have substantial implications years down the road, today’s applicants will find this a niche play at best.

The LSAT vs. GRE discussion will likely generate more heat than light.   Folks will look at their differences, which are worth noting:

  • The LSAT is a pencil and paper test, while the GRE is delivered on computer;
  • The LSAT is offered only 4 times per year, while the GRE is offered almost continuously throughout the year;
  • ¾ of the LSAT’s bubble sections, generating its score, are verbal, and only ¼ (one section, informally called “Games”) involves some math-related sensibilities, while fully ½ of the GRE bubble sections are straightforward math, and 1/2 are verbal; and,
  • Under the current rules, a student must report an LSAT score to a law school if he/she has taken it, so only students who have taken the GRE and not the LSAT will have their GRE solely considered.

What most LSAT vs. GRE comparisons will miss are the profound and important ways that these two tests are similar, and both deeply problematic.  Both are created by psychometricians using the same methods, so they share these significant characteristics:

  • They both generate significantly disparate results by gender, race and ethnicity, with Native Americans, Latinos and African Americans scoring much lower on both, on average, than whites and Asian Americans, and females scoring lower than males;
  • The foundation for these disparities could be revealed by item level data, which are statistics on individual test questions that test developers routinely refuse to release because they would expose the way that tests are designed to solidify and maintain those disparities;
  • Scores for both are affected by inequitable access to high-quality, often expensive, test prep, with groups like Native Americans penalized because Native students often can’t afford to pay for test prep courses; and,
  • What equity activists need to do is try to reduce, and even eliminate, the weight that any bubble test is given in any competitive admissions (or financial aid, etc.) decision.

While the last concept may seem fanciful in the law school admissions world, we now have many highly selective undergraduate schools, like Wake Forest, Wesleyan, Mount Holyoke, etc., that have years of successful experience with test-optional admissions policies that serve to reduce the bubble-test burden faced by URM students.

Any Native educators supporting either the LSAT or the GRE are, I contend, missing the forest for the trees.   Bubble tests are designed in a way that Native students are placed at yet another disadvantage in admissions, and these tests should be made optional until they are eliminated entirely.

It should be noted that multistate bar scores will tend to correlate with LSAT (or GRE) scores, since all bubble tests have high correlations with other bubble tests.  That’s not a reason to keep the LSAT; that’s a reason to make sure that all Native bar takers have the benefit of high-quality bar-prep courses to leverage their ability to get their best score on the multistate.