In 2018, the American Bar Association’s Council on the Section of Legal Education and Admissions to the Bar considered a proposal dropping the requirement of an admissions test for law schools. I wrote about it at the time over at PrawfsBlawg (worth a read!). The proposal did not advance. Many of these points hold true, but I’ll look at how a new proposal differs and what might come. The proposal is still in its early stages. It’s possible, of course, that the proposal changes, or that it is never adopted (as the 2018 proposal wasn’t).

To start, many law schools currently admit a non-trivial number of students without the LSAT. Some of those are with the GRE. A few are with the GMAT. Several admit students directly from undergraduate programs with a requisite ACT or SAT score. The GRE has gained more acceptance as a valid and reliable predictor of law school admissions, although how USNWR uses it in calculating its rankings is not how ETS recommends using the GRE.

The 2018 proposal concluded, “Failure to include a valid and reliable admission test as a part of the admissions process creates a rebuttable presumption that a law school is not in compliance with Standard 501.” The 2022 proposal is even more generous: “A law school may use admission tests as part of sound admission practices and policies.” No rebuttable presumption against.

There are varying levels of concern that might arise, so I’ll start with the point that I think inertia will keep many law schools using not just standardized tests but the LSAT.

First, the most significant barrier to prevent a “race to the bottom” in law school admissions: the bar exam. As it is, schools must demonstrate an ultimate bar passage rate of 75% within two years of graduating. That itself is a major barrier for dropping too low. Even there, many schools do not like an overly-low first-time passage rate, and student take note of first-time bar passage rates, which have increased importance in the USNWR rankings.

Now, some states have been actively considering alternative paths to attorney licensing My hunch—and it’s only a hunch—is that this move by the ABA will may actually reduce the likelihood that state bars will consider alternative pathways to attorney licensing beyond the bar exam, such as version of “diploma privilege.” If state bars are concerned that law schools are increasingly likely to admit students without regard to ability, state bars may decide that the bar exam becomes more important as a point of entry into the profession.

Of course, this isn’t necessarily true. If schools can demonstrate that they are admitting (and graduating) students with the ability to practice law to the ABA, and perhaps to the state bars, then that could elevate trust. But state bar licensing authorities appear to have long distrusted law schools. We’ll see if these efforts complicate proposals for bar exam reform, or simply highlight closer working relationships with (in-state) law schools and bar licensing authorities.

In short, unless schools come up with adequate alternatives on the admissions front to address bar passage at the back end, it’s unlikely to be a drastic change. And it might be that efforts in places like Oregon, which are focused on both the law school side and the consumer-facing side of the public, will assuage any such concerns.

Second, a less obvious barrier is legal employment. That’s a tail-end problem for inability to pass the bar exam. But it’s also an independent concern among, say, large law firms or federal judges to choose from graduates with the highest legal ability. There are proxies for that, law school GPA or journal service among them. But the “prestige” of an institution also turns in part on its selectivity, measured in part by the credentials of high LSAT scores. If firms or judges are less confident that schools are admitting the highest caliber law students, they may begin to look elsewhere. This is a complicated and messy question (alumni loyalty, for instance, runs deep, and memories of institutional quality run long), but it may exert some pressure on law schools to preserve something mostly like the status quo.

Third, for admissions decisions of prospective students, there’s a risk about how to evaluate GPAs. For instance, it’s well known that many humanities majors applying to law school have disproportionately higher GPAs than their LSAT scores suggest; and that hard sciences majors have disproportionately lower GPAs than their LSAT scores suggest. The LSAT helps ferret out grade inflation and avoids collegiate major grading biases. It is not immediately clear that all admissions decisions at schools will grasp this point if the focus shifts more substantially to UGPA as the metric for admissions (which is less accurate a predictor of Law school success than LSAT, and less accurate still than LSAT and UGPA combined).

Fourth, who benefits? At the outset, it’s worth noting that all schools will still indicate a willingness to accept the LSAT, and for law students interested in the broadest swath of application interest are still going to take the LSAT. Additionally, it’s likely that schools will continue to seek to attract high-quality applications with merit-based scholarships, and LSAT (or GRE) scores can demonstrate that.

One group of beneficiaries are, for lack of a better word, “special admittees.” Many law schools often admit a select handful of students for, shall we say, political or donor reasons. These students likely do not come close to the LSAT standards and may have the benefit of avoiding the test altogether. (Think of the Varsity Blues scandal.)

A second group of beneficiaries are law schools with a large cohort of undergraduates at a parent university that allows for the channeling of students into the law school. Right now, schools are capped at how many students can be admitted under such programs with an LSAT requirement as opposed to only a UGPA and some ACT or SAT requirement. That cap is now lifted.

Relatedly, pipeline programs become all the more significant. If law schools can develop relationships with undergraduate institutions or programs that can identify students who will be successful in law school upon completion of the program, it might be that the law school will seek to “lock” these students into the law school admissions pool.

In other words, it could most redound to the benefit of law schools with good relationships with undergraduate institutions, both as a channeling mechanism and as a way of preventing those students from applying to other schools (through a standardized test). We may see a significant shift in programming efforts.

There are some who may contend that racial minorities and those from socio-economically disadvantaged backgrounds will benefit, as they tend to score lower on standardized tests and bear the brunt of the cost of law schools adhering to standardized testing. That may happen, but I’m somewhat skeptical, with a caveat of some optimism. The LSAT is a good predictor of bar exam success (and of course, a great predictor of law school grades, which are a great predictor of bar exam success), so absent significant bar exam changes, there will remain problems if schools drop standardized testing in favor of metrics less likely to predict success. That said, if schools look for better measures in pipeline programs, things that prospective students from underrepresented communities can do that will improve their law school success, then it very well could redound to the benefit of these applicant pools and potentially improve diversification of the legal profession. But that will occur through alternative efforts that are more likely to predict success, efforts which we’re beginning to see but are hardly widespread.

Finally, what about USNWR? Unless many schools change, it seems unlikely that USNWR would drop using LSAT and GRE as a metric. Many schools, as noted, already have a cohort that enters without any standardized test scores that are measured in the rankings.

But we can see how the rankings have been adjusted for undergraduate schools:

A change for the 2022 edition -- if the combined percentage of the fall 2020 entering class submitting test scores was less than 50 percent of all new entrants, its combined SAT/ACT percentile distribution value used in the rankings was discounted by 15 percent. In previous editions, the threshold was 75 percent of new entrants. The change was made to reflect the growth of test-optional policies through the 2019 calendar year and the fact that the coronavirus impacted the fall 2020 admission process at many schools.

. . .

. . . U.S. News again ranks 'test blind' schools, for which data on SAT and ACT scores were not available, by assigning them a rankings value equal to the lowest test score in their rankings. These schools differ from ones with test-optional or test-flexible admissions for which SAT and ACT scores were available and were always rank eligible.

It’s possible, then, that alternative rankings weights would be added to account for schools that had increasing cohorts without standardized test scores. But, as long as it remains a factor, I imagine most law schools will continue to do everything in their power to focus on maximizing the medians for USNWR purposes, as long as the incentives remain to do so.

*

In short, it’s quite possible that we’ll see a number of innovative developments from law schools on the horizon if the proposal goes through. That said, I think there are major barriers to dramatic change in the short term, with a concession that changes in other circumstances (including the bar exam, improved undergraduate or pipeline programs, and USNWR) could make this more significant in the future.

But I’d like to suggest two points of data collection that may be useful to examine the change. First, it would be useful if law schools, perhaps only those with more than 10% of their incoming class who enter without standardized test scores, disclose the attrition rates of who had a standardized test and those who did not. Second, it would be useful if they disclosed the cumulative and ultimate bar passage rates of each cohort. I think this information would help demonstrate whether schools are maintaining high standards, both in admission and in graduation, regardless of the source of admission. But, law schools already disclose an extraordinary amount of information, and perhaps those will just be quietly disclosed to the ABA during reaccreditation rather than in some public-facing capacity.