I was pleased to see Professor Sheldon Lyke's attempt to defend Whittier's admission practices. His post raised many questions in my mind. In this reply, I will pose some questions to Professor Lyke that I hope he will answer in a future post. I encourage other readers to add additional questions for Professor Lyke in the comments.
1. You suggest that Whittier and its peer schools should be celebrated for providing an opportunity to "students at the margins of society." I generally don't consider college graduates to be at the "margins of society." What exactly do you mean by "the margins of society"?
2. What evidence is there that lower-tiered law schools such as Whittier are providing an opportunity to enter the legal profession for those students that you deems to be "at the margins of society" at greater rates than higher-ranked law schools, as opposed to merely providing a place for students from all walks of life who have undistinguished college records and test scores revealing poor aptitude for the study of law?
3. Given the strong emphasis placed on diversity by both the ABA and AALS, it has been my observation that virtually every law school in the country seeks to achieve a significant degree of diversity through fairly aggressive affirmative action in admissions, to the extent permitted by law. Since lower-tiered schools are already admitting majority students with, at best, marginal predictors, could it not be argued that if these schools lower their standards even further to enroll a significant number of minorities, that they are simply exploiting minority students who have little likelihood of success?
4. The students from the bottom quartile of LSAT scores admitted at any given law school typically do not receive the same scholarships or tuition discounts as students with LSAT scores in the top quartile at the same school. Indeed, the highest risk students are most likely to pay full sticker price, effectively subsidizing the education of their better qualified peers who are more likely to graduate, pass the bar, and obtain a JD-required job. Do you believe this is fair way to treat the "poor and black & brown racial and ethnic minorities" who are more heavily represented in the bottom quartile of the class?
5.(a) What is your source for the claim that the LSAT is "at best a weak predictor of first-time bar passage"? (b)Is it only the 25 year old LSAC study that you accused LST of over-relying upon? (c) What about the other more recent studies that have found a stronger correlation?
Comment: As I explained in response to a reader comment yesterday, there is a significant body of research much more recent than the LSAC study, proving that LSAT Scores are strongly correlated with bar passage rates. For example, there was a a very detailed report prepared by the NCBE for the The New York Board of Law Examiners in 2006 with a large sample size . The authors found “The correlation of bar examination scores with LSAT scores is fairly high”
http://www.nybarexam.org/press/ncberep.pdf (See Section 5)
A 2004 article in the California Western Law Review states: “There is an extremely high correlation between LSAT score and bar exam result.”
According to Gary Rosin’s 2008 empirical article in the Journal of the Legal Profession
“LSAT scores of a law school’s entering classes were the most significant factor in determining its Bar passage rate.”
See also, Stephen P. Klein & Roger Bolus, Analysis of July 2004 Texas Bar Examination Results by Gender and
Racial/Ethnic Group 12 (Dec. 15, 2004) (LSAT scores strongly correlates with bar passage)
Most recently, Mark Albanese's article in the June 25 issue of the Bar Examiner, discussing the correlation of mean LSAT scores to MBE for law students entering from 2000-2001 and testing three years later, in which he reports a very strong correlation:
The correlation between mean July MBE scores and mean matriculant LSAT scores for those years was 0.66 (p<0.0192). The value represented by the triangle is for the July 2014 MBE. . . .[I]f the [anomalous] July 2014 point is removed, the correlation between mean July MBE scores and mean matriculant LSAT scores increases from 0.66 to 0.89 (p<.0002).
The relationship between the LSAT and bar exam scores is backed up by a mountain of empirical evidence over many decades. All evidence shows that both the old LSAT and the new LSAT are highly correlated with MBE score on the bar examination, and to approximately the same degree. Indeed, LSAT scores may correlate as well with the MBE as they do with law school GPA, which is what the LSAT is specifically designed and validated to predict!An analysis by the National Conference of Bar Examiners showed a .57 correlation of LSAT with MBE score, which is comparable to the correlations LSAC finds in its own "Correlation Studies" of the LSAT with law school GPA (average of .58). And this is not a new phenomenon or otherwise a product of the "new" LSAT scale. It has been true at least since 1979, when a study for the NCBE found the correlation between LSAT and MBE of .52 for ABA-accredited schools.
6. If raising LSAT scores will not lead to an increase in bar passage, as you suggest, then why did Whittier dramatically shrink its entering class this fall and significantly raise the LSAT score at the 25th and 50th percentile? Was this not in response to the extremely poor bar results obtained by Whittier students in recent test administrations, particularly by students in the extreme and very high risk categories as defined by LST?
7. And why, if raising LSAT scores will not lead to an increase in bar passage, is there nearly a straight line correlation between the selectivity of a law school with respect to LSAT scores, and bar passage rates, a correlation readily apparent to anyone who has ever reviewed bar examination results by law school?
Comment: Professor Lyke expressed an opinion that "LST overemphasizes first time bar passage" as opposed to eventual bar passage.
Here is the actual standard proposed by LST in its report: "Accredited schools should, within two years of graduation, be able to produce 85% bar passage among graduates who take the bar exam. Enhancing the standard in this way allows a graduate to take the bar four times." (After that point, passing the bar would not be credited to the school from which the student graduated.)
Professor Lyke states that "there is no evidence that law school graduates are not eventually passing the bar" and suggests that "there is likely evidence that eventual pass rates are well above 75% for low tiered law schools." The latter assertion may well be true, or at least it was before lower-tiered law schools started dramatically lowering their admission standards. But this eventual pass rate is for the class as a whole.
What if there was data showing that the 25% that never pass were overwhelmingly concentrated among those with very low LSAT scores? Would it still be fair to claim that those students have a reasonable chance of passing the bar? The only reason that there is "no evidence that law school graduates are not eventually passing the bar" is that law schools are doing everything they possibly can to conceal this uncomfortable truth. Consider the eventual bar pass statistics from the one school that was willing to share their eventual bar pass data by LSAT score with LST for use in the report, albeit anonymously. At the anonymous school, students in LST's very high risk band (those with an LSAT score of 145 or 146) had a first-time pass rate of 19% and an eventual pass rate of just 38%; those in the extreme risk group (144 LSAT or lower) had a 16% first-time pass rate and a 36% eventual pass rate. These numbers, of course, do not reflect the many students in these categories who never earned their J.D.s. Attrition rates for students with scores in these range is typically one/third or higher. So, if there were 50 very high risk and 50 extreme risk students that started at this law school together, perhaps 67 might earn their J.D.. Of these 67, 12 might pass the bar the first time, and another 13 might pass "eventually." Thus, as a group, this cohort would have a 25% chance of eventually becoming a lawyer.
8. Does a student with a predicted 25% chance of becoming a lawyer, in your opinion, meet the ABA Standard 501 definition of a student who "appears capable of satisfactorily completing its program of legal education and being admitted to the bar"?
9 a). In your opinion, Professor Lyke, is it fair and ethical to admit a student with a 25% chance of realizing their dream of becoming a lawyer? b.) If so, do you think the student deserves to know that their predicted eventual pass rate is not the 75% rate that the school is reporting, but is actually 25%? c.) Do you believe that students "at the margins of society" as you put it, fully understand the very high risks of failure, and the devastating consequences of repeatedly failing the bar?
10. Your Dean, Penelope Bryan, recently told the Los Angeles Times that “[t]he LSAT score has no predictive value for the success of Whittier Law School students on the bar exam.” a.) Do you agree with this statement? b.) As a respected senior faculty member at Whittier, are you willing to publicly advocate that your school release first-time and eventual bar pass rate by LSAT score for the last several years so that others, including Whittier students, may evaluate the veracity of this assertion?
11. You state that "just at the moment when it becomes easier for those at the margins to gain admission into the legal profession, the media and organizations like LST engage in a crusade to vilify law schools." In your opinion, has law school become easier? What about the bar exam? Has it become easier? Has it become easier to find decent entry level JD required jobs for recent graduates? So is admission into the legal profession really easier, or just admission into law school?
12. If Whittier could fill its 1L class with students with higher LSAT scores and better UGPAs, would you advocate admitting those students, or would you still advocate admitting the lower-performing students that Whittier has been admitting for the last two to three years?
13a.) Is LST really instigating a "dangerous national discourse" by raising the kinds of questions I have posed above? b.) Who, in your opinion, is endangered by this national discussion?
Professor Lyke, I look forward to your responses.
Disclaimer: The views expressed above are the opinions of the author and do not necessarily reflect the views of Law School Transparency or any members of the Law School Transparency National Advisory Council. However, in the interests of full disclosure of my affiliation, I am the Chair of Law School Transparency's National Advisory Council.