Seeking Clarity - Some Dangerous Questions for Professor Lyke

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.” 
http://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?article=1143&context=cwlr

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).

 

UPDATE: Quoting from a piece by Robert Anderson, a Professor at Pepperdine who happens to have a PhD in Political Science and has considerable expertise in statistics:

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.

Respectfully,

 

David Frakt

 

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.

Comments

[Scott Fruehwald]

Another question: What is your law school doing to help students from "the margins of society" succeed in law school, pass the bar, and succeed as lawyers? Does your law school mainly use traditional teaching methods, or does it use approaches tailored to help students from disadvantaged backgrounds? Does your law school use active learning approaches and formative assessment? Does your school emphasize a theoretical approach or a practical one? Does your school help students develop their professional identities?

[Anon]

Whittier has more than twice the percentage of Hispanic students and twice the percentage of Black students than can be found at UCLA. Their numbers v. UC Irvine are equally impressive.

[Jojo]

When discussing citizens at the margins of society or underrepresented ethnicities or underclasses, there is a thin green line that separates opportunity from exploitation. Is the payday lender/pawn shop an opportunity provider or a pillager or a bit of both? Florida Coastal and Charlotte are not charities (heck, unlike LST they aren't even 501c3 organizations). Long ago law many (at least 50) law schools entered the check cashing and loose cigarette selling marketplace.

I continue to be disappointed, but not surprised, that there are not more critical voices from the academy. Thank you Deb Merritt, Dave Frakt, Bill Henderson, Brian Tamanaha, Paul Campos, and the handful of vocal others who want to fix this, or, at the very least want a more truthful and transparent dialogue about legal education and the nuts and bolts and costs of the American legal profession in 2015.

For crying out loud, America's paper of record recently opined that it views your industrial practices as a "scam." I know that many of you take umbrage at that, but that's not the point. The point is that the b.s. has been so thick for so long at such a steep cost that a serious news organization that is otherwise sympathetic to causes and values that most of you find dear (justice, representation, freedom, expression, democracy, accountability) believes that many schools have become indistinguishable from extended warranty salesmen.

To the readers who are sick of the law school "puffery" please remember LST this holiday season, who surely puts the money to better use than Dear Alma Mater.

[Sy Ablelman]

Diversity in the legal profession is a good thing. However, it is worth repeating, from somebody who sees the inside of a courtroom nearly everyday, there is no work or jobs. The market is grossly oversaturated with attorneys of all stripes and experiences. It does them NO damn good if there are no jobs. Governments are not hiring, small firms are struggling. Being a solo and a newbie with no corresponding referral network, clients or connections means Unemployment. The numbers speak for themselves. In my jurisdiction, Illinois has 92K registered lawyers and 95,146 people employed by car dealerships. Nearly every adult in Illinois owns a car or two and will purchase several during their life times. All of those cars will need servicing from time to time. How often does an average adult require representation or the services of a lawyer and how often during her life time? Not much unless you are unlucky or very wealthy. the numbers are not sustainable.

[[M][@][c][K]]

Jojo:

I think you have summed up the point. Lyle and Anon are sheltering behind minorities, not helping them. Not so long ago pretty well every decent person, and many law professors, were decrying the "reverse-redlining" of minority neighbourhoods and the clear evidence that sub-prime lending targeted minorities, including inter alia, often forcing black and hispanic homeowners who would have qualified for regular mortgages to take sub-prime. Reverse red-lining encompassed all sorts of financial chicanery, income not stated (liar loans), balloon mortgages, etc. The key feature of this activity was moral hazard - the banks engaging in it were securitising the loans and getting the risk off their books. The ultimate consequences are also well reports, foreclosure, financial disaster, and many poor a minority neighbourhoods blighted by the foreclosures.

All along the banks involved, for example Well Fargo, justified their activities on the basis that they were bringing financial opportunity to minority neighbourhoods, the chance to become "home owners..." To that end they packed boiler-rooms with willing and well remunerated "spivs" who cold called carefully selected targets and enticed them to sign up to these loans (funny how many "sub-prime" law schools have been reported cold calling potential students too.)

So here is a basic question, how is Whittier different? How are you, Sheldon Lyle different from the "corporate flacks," the mouthpieces that defended reverse-redlining on behalf of the banks that engaged in it? How can you discuss in a class where at least some of the students hope to represent the minority communities they came from the sort of blatantly exploitative practices that target those communities, without sensing the irony? Could you answer a 2L or a 3L who asked about the parallels with a straight face? Even answer on this forum?

[Leo]

Here is another question for Sheldon: in all likelihood, many of the minority students Whittier is admitting are the first in their families to attend law school. What sort of pre-enrollment counseling is Whitttier giving them on the total cost of financing their education, job prospects, bar pass prospects, etc? I am still surprised when I encounter a prospective student or his/her parents who, because they have no lawyers in the family, are not truly aware of the full cost of attendance or dismal job prospects.

[Sy Ablelman]

They did worst than that. They gave "liar loans" and "stated income only" loans to people who had no chance of paying them back. Hair Dressers, part time Nannies and school bus drivers with 100K in income? Very similar as well to many ranked and unranked law schools. The risk on all of this is handily shifted a third party. Unwitting investors in the former and tax payers on the latter.

[Deborah Merritt]

Thank you for posing these excellent questions, David. I agree that this is an essential discussion for legal educators to have. The analogy that M@cK makes to subprime mortgages is chilling but apt. We as a society told ourselves, based on the experience of families with a steadily employed wage earner and middle-class assets, that mortgages and home ownership are always a positive. That rhetoric justified high-interest loans to families without steady employment or middle-class assets.

There probably were some families in the latter group who succeeded: they were able to pay the mortgage and realized their dream of home ownership. But at what cost? How many families lost both the dream and the few assets they had already acquired? How many lost more than they ever could have hoped to gain--while others profited substantially from their losses?

These are the same questions we need to ask within our profession, and the questions are more pointed because we claim to be a profession rather than just an industry. I don't think we can afford to say "every school should examine its own practices and most of us are okay." As a profession, we have a responsibility to maintain the integrity of all actors. That's why society grants us so many special privileges.

That, I think, is the point of the LST report: to urge responsibility, not only among schools that are admitting too many students destined to fail, but among the profession as a whole. There has always been a tension between providing access to the profession and setting students up to fail. Law schools managed that tension relatively well because they had so many applicants to choose from. But these times are different: with the decline in applications, some schools have become dramatically less selective. At the same time, tuition is high and jobs are more scarce. We really are in danger of doing what lenders did: applying one paradigm, which forecast reasonable success, to a very different group of students living under different circumstances. The differences here are not about race; they are about tuition, projected bar success, and employment.

[[M][@][c][K]]

Indeed DM:

One of the remarkable ironies in this situation if that educational lending is excluded from Federal Truth in Lending Act specifically excludes Federal Title IV loans (Stafford, Perkins and PLUS) - but interestingly not private education loans (which fell under the act from 2010 under regulation Z.) So when various persons suggest that private loans might take the place of Federal, one might want to consider that detail. Even then, s many lawyers will tell you TILA is a low bar.

By the way, that the rules do not apply to Federal loans does not in fact morally absolve law schools of their responsibilities, though it seems that many in the law school industry think so.

[[M][@][c][K]]

By the way, having perused Sheldon Lyke's teaching description at Whittier, i.v., Property and Wills & Trusts, it would seem to me that he should be teaching his students about redlining, reverse-redlining, etc. so this is a subject that he, if he is doing a thorough job, will have to discuss with a straight face.

[Sheldon Bernard Lyke]

Mr. Frakt,

First, and foremost, my Friday post was not an attempt to defend Whittier Law School's admission policies. Whittier Law School has done nothing wrong that needs defense. My post brought into serious question, whether the evidence that LST relies upon actually substantiates the claims that the organization makes. If you claims are untrue, and we make policy in response to those claims, the result will be catastrophic for those of lower socio-economic backgroound and racial and ethnic minorities. My post was an attempt to reframe a problematic national discussion on the future of legal education and providing opportunities to individuals who have traditionally faced discrimination.

You raise a number of important questions, and I am extremely excited to respond to these questions in a subsequent post next week. I have briefly examined the studies that you have referenced, and will be happy to discuss why, in my professional opinion, they might not support your contention that the LSAT is a valid predictor of bar passage.

In the meantime, would you mind addressing the two main points that I raised in my initial post? The first dealt with the correlation between LSAT and first-time bar passage, and the second dealt with the overemphasis of first time bar passage and the lack of emphasis of eventual bar passage rates.

(1) Do you continue to defend your assertion that the LSAC Study provides evidence of a strong correlation between the LSAT and first-time bar passage?

(2) Can you provide reliable (I use the term reliable in its statistical meaning, not pejoratively), systematic evidence that the LSAT is predictive of eventual bar passage? First, you point to an anonymous school. This is somewhat problematic. But what is more egregious is that you provide and rely on percentages to demonstrate correlation. If we were dealing with a data set of 10 people, perhaps a layman could eyeball a statistically significant correlation. But you are discussing data dealing with hundreds of students over multiple years. Providing percentages based on grouping risk categories that you have grouped and constructed is not systematic. A systematic quantitative analysis would take the anonymous LSAT scores, and at least run a test, perhaps a linear regression, to see if some statistically significant relationship exists.

Also, as I discuss the issue of bar passage and transparency, I will discuss what I believe is a socially constructed false crisis that has emerged as the result of LST's discussion of low tier law school admissions. I am a junior faculty member at Whittier Law, and not a part of the administration. My words are my own and a reflection of my analysis of the current pervasive framing of low tiered law school admissions.

I look forward to an engaging and civil conversation.

respectfully,

Sheldon Bernard Lyke
Assistant Professor, Whittier Law School
Assistant Professor of Sociology, Whittier College (by courtesy)

[David Frakt]

Professor Lyke,

I am so glad that you have agreed to respond to these questions and that you agree that these are important issues.

I understand that the LSAC study is dated. When I came up with the LSAT risk bands that LST subsequently chose to adopt for their report, I was relying in large part on my experience at Western State University College of Law, one of Whittier's competitors, from 2005-2010. I had access there to a comprehensive database which tracked Western State's applicants over several years and had data on all of their LSAT scores, UGPA, first year and cumulative Law school GPA, bar passage results and other data. I also drew on my experience from being a faculty member at Barry University School of Law in Orlando, where I was on the faculty from 2010-2. I also drew on my father's experience. My father was Dean at Loyola Law School in Los Angeles in the 1980s, Dean of Widener University Law School in the 90s, and served as principal consultant in the founding of Drexel University's Law School. He also served as a special assistant on bar passage at Western State for a couple of years to help the school through its bar passage crisis. I reviewed all of the available literature that I could find on the correlation between bar LSAT scores and bar passage. All of the research confirmed my own experience and validated the risk bands as I have framed them. The reporting by the University of Denver and the anonymous school in the LST report further validated these risk bands. Of course, in a state with a very easy or very difficult bar exam, the risk bands could perhaps be adjusted a point or two up or down. But the general principle would still be the same. And given that a graduate of an ABA law school can take the bar anywhere, and that all ABA schools are required to meet the same standards, having one general framework for assessing risk at schools nationwide seemed appropriate.

Although I am not a statistician or social scientist, I do understand that there is a difference between the predictive value of the LSAT for individuals as opposed to its predictive value for entire classes. And I understand that an LSAT score is not destiny. I acknowledge that the occasional student with a very low LSAT will defy the odds and pass the bar exam. But studies have found a near perfect correlation between a school's first time bar passage rate and the LSAT scores of the student body. That is compelling evidence of the predictive value of the LSAT.

To my knowledge, neither LSAC nor any individual law school has made the data available that would enable the kind of "systematic quantitative analysis" that you would like to see. So what we are left with is a mixture of basic common sense and experience, combined with the available data on school bar passage rates and school LSAT profiles. And all of those things overwhelmingly support the conclusion that students with very low LSAT scores are at very high risk of failing out of law school or failing the bar exam.

What LST has suggested is that law schools that have lowered their admission standards to levels never before seen, at the same time that bar pass rates are plummeting, should provide some empirical justification for their admissions decisions. My message to LST's critics is this: rather than constantly attacking LST's methods of data analysis as faulty, how about providing some actual data that contradicts LST's conclusions? LST has identified 72 schools with problematic admission practices. Not one of these schools has come forward with any data to justify their very dramatic declines in admissions standards. Of course, it is easy to say that Whittier (or any other other schools on the list) have nothing to defend. But when a school's bar pass rate drops to historic lows, and the same school then lowers their admission standards even further, then it is not unreasonable to ask if the school is acting reasonably and in good faith.

You may not think it is statistically significant if students with a 145 or 146 LSAT at a given law school have a first time bar pass rate of 18%, but students applying to that school with a 145 or 146 LSAT might find that information very helpful in deciding whether to attend that law school (or attend law school at all). And if one school is doing better than others at getting students with similar predictors (LSAT and UGPA) to pass the bar, then that information should be made available as well.

[Professor T. Roll]

Please see my forthcoming law review article entitled: "Payday Loans: providing much needed assistance and opportunity to peoples of lower socio-economic background and racial and ethnic minorities."

Full disclosure: My salary is paid by proceeds from said payday loan company, however I went to Yale law school, so you have to take what I say as fact because I scored high on the LSAT, not that the LSAT is predictive of intelligence.

[Leo]

Sheldon: I hope you will tell us why Whittier and its peer law schools did not admit minorities with law LST/GPA scores in years past when application number were more robust and applicant qualifications generally higher. Didn't lower qualified minority applicants the deserve with same opportunity? Please also let us know if Whittier will continue to admit these lower credentialed applicants should application number and applicant credential rebound.

I know you are not an administrator, but do tell us why you think Whittier did not admit applicants with lower credentials in the past whe they sought the opportunity to become lawyers.

[Eric Rasmusen]

Why not do away with the requirement that you need to go to law school before you take the bar exam? Then law schools would have much more pressure to show that they educate rather than credentialize. This would also remove one barrier to a poor person becoming a lawyer.

[[M][a][c][K]]

You post was not an attempt to defend Whittier?

It specifically criticized LST for an analysis of bad behavior by a class of law schools of which Whittier is a very prominent member.

Please, don't treat readers as stupid ...

For that patronizing contempt alone you should answer all the awkward questions about Whittier. But you won't.

But I think everyone here knows the concept of "negative inference."

[David Frakt]

MacK - Please show respect and courtesy to Professor Lyke. Unlike the vast majority of LST's critics, who won't even identify themselves, he has offered to respond to the questions we have posed. in fact, he said "I am extremely excited to respond to these questions in a subsequent post next week."

You or I may not agree with his positions, but let's give him a chance.

[[M][a][c][K]]

David,

I am perfectly willing to return respect with respect. However, to suggest that he is not defending Whittier does not treat those reading this thread with respect. He is, quite transparently making his arguments (and evasions) to the benefit of Whittier. To suggest he is not is, frankly, to treat us as fools, hardly an act of respect.

[Anon]

The fact that so few within law schools have worked outside of law schools is proof enough that the system is broken. Please, please, please change this.

[Derek Tokaz]

Out of a class of about 320 (full time only), Whittier has 114 students who are Hispanic or African American. Assuming arguendo an even distribution of employment outcomes across demographics, Whittier sends about 29 Hispanic or African American graduates directly into legal careers (their long term, full time, BPR rate). Almost as many (about 22) Hispanic or African Americans students will have failed out.

Let's compare to another southern California school, USC. It has 99 H+AA students out of a total size of 600. So, if we just chop the school in half we can make things about even, 50 out of 300. It's taking less than half as many H+AA students than Whittier. However, about 40 of these students will make it into the legal profession, and most likely none will fail out.

If Lyke truly does believe in a mission of helping to get black and brown people into the legal profession, perhaps he should speak to Whittier's very high attrition rate, and other less-diverse schools' ability to get their minority students into the legal profession. Or, is Lyke going to hold very closely to his exact wording of giving them the opportunity to "sit for the bar." There Whittier does provide more of an opportunity, but I suspect most bar sitters are more concerned with the opportunity to practice law than to take a test.