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

[Anon]

Derek,

Why does it strike you as problematic that at the left side of the distribution the dropout rate is higher? That is without doubt true of every profession and academic subject. Each year Whittier by your own calculus adds more than two dozen minority lawyers to California - and they are sorely needed. Your only solution apparently is to shutdown the Whittier's of the world or starve them of resources. Where do those two dozen students go then? You would apparently be willing to force them to live with BA's only for the rest of their careers.

[anon]

Anon

Your comment is racist and disgusting.

[anon]

David,

If you are considering academic attrition, you should also be considering transfer attrition. Many unranked schools lose as many or more students through transfer than through academic attrition. Presumably only the best students are transferring, and these students are probably passing the bar at a much higher rate than the average student with the same LSAT. These students are also probably seeing better employment outcomes. Many students go to unranked schools with every intention of transferring to a better school. If you are going to use bar pass to judge admissions standards, students who transfer need to be considered as well.

I don't claim that this would make a huge difference to LST's major conclusions, but I think it seriously undermines your claim above that students from anonymous school with a given LSAT had only a 25% chance of passing the bar. Were there no transfers from this anonymous school to other schools?

I also want to echo the comments I have seen on this blog saying that the higher ranked schools should get more heat from LST. The current system is unfairly advantaged against the lower tiered schools. The first tier schools don't have to report the low LSAT numbers of students who transferred in, but they get to report the high bar pass rate of these students. The lower tiered school has to report the low LSAT score but is not allowed to include the high bar pass number. This system is far from transparent.

[twbb]

While I agree that schools accepting transfer students should be required to report LSAT scores of transferees, I don't see how this is unfair to lower-tiered schools; if they want a high passage rate, they should raise their admission standards. They are not entitled to a certain level of enrollment and they do not deserve sympathy for failing to achieve it.

[dupednontraditional]

Yep, because per Anon's comment at 10:13, there is literally NOTHING ELSE for the BA-holding students to pursue to better themselves and contribute to society other than the vehicle of a law degree. Accounting, business, science, mathematics, sociology, history, medicine, the arts...all off the table, and all out of reach.

[anon]

Twbb,

Different anon here. I don't think the point is that higher ranked schools' not reporting LSAT scores of transfers-in is unfair to lower ranked schools. I think the point is that higher ranked schools' not reporting LSAT scores of transfers-in is non-transparent and therefore misleading to (1) prospective students considering those schools and (2) legal employers and others who are evaluating said schools based on the actually reported, but incomplete, class profile/ranking.

[anon]

Re-reading the thread, I should modify my response: the earlier anon's point may be that it is unfair to lower ranked schools. My point is that it is non-transparent and misleading to prospective students and employers.

[anon]

Anon 10:13 here. My main point is that Frakt needs to take transfers into account. His claim that students admitted to the anonymous school with an LSAT score of 144 or lower have a 25% chance of passing the bar is therefore false. It is just plain wrong to take academic attrition into account without also considering transfer attrition. He is painting an unfairly gloomy picture of the prospects for admits with a low LSAT at a tier 4 school. The best case scenario for these students is probably the one he totally ignores: transferring to a tier 1 school and passing the bar. Many, many tier 4 students do this. Failing to take this obvious variable into account makes me question his statistical claims elsewhere.

The unfairness and lack of transparency I was referring to is in how the system is skewed. Tier 4 schools report the low LSAT scores of admits, but can't report their bar pass when they graduate elsewhere. Tier 1 schools don't have to report the low LSAT of the students who transfer in, but they do get to report the high bar pass percentage of these high performing students. Its a lose/lose for the tier 4 schools and a win/win for the tier 1 schools. I am not trying to say that the system necessarily needs to change, as I think having tier 1 schools admit low LSAT students who have proven themselves is a good thing. However, I do think there is a lack of transparency, and schools like Florida State and Georgetown are taking advantage of this. However, I never hear any criticism from LST, as they only talk about how problematic it is to admit students with a low LSAT. In truth, these schools are essentially using the tier 4 schools as an admissions tool for finding the students with low LSATs who can succeed and pass the bar.

[Anon]

dupednontraditional: there are lots of things worth doing in life other than being a lawyer or pursuing a JD. But the critics of law school don't make that argument generally speaking. I take it their complaint is that law school is just too expensive. And therefore only those students who can be demonstrated to earn more than they spend pursuing a degree should be allowed to go to law school.

The problem is that for all sorts of reasons limiting access to law school by closing down schools like Whittier will have a disparate impact on minorities - as the diversity figures for Whittier v. UCLA/UCI indicate.

In other words one might say that for all sorts of complex historical and other reasons minorities have to try twice as hard to succeed in law. But at least now the California system (which allows non-ABA and for profit law schools and on line law study) increases the chances that at least some additional minority students can become lawyers.

It might make sense to have a conversation about how to make it easier for minorities to succeed in law school. In fact one elite school - Berkeley - has been working hard to find other ways to measure the impact of the LSAT and consider alternatives (see their Shultz/Zedeck study).

But by adopting the broad brush approach that LST takes - relying on the dated single factor of the LSAT - they end up with a solution that will hurt black and hispanic applicants.

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

I have to say that the latest "dog whistle" defence of the bottom feeding law schools is that LST and other critics are racist (i.e., "hit me now with the minorities in my arms.") It's an interesting tactic, which was also engaged in by the pay-day loan business, reverse-redlining banks and others who transparently set out to exploit minorities.

The transfer issue is an effort at smoke and mirrors, combined with selective reading. LST has published information that suggests that students with very low LSAT scores have a high risk of failing the bar. Various Anon's argue, "but hey, those evil higher ranked law schools are stealing our better students," paternalistically ignoring the reality that a student is more likely to secure a career graduating from say Georgetown than American or Catholic (the two schools it and GW are accused of poaching from), and he/she owes the law school nothing (and by the way, is more likely to become a lawyers out of the transfer school (I thought that was the point), and can make his/her own choices. This also in the preferred example ignores the fact that LST does not include Catholic (bottom 25% LSAT 151) or American (bottom 25% LSAT 152) in that group of law schools admitting large number of students at high risk of failing the bar exam. The argument also ignores the obvious, even if students from the very lowest ranked law schools were transferring, they would still be those near the top of their class, who are unlikely to be be the high risk and very high risk admits that LST identified.

I notice that after Prof. Merritt asked the question, not of the usual Anon's answered, at what point is it helping minorities and at what point is it exploitation, of the minority student as little more than a federal loan conduit? rTough question, I can see why the Anon's cower from it.

One of the things you run into in practicing law is grifters. When you are a junior lawyer, you spot some of the grifters easily - but as you practice longer you slowly discover that many, if not most, do not present themselves in ways that match the stereotype - many are soft-spoken, have Yale and Harvard degrees, express high minded thoughts, dress tastefully - but they are still grifters.

[Anon]

no doubt the LST folks are well intentioned folk, not a racist bone in their bodies. but the numbers don't lie. Whittier takes in more black and hispanic students. UCLA is now prohibited from using affirmative action and soon that may spread across the country. so what do we do?

[David Frakt]

Hardly anyone would defend admitting white students with extremely low predictors of success, but for some reason people are lining up to defend the practice of admitting minority students with extremely low predictors of success. Notwithstanding restrictions on affirmative action at some public schools, any minority with undergraduate grades and LSAT scores that suggest even a modest aptitude for the study of law can get into a very respectable law school. In Southern California alone, USC, Loyola, Pepperdine, Chapman and USD are all very good law schools with aggressive affirmative action in their admissions to promote diversity. As a result, there are few minority students with reasonable predictors of success interested in attending Whittier or Thomas Jefferson or LaVerne, schools with low prestige, and poor bar passage rates and job placement statistics. In order for Whittier to have such a large percentage of minority students, they must therefore admit many minority applicants whose LSAT and undergraduate GPA predict failure as the most likely outcome.

Consider this statistic from the NCBE: A student with a 140 LSAT scores an average of 132 on the MBE. A student with a 150 LSAT averages 143 on the MBE. Source: http://www.ncbex.org/assets/media_files/Bar-Examiner/articles/2011/800411Testing.pdf The cut score in California on the MBE is 144. Whittier's 75/50/25 LSAT in 2014 was 150/146/143. This means that 75% or more are potentially at risk of failing the bar, unless they outperform their predictors. This is not an exaggeration. Whittier's entering class of 2011, the group that took the bar in summer of 2014, had LSATs of 154/152/149. That group achieved a first time pass rate of 43% on the July 2014, California Bar Exam. Even accounting for some transfer attrition from the top of the class, that is very low, especially when considering that Whittier had attrition for the entering class of 2011 of 23.4 (56 academic and 8 "other") .

Although the great Examsoft debacle of July 2014 may have slightly depressed Whittier's first-time pass rate, I predict that when the summer 2015 results are released (probably next week) that Whittier will have a similar or worse performance because the entering class of 2012 was substantially weaker than the entering class of 2011. The results for minority students will almost certainly be even worse than the results for the class overall. In July 2014, the first time pass rate for white students from California ABA-approved schools was 75.4%. For black students from CA ABA schools it was 53% and for Hispanic (the term used by the California bar) students 59.5%. This kind of disparity in performance by race has been consistent over the years. In July 2013, white students passed at 80%, black students 58%, Hispanic 70% (again, first time takers from CA ABA law schools). Summer 2012: W- 81,B- 59,H-70. Summer 2011. 81-W, 58-B, 65-H.

If Whittier's statistics were proportionally similar to the rest of the state, that means to earn their 43% overall first time rate, they probably had a white pass rate in the upper 40s to low 50s, a black pass rate in the low to mid 30s and a Hispanic pass rate in the mid to upper 30s. These numbers will continue to decline for at least the next 3 years (15, 16 and 17) as ever weaker classes move through Whittier and the other schools that have similarly lowered their admissions standards.

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

Nice to clarify that ... Since it's not what was dog whistled.

First, private law schools can continue to treat diversity as an admission criteria.

Second, solving the current Supreme Court's views on affirmative action (which I disagree with) is a different issue from admitting students that have very little chance of actually becoming a successful minority lawyer - indeed recent admission profiles suggest that many who would be successful lawyers, including minorities, are increasingly off by the desperate straits that so many young lawyers find themselves in. That is caused both by debt and too many law graduates, an issue the legal professoriate is desperate to pretend does not exist.

Frankly, the professoriate has been so self serving (with a few exceptions) that their arguments on this front lack credibility.

[twbb]

"so what do we do?"

If Whittier wants to provide disadvantaged students with opportunity, why is the tuition so high? Doesn't that conflict with that goal?

[LSTfan]

Whittier is just like many of the other schools on LST's list of serious risk schools. They have not necessarily made a conscious decision to exploit underqualified minority students. Rather, they have tried to stay open and hold on to jobs for faculty, staff and administration by doing whatever they have to do to get enough tuition paying (federal loan borrowing) students in the door to pay everyone's salaries. This has meant lowering their standards ever further, while keeping a close eye on what competitor schools are doing to make sure that their drop in standards is roughly commensurate with their peer schools and at the same time turning a blind eye to the consequences on the people whose lives they are ruining. The "we are serving underserved minority groups" line of argument is simply an after the fact attempt to justify wholly indefensible admission practices. It is only the threat of loss of accreditation that can get these schools to act responsibly. Arguments about ethics and professionalism and other such abstract principles are insufficient to persuade schools struggling for their very survival. Whittier, like many lower tier schools, had a choice - maintain reasonable admission standards and make dramatic cuts to faculty and staff (or dramatic pay cuts to all) or lower standards significantly and make more modest cuts to the budget and freeze or reduce hiring. With few exceptions, law schools have chosen the former over the latter.

[LSTfan]

I meant the latter over the former.

[when]

I've been looking forward to Prof Lyke's promised followup post all week. Maybe we'll get it today.