Here are details of a proposal to prohibit law schools from relying on the LSAT, because of the "disparate impact" the test has on African American and Mexican law school applicants. This proposal will be brought to the relevant ABA committee in June. I wouldn't normally give this a snowball's chance of passing, but who would have thought that the relevant ABA committee would pass a proposal that blatantly misconstrues Grutter and requires law schools to disobey the law, all in pursuit of "diversity"?

There are three noteworthy oddities in the memo (by Prof. Vernellia Randall) accompanying the proposal. The first is that it states that the "LSAC recently reported that virtually no law school is implementing Grutter." Given that all Grutter did was allow (but not require) law schools to use racial prefernces to achieve racial diversity if they have determined that racial diversity is a compelling educational interest, it's not clear what "implementing Grutter" could possibly mean. My best guess is that Prof. Randall (who is webmaster of the bizarre "Whitest Law Schools" website) seems to associate Grutter with the idea that every law school should have a "critical mass" of Black and Latino students. Grutter certainly allows law schools to pursue a "critical mass" under the circumstances noted above, but doesn't require them to, and indeed forbids it for reasons other than the "diversity as a compelling educational interest" rationale.

Another oddity is the claim that law schools are relying too heavily on the LSATs at the expense of minority students to raise their ranking in U.S. News, which uses schools' LSATs in its ranking. (She writes: "Perhaps the most pervasive reason is that many schools are undertaking a crude attempt to increase their ranking in the U.S. News and World Report at the expense of admission of minorities.") I've heard this claim often, and I'm sure that part of what is motivating the ABA's recent aggressive actions against law schools without "enough" minorities is the view of some professors that law schools who aren't taking their "fair share" of African-American students are shirking, and are benefitting in the US News rankings at more "progressive" (what is progressive about admitting and then failing out Black students?) schools' expense.

This view, however, neglects how U.S. News works. Average LSATs are irrelevant. Rather, the magazine has traditionally looked at median LSATs (last year they switched to 25 and 75 percentile scores). If you simply replace your lowest LSAT white students with even lower LSAT Black or Latino students this will have no effect on your median (or 25th or 75th percentile, unless a school already has 25% plus Blacks and Latinos) LSAT. Thus, schools that do not engage in vigorous affirmative action preference policies are not getting any meaningful competitive advantage from U.S. News.

The third oddity is the concern only with inputs (number of minority students being admitted to law schools) and not with outputs (how many actually graduate and pass the bar). As I've noted before, at many law schools more than half of African American matriculants never become attorneys. Shouldn't this problem be dealt with before requiring law schools to change their standards to favor even less-academically ready applicants?