LSAT, U.S. NEWS & WORLD REPORT, AND MINORITY ADMISSIONS: SPECIAL CHALLENGES AND SPECIAL OPPORTUNITIES FOR LAW SCHOOL DEANS, THE

St. John's Law Review, Winter 2006 by Rothstein, Laura

Knowledge is essential to understanding and understanding should precede judging.

-Justice Louis D. Brandeis

I. BACKGROUND AND CONTEXT

A. General Overview

The advent of the U.S. News & World Report ranking of law schools1 has brought a great deal of "judging" to the world of legal education. Prospective students, employers, and many others have come to "judge" law schools based on this ranking number. Unfortunately, this judging is not based on an understanding of what the ranking information may or may not mean, and the ranking number itself is certainly not "knowledge" about a law school's quality. The U.S. News purported measure of quality leaves out the important value of diversity, as well as other important values.2

The underrepresentation of African Americans in legal education and the legal profession has been recognized as a significant concern. Efforts from many sectors are underway to address that underrepresentation. One of the major challenges to increasing diversity, however, is the tension between improving or monitoring national law school rankings as a goal and increasing diversity as a goal. These challenges are especially difficult for law school deans. This is explored below in Part III.

B. U.S. News & World Report-Weight of LSAT Scores

When the rankings issue of the U.S. News is published, it includes a description of the methodology for determining the rankings.3 While it remains generally consistent from year to year, it does change occasionally, and law schools do not know what formula will be used from year to year.

It is apparent from reviewing the description of the methodology that there is ample room to criticize the validity and value of these rankings, and this has been done. The purpose of this Article, however, is to focus on the emphasis on the Law School Admission Test ("LSAT") score and its significant weight in the rankings. As noted, the median LSAT score accounts for 12.5% of a school's overall ranking.4 It is also one of the few factors over which a law school has some degree of direct control, the other being grade point average ("GPA"). During 2005, there was substantial debate when, without notice to law schools, U.S. News decided to change its method of determining the median.5

In spite of a significant level of concern voiced by legal education leaders to U.S. News, there has been little substantial change in the general rankings system. Legal educators have raised concerns about the impact on minority admissions and the fact that diversity is not measured in the rankings. U.S. News editors have, in the view of many, given inadequate responses and have done little to change their methods.

II. LEGAL FRAMEWORK

Within legal education, there has been a longstanding history of a commitment to ensuring diversity. One means of ensuring diversity was implementation of affirmative action practices and policies at most law schools in the 1970s. These practices took many forms, including outreach in recruiting, minority scholarships, special minority programs, and consideration of race as a factor in the admissions process. The 1978 Supreme Court decision in University of California Regents v. Bakke6 addressed the issue and recognized the use of race as a factor in admissions decisions. After that, affirmative action practices in higher education went unchallenged by litigation for the most part,7 although there were certainly many who criticized the use of race in the admissions process through other avenues.

Beginning in the mid-1990s, however, challenges in the form of litigation, political efforts to change state and/or institutional policy, and discussions in the media increased. The expectation that it was legally permissible to use race as a factor in making admissions decisions was met with a major challenge when the affirmative action practices in admissions decisions at the University of Texas School of Law were struck down as unconstitutional in Hopwood v. Texas8 in 1996. It was not until 2003 that the Supreme Court updated its Bakke decision9 and upheld the use of race as a factor so long as it is narrowly tailored. The Court did so in Grutter v. Bollinger.10

Because others have provided detailed discussions and analysis of these decisions, this Article will not do so. It is important to establish, however, that while the Supreme Court upheld the use of race as a factor in admissions decisions, it left unresolved the use of race in making scholarship decisions and in other admissions practices. Justice O'Connor "suggested" that the practice of considering race in admissions decisions may need to be "sunsetted" in twenty-five years.11 The point here is that law schools must exercise caution in their affirmative action practices, and they must be aware that there are advocates who are most willing to challenge any practice that may seem to run outside what was validated in Grutter.

III. THE SPECIAL SITUATION OF LAW SCHOOL DEANS

A. Diverse Constituencies

The special challenge of being a dean is what makes the job so interesting and also what makes it so difficult. This is why deans so enjoy the American Bar Association ("ABA") Mid-Year Meeting, where they can share and commiserate with others who best understand and sympathize with the day-to-day challenges of being a law school dean.