MISUSE OF THE LSAT: DISCRIMINATION AGAINST BLACKS AND OTHER MINORITIES IN LAW SCHOOL ADMISSIONS, THE

St. John's Law Review, Winter 2006 by Randall, Vernellia R

INTRODUCTION

Each year when the U.S. News & World Report publishes its college and university rankings, law professors and deans scramble to learn if their institution's rank has risen or fallen. Law schools are engaging in disturbing practices in efforts to "raise" their rank. If a Black or Mexican applicant is denied admission to law school, there is an excellent possibility that he or she may have been discriminated against based on race.

It is not the blatant "No Blacks Allowed" kind of discrimination. It is institutional racism, which is harder to eliminate because it is so insidious. Institutional racism occurs where an institution adopts a policy, practice, or procedure that, although it appears neutral, has a disproportionately negative impact on members of a racial or ethnic minority group. In the case of law schools, the institutional racism is the use of the Law School Admissions Test ("LSAT') as the sole or determining factor in admission, and specifically, the use of an LSAT cut-off score below which few, if any, candidates are admitted.

This misuse of the LSAT is devastating to all minorities, but is particularly devastating for Blacks and Latinos.1 Using the LSAT cuts in half the number of Black and Puerto Rican students who would be admitted based on their performance in college2 as reflected in their Undergraduate Grade Point Average ("UGPA"). Over the last ten years, the enrollment of Blacks and Mexican Americans in law schools has decreased.3 This decrease has come about despite an increase in the number of applications, a rise in average UGPA of these applicants, and an increase in their average LSAT score.4

Not only is this problem clear evidence of institutional racism, but it is also evidence of systemic racism since many institutions-including law schools, the American Bar Association ("ABA"), and U.S. News & World Report-could change their policies, practices, or procedures to use the LSAT ethically and responsibly.5

I. INSTITUTIONAL RACISM AND THE MISUSE OF THE LSAT

Racism is any conscious or unconscious action or attitude that subordinates an individual or group based on skin color or race. It can be enacted individually or institutionally. Most civil rights activities over the past thirty years have focused on individual racism.6 Institutions, however, are just as capable of being racist. Institutions can behave in ways that are overtly racist (i.e., specifically denying services to Blacks) or inherently racist (i.e., adopting policies that result in the exclusion of Blacks). This racism causes institutions to respond differently to Blacks and Whites. When Blacks are injured as a result, this behavior is racist in outcome, whether or not racist in intent.

When individuals disagree on elementary justice, their most insoluble conflict is between institutions. . . . The more severe the conflict, the more useful to understand the institutions that are doing most of the thinking. Exhortation will not help. Passing laws against discrimination will not help. . . . Only changing institutions can help. We should address them, not individuals, and address them continuously, not only in crises.7

Racism is both overt and covert, and takes three closely related forms: individual, institutional, and cultural or systemic. Individual racism consists of overt human actions that cause death, injury, and the destruction of property or the denial of opportunity. Institutional racism is more subtle, but no less destructive. Institutional racism involves policies, procedures, or patterns of behavior that have a disproportionately negative effect on racial minorities' access to and quality of goods, services, and opportunities; the intent is irrelevant.8

Stokely Carmichael and Charles Hamilton coined the term institutional racism in 1967.9 The MacPherson Report, a British government report, defines it as:

[T]he collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people.10

Over the last thirty-eight years, institutional racism has assumed new meanings. The definition used in this paper is consistent with Professor Haney Lopez's "new institutionalism," which consists of the "background scripts and paths that mark social and organizational life" and that "impose harmful effects on minority communities, irrespective of the actions or attitudes of individual decision makers."11 Cultural or systemic racism is the basis of individual and institutional racism, as it is the underlying value system that supports and allows discrimination based on perceptions of superiority and inferiority.

To understand institutional racism, it is important to understand the interaction between discrimination and prejudice. Prejudice is an attitude that is based on limited information or stereotypes. While prejudice is usually negative, it can also be positive. Both positive and negative prejudices are damaging because they deny the individuality of the person. No one is completely free of prejudices although they may not have any prejudice against a particular group. Discrimination is behavior, intentional or not, which treats a person or a group of people disrespectfully on the basis of their racial origins. In the context of institutional discrimination, power is a necessary element, for it depends on the ability to withhold social benefits, facilities, services, or opportunities from someone who should be entitled to them. Intent is irrelevant; the focus is on the result of the behavior.