Guest Post — Jay Rosner — Response to Kevin Washburn

This is the third in a series of posts:

(1) Guest Post — Jay Rosner: The LSAT vs. the GRE: May They Both Lose
(2) Guest Post — Kevin Washburn: The LSAT’s Key Role in Native Legal Education

I’m honored that Prof. Kevin Washburn took the time to respond to a Turtle Talk post of mine.   I had deeply criticized both the LSAT and GRE, but I expressed the hope that the movement to accept both in law school admissions will subject both to the kind of scrutiny, particularly on their disparate impacts, that will be more difficult for them both to withstand.

Prof. Washburn’s post, entitled “The LSAT’s Key Role in Native Legal Education,” emphasized that “… if the LSAT lost its leading role in legal education … it could be bad.  Very bad.”  He then tells the uplifting story of PLSI, which has an admirable record helping 25-35 Native students each year, for decades, succeed in law school by providing them with excellent summer instruction, stipends and role models, among other supports.  He clearly is a proud alumnus of that program.

Prof. Washburn’s primary defense of the LSAT is that its developer, LSAC, has played a major role in funding PLSI over the years.  LSAC is to be commended for that; however, I submit that for those of us advocating fair representation in the legal profession, LSAC’s only positive attribute is its support for PLSI.

My own research details the disparities built into tests like the LSAT.  (See  I would like to expound upon this for Turtle Talk, but LSAC will never make the item-level LSAT data available that would allow anyone critical of the LSAT to analyze it and discuss it publicly.  The essential point is this: virtually every question chosen for the LSAT must show, in pretesting, that Native and other underrepresented minority test takers do less well on it than whites.  Otherwise, the question will not get chosen to appear on the LSAT.  The gig is rigged.

Sadly, Prof. Washburn defends the LSAT’s developers by saying that the test’s disparities reflect those in our society.  That is a defense that test defenders always use.  Each version of the LSAT has those disparities carefully designed into it.  We already have a plethora of relevant parallel admissions disparities in undergraduate GPA, selectivity of undergraduate school attended, income, wealth, parental education, access to western educational capital, etc.  Why, then, do we need to add on top of those yet another metric, a test score, that also mirrors the discrimination in our society?  A talented admissions officer can make a good decision without a test score, just like undergraduate admissions officers at Wake Forest, Wesleyan and others have been doing for years.

Additionally, Prof. Washburn states, “Psychometricians who design the LSAT work very hard to identify raw analytical ability and to minimize the advantages that ‘wealth’ might contribute to test scores.”  First, scores always correlate highly with wealth, however measured, so psychometricians are doing a very poor job at that; moreover, psychometricians’ primary job is to create tests that generate bell curves, before they give any consideration whatsoever to “raw analytic ability,” whatever that is.

And, we know where most of the Native test takers will fall on the bell curve before they take the test.

Like Prof. Washburn, I’m involved in several Native-run pipeline-type programs.  I don’t speak for those programs here – I speak only for myself.  I try to help Native students maximize their admission test scores, which is some of the most challenging, rewarding and frustrating work I’ve ever done.  For over a decade, I’ve been successful every year with a bunch of Native students, but there are many more whom I haven’t been able to assist adequately, primarily because of a paucity of resources available for this work.

Finally, if the ability to subsidize programs like PLSI is really the primary benefit that Native students get from LSAC, that’s an argument for some enterprising Native legal educators to immediately meet with ETS, the developer of the GRE.  ETS has annual revenues in excess of a billion dollars, and appears to be more than 25 times larger than LSAC, making it 25 times more capable of funding a great program like PLSI.





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