The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

USC Lawprof Michael Simkovic Defends the LSAT


Simkovic, over at Leiter's Law School Reports, defends the LSAT from those who would eliminate it in an effort to enhance law school "diversity" (see the original for hyperlinks supporting various assertions):

If standardized test scores were removed from the rankings, or their weight reduced, law schools probably would spend less money on merit scholarships. But there is no guarantee that this money would be spent to help students from poor families. Indeed, affirmative action, as practiced by elite law schools, generally involves the admission of students from high income families who benefited from high quality K-12 and college educations, and who can afford to pay full tuition. Many students who are diverse because they are Hispanic are also white and no less wealthy than their non-Hispanic white peers.

Affirmative action, as practiced by many universities, does not screen for individual circumstances, family history of suffering or moral culpability for the suffering of others, or anything closely related to moral desert. These programs were initially ostensibly intended as remediation for enslavement of African Americans and forceful expropriation from Native Americans. But in practice, the benefits and costs to individuals turn only on people's willingness to check boxes on a self-report form or write a well-crafted "diversity statement", knowing that there is substantial upside and little risk to claiming to be 'diverse' in the particular way that will gain favor from admissions officers. Economists have found that many people change their self-reported racial and ethnic identities in response to incentives created by affirmative action. Numerous studies find that the rich exhibit more entitled and less honest behaviors than the general population, so this self-report diversity regime likely benefits the rich, entitled, and dishonest at the expense of both the truly disadvantaged and meritocratic efficiency and desert.

There is no mechanism to prevent diversity programs from benefiting the wealthy direct heirs to the fortunes of Spanish Conquistadors, slave traders, plantation owners, Inquisitors, and war criminals. Nor is there any mechanism to exempt from official discrimination those who families suffered from serfdom, slavery, genocide, or famine overseas or subsequent discrimination in the United States: serfs, concentration camp survivors, Jews, Mormons, Huguenots, Armenians, Poles, Ukrainians, and other Eastern Europeans, Copts, Irish, Boers, Kosovars, Bosnians, Italians, Middle Easterners, among others.

Rather than screen for moral desert based on sources of family wealth or documented persecution of direct progenitors, universities have allowed heirs to shady fortunes to donate their way into our classes and onto our boards. At the same time, we preach a self-righteous, self-serving ideology, and treat those who challenge it with hostility. This ideology maintains that moral responsibility for slavery turns not on inheritance of wealth misappropriated from slave labor, but rather on racial and ethnic identity, regardless of individual economic circumstances. Universities with large endowments benefit at the expense of innocent applicants who we scapegoat for the sins of our aristocratic donors.*

My bet is that if the rankings emphasized standardized test scores less, most law schools would shift even more toward serving students from wealthier backgrounds, and would also increase their net prices and the shadow price of expected donations from students' families. In other words, law schools—like the unreformed, less effective, and corrupt British Navy of old—would sell seats to the highest bidder.

Idiosyncratically defined diversity will likely continue to serve as a rationalization for profit-maximizing practices. Educators, public officials, and media organizations have been arguing for decades that diversity justifies departures from identity-neutral meritocratic standards. Nevertheless, most of the population still considers universities' race, ethnicity, and legacy admissions policies unethical. They prefer test scores, grades and community service.

FWIW, when I was at Yale Law, first semester was pass/fail, so there was no objective way for employers to determine how one was performing in law school. The result was a clear pattern: students with connections, who went to the most elite private colleges (Harvard, Yale, Princeton, Stanford and the like), or otherwise appeared attractive on rather subjective grounds to employers got summer jobs at big firms. My friends who went to excellent-but-not-quite-Harvard undergrads like Berkeley, Trinity, or SUNY Binghamton, and who didn't have parents who were prominent lawyers, politicians, or the like did not. So agree or disagree overall with Simkovic, it does strike me that the absence of the objective indicator of grades un-leveled the playing field, and I think the same would happen in law school admissions.