by Allen K. Easley
Last fall I announced my retirement as dean at Western State College of Law, effective at the end of the 2022-23 academic year, my ninth year as dean at Western State. Because of my impending retirement, I was invited to write a final Dean’s Corner column reflecting on legal education from my perspective as a legal educator for forty-four years, including three deanships.
For starters, let me say that, even though I decided to retire this year, I am excited for the future of Western State. Our enrollment is growing in size and quality. We are expanding our campus, adding classrooms, offices, and study space. We are regularly recognized as one of the most diverse law schools in the nation. But it will be up to the new dean to lead Western State into what I believe will be a bright future.
So, let me instead focus on three hot topics that I and others believe are very much intertwined, though they pose as discrete subjects. First, the Council of the Section of Legal Education and Admissions to the Bar (Council) seems to be on the verge of eliminating the requirement that law schools only admit students who have taken a valid and reliable admissions test (generally the LSAT). Second, between November 2022 and February 2023, forty-two law schools decided to boycott the U.S. News rankings, a ranking system that has been in existence since 1987 and has had profound influences on legal education (many would say to the grave detriment of legal education). Third, as I write this in April, we await word from the U.S. Supreme Court on the fate of affirmative action in higher education, what some anticipate will be the other shoe dropping after the overturning of Roe v. Wade last term in Dobbs v. Jackson Women’s Health Organization.
So why are these three topics related? Well, let’s start with the LSAT. I say the Council seems on the verge of eliminating the requirement of an admissions test even though the parent organization, the national ABA (big ABA), through its House of Delegates, has rejected this proposal, because the Council is the official accreditor of law schools, so it has the final say. And the Council seems bound and determined to push this change through, in spite of objections from the big ABA, with a proposed effective date of fall 2026.
What is interesting is that both the proponents and opponents of eliminating the requirement of an admissions test believe that the opposing view will hurt diversity. The proponents of eliminating the requirement believe that the LSAT hurts diversity because of the score gap for students of color. Those on the other side who advocate keeping the requirement argue that if schools are permitted to go test-optional, there is a risk that the other factors that will become more important in admissions decisions will mask societal prejudice to the detriment of diversity objectives. Schools trying to judge the strength of an applicant’s credentials without the benefit of an LSAT score will likely turn to things like the quality and reputation of undergraduate schools, undergraduate grades and majors, reference letters from professors, summer internship placements, and other interesting life experiences. A student who is first-generation college, who perhaps started slowly and had to take time off to work and earn money, who was distracted by family financial pressures, who started in a community college before transferring to a four-year-degree program, might be disadvantaged over someone from a more privileged background who had the time, resources, and connections to do a variety of things to make their law school applications shine.
Of course, eliminating the requirement of an admissions test doesn’t mean law schools are barred from using an admissions test. It merely gives law schools the choice to go test optional. But there is a fear that once some law schools go test optional, there will be pressure on competitor schools to do the same. And here is where the Council’s decision to not require an admissions test bleeds over into concerns about the U.S. News rankings. Before the 2023 boycott, the U.S. News rankings put significantly greater weight on entering credentials (LSAT scores and undergraduate grade point average) than it did on output measures like bar passage rates or employment rates, data points which one might think are of equal, if not greater, importance. I won’t take time here to tally up all the complaints about the U.S. News rankings methodology that many feel incentivized law schools to make decisions that were bad for students but good for rankings. Nor will I speculate on the impact of changes U.S. News has said it would make to its ranking formula in response to the recent boycott. Entering credentials will have a reduced weighting, but will still matter. Just focusing on matriculant LSAT scores, the pressure to improve LSAT credentials in an effort to improve rankings remains and often cuts against a law school’s mission. Over the years, some schools succumbed to that pressure. Other schools stuck to their mission. But imagine a world where the LSAT is not mandated by the Council. If a law school went test optional, it is a fair assumption that the applicants most likely to choose not to submit their test scores would be those with lower scores. Going test-optional presumably would remove those lower scores from a school’s data, and possibly cause a rise in that school’s entering LSAT credentials. So law schools seeking to improve their rankings would have an incentive to go test-optional. And competitor schools would feel pressure to do the same. But will this help or hinder diversity? Reasonable people disagree, but studies on the undergraduate level have suggested that going test-optional does not improve diversity.
An interesting issue is why it took thirty-six years for law schools to finally decide to boycott the rankings system that had been widely criticized since its inception. This is where the third topic enters the picture: the Supreme Court’s anticipated ruling on affirmative action in higher education. The potential elimination by the Council of the requirement that law schools use an admissions test, along with the attack on the U.S. News rankings system, operate against the backdrop of the U.S. Supreme Court gearing up to decide a case that could bring an end to affirmative action in higher education, ending explicit reliance on race as a factor in admissions decisions. Of course, in California, Proposition 209 already banned the consideration of race in admissions at public universities starting in 1996. This has spawned creative ways to try to achieve diversity without using race as a factor, including looking at socioeconomic factors, like parents’ education, family income, and parents’ occupations, to try to achieve socioeconomic diversity. Because students of color come from racial and ethnic groups that are disproportionately disadvantaged socioeconomically, this can perhaps improve diversity in a race-neutral way that might be permitted by the Supreme Court, though the results of these efforts in California are mixed.
If other law schools outside the UC system take this approach to race-neutral diversity, it could have a negative impact on LSAT credentials, as the socioeconomic disadvantages experienced by some students are likely to also impact their test scores. The Wall Street Journal has speculated that the anticipation of the Court striking down race-based affirmative action might be one reason why Yale began the U.S. News boycott—fear that efforts to achieve diversity without using race as a factor would cause it to drop in the rankings. But the rankings boycott coupled with allowing law schools to go test-optional could help diminish the significance of a possible rankings drop by Yale. Only time will tell how the tension between requiring or not requiring an admissions test, law school rankings, and affirmative action eventually will be resolved. But it seems clear to me that these three topics arising at the same time is no accident.
There are also risks in admitting students without LSAT scores, including the impact it might have on bar pass rates, particularly in California where passing scores are consistently lower than in other states. While grades and class rank in law school are generally the best predictor of success on the bar exam, for individuals who are just applying to law school and don’t yet have grades in law school, the best predictor of success on the bar exam by far is the LSAT. The LSAT is designed to predict success in the first year of law school. But grades in the first year correlate with GPAs at the end of law school. And GPAs at the end of law school correlate with bar passage. So, law schools that decide to go test optional for whatever reason need to figure out a way to ascertain whether their students have a reasonable chance of success in law school and on the bar exam. Because, while the Council may be about to eliminate the requirement of an admissions test, it is most certainly not going to eliminate the requirement that law schools only admit applicants who appear capable of satisfactorily completing the program and being admitted to the bar. Of course, Yale and Harvard don’t have much to worry about regarding bar pass rates. But for law schools further down the ladder who choose to go test optional, the ability to assess likelihood of success in law school and on the bar exam will be trickier, and the impact on diversity will be unclear.
This whole conversation becomes more complicated as the bar exam, nationally and in California, heads toward significant change. The National Conference of Bar Examiners (NCBE) is the developer of the Multistate Bar Exam (MBE), an all-day multiple choice exam currently used in every state (including the District of Columbia) except Louisiana. The NCBE has also developed the Uniform Bar Exam (UBE) currently used in thirty-nine states and the District of Columbia, but not in California. The UBE is a two-day bar exam, one day being the MBE, and the other day including multi-state essay and performance test questions. California currently administers the MBE on one of the two days of the California bar exam, and California’s own essay and performance test questions on the other day.
But the NCBE is on a path towards dramatic changes in the bar exam that will replace the MBE and UBE with something they are calling NextGen—the next generation bar exam. The idea behind NextGen is to create a licensing exam that more closely measures the knowledge and skills needed in the practice of law. The NextGen exam will test eight foundational subjects: Civil Procedure, Contracts, Evidence, Torts, Business Associations, Constitutional Law, Criminal Law, and Real Property. It will also test seven foundational skills: legal research, legal writing, issue spotting and analysis, investigation and evaluation, client counseling and advising, negotiation and dispute resolution, and client relationship and management. The NCBE anticipates rolling out the first administration of NextGen in 2026 after several years of testing prototype exams. The NextGen exam will completely replace the MBE and the UBE.
By 2026, California will have to replace the MBE with a similar multiple-choice exam of its own creation, join the states planning to adopt the NextGen exam, or create its own version of a new bar exam. The California Supreme Court appointed a Blue Ribbon Commission on the Future of the Bar Exam that recently published its report and recommendations. Without digging too deeply into the details, the Commission has recommended the development of a California-specific exam that focuses on a short list of foundational subjects and skills remarkably similar to the NextGen list.
I think few would quarrel with the idea that the bar exam should attempt to more closely measure the knowledge and skills needed to practice law. Whether the NextGen exam or California’s new exam achieves that goal remains to be seen. But these changes to the bar exam will certainly require law schools to think about how to best prepare graduates to take these new exams. If everything works as planned, the end result will be law schools better preparing graduates for the practice of law and bar exams better measuring the adequacy of that preparation.
I cannot talk about the future of legal education without mentioning artificial intelligence (AI) and the various iterations of ChatGPT, which can mimic human conversation, compose music, write essay answers, write or debug computer code, and various other fascinating things. Lawyers are already discussing the feasibility of using ChatGPT to draft contracts or other legal documents including litigation documents. I cannot begin to convey how scary this sounds to me. As an educator, an obvious fear is that students will figure out how to produce passing written work that is undetectably not their own. After all, the whole point of ChatGPT is not to find other previously written works that can be presented as the student’s own work, but rather to write an original piece based on vast amounts of information available to ChatGPT. So how are we to detect that a piece of original work submitted by the student is not the student’s own work? Thankfully, I think, this is a rapidly evolving field, so already there are ChatGPT plagiarism tools being developed that claim to be able to detect with a high degree of accuracy whether an essay was written by AI. This feels like a race to the finish line where the competing AI Bots keep pushing the finish line back based on their current skills and learning.
Under the headline “Maybe This Will Finally Kill The Bar Exam,” Above the Law recently reported that the latest version of ChatGPT, GPT-4.0, was able to pass all sections of the UBE.1 This was a big step (forwards or backwards—you choose) from GPT-3.5, which apparently failed the bar exam. So, first time pass rate: 0%. Ultimate pass rate: 100%. Thankfully, I have already passed the bar exam.
I am not sure what all of this means for the future of legal education. For those of us who care deeply about continuing the work of diversifying the legal profession, I fear that is going to be a lot harder. And in law schools in states that seem particularly hostile to the idea of diversity, equity, and inclusion (DEI), I fear that even the content of curriculum, thought to be the responsibility of faculties of law, will be screened by state officials trying to eradicate anything that they think looks like the promotion of DEI.
Meanwhile, the issues that have sparked concerns at law schools like Stanford, when students who opposed the views of an invited speaker on campus attempted to silence the speaker through their protests, have also been experienced at other universities. We are unquestionably a nation divided. And it is the responsibility of our institutions of higher education, and most particularly our law schools, to find the delicate balance required to assure that all individuals are welcome, regardless of race, ethnicity, age, religion, gender or gender identity, sexual orientation, or political persuasion. I cannot say it better than Dean Martinez did in her letter to the Stanford Law community. It is worth reading.2
While continuing the commitment to DEI might be the biggest challenge, I also think the future provides significant opportunities for positive change. The efforts nationally and in California to re-envision the bar exam are refreshing and sorely needed. Requiring the memorization of intricate rules from a long list of doctrinal subjects does not guarantee the production of great lawyers. Some understanding of foundational subjects is important. But so are soft skills like client counseling, client relationship building, and empathy to clients from diverse backgrounds. I don’t know how the NextGen bar exam, or California’s version of the same, is going to test those skills. I have more confidence in the ability of law schools to teach these skills than I do in the bar exam to measure them. But it is a step in the right direction.
ENDNOTES
Allen K. Easley is Dean of Western State College of Law at Westcliff University. He can be reached at allen.easley@gmail.com.