This fall, the law schools connected with the University of California, as well as public law schools in Texas, will admit their first entering classes in two decades without the benefit of affirmative action. It will mean a drastic reduction in the number of African-Americans admitted to law schools in those two states.
In California, this is the result of a decision by the University of California Board of Trustees to end affirmative action in the university system. In Texas, it's the result of a successful lawsuit filed by white students who were denied admission to the University of Texas Law School, even though their undergraduate grades and scores on the Law School Admissions Test (LSAT) were higher than the grades and scores of some of the minority students admitted under affirmative action. The Fifth Circuit Court of Appeals ruled this a violation of federal civil-rights laws and the US Constitution.
Now it's time for the other shoe to fall. After two decades of affirmative-action programs, it is evident that there is no correlation between performance on the LSAT and performance in law school. More than three-fourths of African-Americans admitted to law schools over the last 20 years would not have been admitted under the "normal" cutoff for LSAT scores. Yet, the vast majority of these so-called "low performers" graduated from law school - many near the top of their graduating classes.
COURT decisions over the last three decades have established clear rules that any college admissions requirement must meet. First, if the requirement (in this instance, the LSAT) is not discriminatory against some group, it may be used, whether or not it is a valid predictor of school performance. The LSAT clearly does discriminate against some groups, primarily blacks.
Second, if a test is discriminatory, it may still be used if there is a valid reason for using it. Admissions tests, therefore, may still be employed if they are proven to be valid predictors of performance at school. But many people now believe the evidence will show that the LSAT is not a valid predictor of performance in law school.
Consequently, if the LSAT is discriminatory and not a valid predictor of performance, its continued use violates federal civil-rights laws and the equal protection clause of the 14th Amendment. Its use should come to an end.
It is time for the National Association for the Advancement of Colored People (NAACP) to do again what it used to do very well: File lawsuits in California and Texas to bring an end to the use of what may be an invalid and discriminatory test. That would force these and other schools to devise better, fairer admission requirements.
Why didn't schools do this two decades ago? Because they didn't have to. They could use affirmative action to "make up" for the problems caused by a discriminatory test. In 1994 Judge Carnes of the Eleventh Circuit Court ordered Birmingham, Ala., to stop using this insidious combination of invalid job criteria and affirmative action to stigmatize minorities and women job applicants.
Now that affirmative action is coming to an end, it's time to stop using the LSAT as an admissions requirement. The law schools in California and Texas should take the next step toward racial justice and real fairness.
* Darien A. McWhirter is an attorney and the author of, most recently, "The End of Affirmative Action" (Carol Publishing, 1996). His next book, "The Legal 100," will be published this fall by Carol Publishing.