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Does Testing = Race Discrimination?: Ricci, the Bar Exam, the LSAT, and the Challenge to Learning

72 Pages Posted: 14 May 2014 Last revised: 9 Dec 2014

Dan Subotnik

Touro College - Jacob D. Fuchsberg Law Center

Date Written: 2013

Abstract

Aptitude and achievement tests have been under heavy attack in the courts and in academic literature for at least forty years. Griggs v. Duke Power (1971) and Ricci v. DeStefano (2009) are the most important judicial battle sites. In those cases, the Supreme Court decided the circumstances under which a test could be used by an employer to screen employees for promotion when the test had a negative racial impact on test takers.

The related battles over testing for entry into the legal academy and from the academy into the legal profession have been no less fierce. The assault on testing is founded on an amalgam of postmodernist, industrial organizational, and diversity theory. Leading the charge is the Society of American Law Teachers, which rightly claims that the LSAT, bar exam, and related law school accreditation standards have the effect of disproportionately keeping minorities out of the profession.

But if these tests do measure something useful and are abandoned, there will be consequences — and these are often ignored. They will affect not only parties vying for admissions and jobs but the nation as a whole.

Keywords: Ricci, Griggs, LSAT, bar exam, SALT, law school, achievement tests, testing, race discrimination, AALS, ABA

Suggested Citation

Subotnik, Dan, Does Testing = Race Discrimination?: Ricci, the Bar Exam, the LSAT, and the Challenge to Learning (2013). 8 U. Mass. L. Rev. 332 (2013); Touro Law Center Legal Studies Research Paper Series No. 14-43. Available at SSRN: https://ssrn.com/abstract=2436495

Dan Subotnik (Contact Author)

Touro College - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

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