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Don't Baby Law School Applicants

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Should law schools admit students who are statistically uncertain to pass the bar on the basis of their standardized test scores? A growing conventional wisdom says no. The worry is that such students will build up large amounts of debt that they won't be able to pay back if they don't become lawyers.

This view assumes that it's up to the law schools to make the threshold decision paternalistically, “saving” naive college graduates from pursuing the dream of becoming lawyers when there’s no guarantee that they'll succeed. It treats standardized test scores as destiny and correlation-based studies as gospel.

Indeed, if law schools taken as a collective systematically denied admission to applicants with low-end LSAT scores, they would rightly be accused of elitism and denial of opportunity.

It's worth considering, then, some fundamental questions: What's the function of law school? What value should we place on giving people educational opportunities relative to their risk of accruing debt? And how much should we trust prospective students to make their own decisions under market conditions?

Our beliefs about law school admissions processes have changed drastically over the last century. At one time, my own institution, Harvard Law School, admitted many more students than would ultimately graduate, then flunked them out.

The old (possibly apocryphal) first-day Harvard Law speech, “Look to your left, look to your right; one of you won't be here by the end of the year,” reflected a conscious admissions strategy based on giving opportunities while simultaneously maintaining high standards. The idea was that lots of people should have the chance to attend, and that only those who could make the cut would be counted as graduates of the law school. This was considered the essence of meritocracy: It gave people (OK, men) the chance to succeed or fail.

Today, our conception of meritocracy at many elite universities has morphed into a technocratic faith in the capacity of admissions officers to admit only those who can succeed -- and by implication to keep out those who can't. Once you’re admitted to a fancy college or professional school, you’re pretty much going to graduate, unless you harm one of your fellow students or voluntarily quit. Elite, private institutions see it as part of their mission to make sure everyone they admit graduates -- anything less would be an admission of failure on the part of the infallible admissions process.

The less elite the institution, the lower the graduation rate. That’s also true of bar passage rates for law schools. But what, exactly, is bad about that? Not every law school needs to subscribe to the technocratic-elite belief that all its handpicked students are excellent and should therefore be guaranteed success.

It makes perfect sense that some institutions would see themselves as giving opportunities to students who, for whatever reason, didn't get into the very top institutions. If all law students were passing the bar, it would be a sign that law schools weren't taking a chance on students at the margin of the capacity to succeed.

In my own admittedly parochial view, law school isn’t just about preparing students to pass the bar or making professional lawyers of them. The education that my colleagues all over the country and I try to offer has broader benefits: We teach (I hope) rigorous thinking, strategic analysis, and a distinct approach to identifying structures of power and shaping them. Those are benefits even to graduates who don't practice law, and indeed many of the most successful graduates of my school and others don't practice law at all. They’re writers and hedge-fund managers and community organizers and presidents.

But even if the point of law school were just to pass the bar and make lots of money in private practice, there would still be good reason for some law schools to admit students with lower LSAT scores. Some studies have suggested that lower LSATs are linked to lower bar passage rates. Assume that's true: It still doesn’t mean that every student with a lower standardized test score will fail to pass the bar. To think otherwise is to deny individuals the capacity and responsibility to do well on the basis of work. A standardized test score, taken alone, shouldn't determine your future.

That brings us to the crucial question in admissions: Who should decide whether you get to go to law school? It seems pretty clear to me that if you can do the work, the decision to take a risk on legal education should be yours.

You will build up debt, to be sure. But an investment in education isn't like buying fast-depreciating consumer goods on a credit card. Education constitutes an investment in your own human capital. And in a free society, we typically believe that you should be empowered and enabled to make that investment in yourself.

Those who think law schools shouldn't admit students with low test scores are reflecting, whether they know it or not, a culture of paternalism that verges on infantilization. Since when did college graduates pursuing the American dream of professional success come to be seen as an act of self-delusion? Do we really need to protect people from trying to achieve their dreams?

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net