Bakke v. Regents Brief of the Antioch School of Law Amicus Curiae

    JAMES M. NABRIT, 111 
ASSOCIATE-COUNSEL

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1976

No. 76-811

T he R egen ts  o f  T he U n iv er sity  o f  Ca l ifo r n ia ,

Petitioner,

v.

Allan  Bailee,

Respondent.

ON WRIT OF CERTIORARI TO 
THE SUPREME COURT OF CALIFORNIA

BRIEF OF THE ANTIOCH SCHOOL OF LAW 
AMICUS CURIAE

Edga r  S. C ahn  
J ean  C am per  C ahn 
R obert  S. Ca tz

ANTIOCH SCHOOL OF LAW 
1624 Crescent Place, N.W. 
Washington, D.C. 20009 
(202) 265-9500
Counsel for Amicus Curiae.

Washington, D.C. • THIEL PRESS • 1202) 638-4521



(i)

TABIJE OF CONTENTS

MANNER OF F IL IN G .............................................................................1

INTEREST OF THE AMICUS.............................................................. 1

QUESTIONS PR ESEN TED ....................................................................3

SUMMARY OF THE ARGUMENT..................................................... 3

ARGUMENT ..........................................................................................  7

In tro d u c to ry .......................................................................................... 7

I. THE COURT BELOW ERRED IN PROHIBITING 
CONSIDERATION OF AN APPLICANT’S RACE 
IN INTERPRETING EVIDENCE BEARING UPON 
THE POTENTIAL OF AN APPLICANT TO 
ACHIEVE COMPETENCE AS A PROFESSIONAL. . . 12

A. Where Communications Skills Are Involved R ace ,
Class, Culture Or National Origin Operate To 
Impair Or Otherwise D istort The Extent To 
Which Performance On Tests Accurately Re­
flects Potential Competence At Communication
S k ills ........... .. ........................................................................ 14

B. Where The Definition Of Professional Competence 
Incorporates Values, Assumptions And Perspec­
tives Held By The Majority Culture, Poor Test 
Performance May Only Reflect The Extent Of 
The Divergence Between The Majority And 
M inority On Assumptions A bout, For Instance,
The Fairness Of Judges, Or The Extent To Which 
Rules Determ ine Results ................................................ 16

C. Where Tests And Grades Only Measure An 
A pplicant’s Readiness To Benefit From One 
Pedagogic M ethod And To Perform On One 
Range Of Test Instrum ents, They Cannot Be 
Predictive Of Potential To Achieve Profes­
sional Competence Via Other Pedagogic And
Testing M e th o d s .................................................................23

II. THE COURT BELOW ERRED IN PROHIBITING 
CONSIDERATION OF AN APPLICANT’S RACE 
IN INTERPRETING EVIDENCE BEARING UPON 
THE POTENTIAL CONTRIBUTION AN APPLI­
CANT WILL MAKE TO FURTHERING THE PRO­
FESSION’S COMMITMENT TO EQUAL JUSTICE
UNDER LA W ............................................................................31

C O N C LU SIO N .....................................................................................39



(ii)
Page

APPENDIX A — Antioch Law School Clinical Evaluation
Sum m ary Form .............................................................................  l a

APPENDIX B — A ntioch Law School Admissions
M a tr ix .................................................................................................. 13a

APPENDIX C — Paired List o f Assumptions and
C ounter A ssum ptions.....................................................................20a

TABLE OF AUTHORITIES
Cases:

Bakke v. Regents o f  University o f  California, 132 CaL
Rptr. 680, 553 P.2d 1152 (1976)................. 12, 13, 31, 32, 35

Brotherhood o f  Railroad Trainmen v. Virginia, ex.
re i Virginia State Bar, 377 U.S. 1 (1 9 6 4 ) ............................. 32

DeFunis v. Odegaard, 416 U.S. 312 ( 1 9 7 4 ) ................................ 13

Lau v. Nichols, 414 U.S. 563 (1974).................... .. ......................  14

NAAC P v. B utton, 371 U.S. 415 (1 9 6 3 ) .........................  32

R u n yo n  v. McCrary, 427 U.S. 160 (1 9 7 6 )........................................2

United Mine Workers v. Illinois State Bar, 389 U.S.
217 (1 9 6 7 )........................................................................................  33

United Transportation Union v. Michigan, 401 U.S.
576 (1 9 7 1 ) ........................................................................................ 33

Constitutional Provision:

United States C onstitution, Fourteenth Amendment
.................................................................... passim

Other Authorities:
ABA CODE OF PROFESSIONAL RESPONSIBILITY

.............................................................. 11, 32, 33

ABA ETHICAL OPINION 242 ( 1 9 4 2 ) ........................................  20
Askin, Eliminating Racial Inequality in a Racist World,

2 Civ. Lib. Rev. 96 (19 7 5 ) ................................................... 32, 33
J . Baum and C. Ireland, M inority S tuden t Performance 

on Pathology Examinations, 67 J . NAT’L. MED.
ASSOC. 324 (July 1 9 7 5 ) .........................................................9- 25



(  iii)

Other Authorities, continued: ^a§e

Cahn and Cahn, M inority Students, Lawyering Compe­
tence and Bar Exam inations (Nov. 1976) (unpub­
lished paper presented at a Conference o f the Coun­
cil on Legal Education for Professional Responsibility)

.............................................................. 18, 19, 21

A. Carp, S. Johnson  and E. Tibby, R eport on L S A T /
San Francisco Consortium Project in that Area, 
reprinted in LAW SCHOOL ADMISSION COUNCIL, 
REPORTS OF LSAC SPONSORED RESEARCH 174
(1 9 7 6 ) ................. .. .............................................................  16, 17, 18

Character, The President Speaks, 9 NAT’L BAR
BULL. 2 (Feb. 1 9 7 7 ).................................................................... 10

COLORADO ADVISORY COMMISSION TO THE 
UNITED STATES COMMISSION ON CIVIL 
RIGHTS, ACCESS TO THE MEDICAL PROFES­
SION IN COLORADO BY MINORITIES AND
WOMEN 5 (1 9 7 6 ) ....................................................................22, 28

Cooper, The New Medical College Adm ission Test, 52
J .  MED. ED. 77 (Jan. 1 9 7 7 ) ...................................................... 28

R  Ebert, Facts A b o u t M inority Students at Harvard 
Medical School, 294 NEW ENGLAND J . MED.,
1402-3 (June 14, 1 9 7 6 ) ..............................................................  26

Educational Testing Service, Interpretive Booklet for
LSAT/LSDAS (1 9 7 4 )...................... ............................................. 24

J . George, The Domino Theory of Legal Education: An 
Empirical Analysis of Entry Barriers to  the Legal Pro­
fession (1976) (unpublished thesis in Antioch School
of Law Library)....................................................................9> 23, 24

P. VanR. Miller, Personality Differences and Student 
Survival in Law School, reprinted in LAW SCHOOL 
ADMISSION COUNCIL, 1 REPORTS OF LSAC 
SPONSORED RESEARCH 299-310 (1 9 7 6 ) ..........................  29

National Association for Law Placement, Em ploym ent 
Report on Law School Graduates of the Class of
1975 (1976) (mimeograph copy on file in Placement 
Office o f A ntioch School of L a w ) .................................. 34



(iv)

Page
Other Authorities, continued: ~

NATIONAL BAR ASSOCIATION, ECONOMICS AND 
OFFICE PRACTICES OF THE BLACK LAWYER 
(1 9 7 1 ) ....................................................................................................34

Nom ination o f  Patricia Roberts Harris, Hearings Before  
the Senate Comm, on Banking, Housing and Urban 
A ff. 95th  Cong., 1st sess., 41 ( 1 9 7 7 ) ............................... 37, 38

Note, The Negro Lawyer in Virginia: A Survey, 51
VA. L. REV. 512 ( 1 9 6 5 ) ................................................................ 34

R. Pipkin and E. Katsch, Undergraduate Studies and 
Law School Gatekeepers, 28 J . LEGAL ED. 103 
(1 9 7 6 ) ...................................................................................................... 5

The Organized Bar: Self-Serving or Serving the Public?
Hearing Before the Subcom m . on Representation  
o f  Citizen interests o f  the Senate Comm, on the 
Judiciary, 93rd Cong. 2d Sess. 73 ( 1 9 7 4 ) .......................  10

EL Simon and J .  Covell, Performance o f  Medical Students  
A d m itted  Via Regular and Admission-Variance 
Routes, 50 J .  MED. ED. 237 (1975).......................... 24, 25, 26

R. Sm ith, Double Exposure: The Sinister Magic that 
Would Turn Black S tudents into White Lawyers,
2 LEARNING AND THE LAW 24 (Summer 1975) . . . .  15

J . Wingard & J .  Williamson, Grades as Predictors o f  
Physicians’ Career Performance: A n  Evaluative 
Literature Review, 48 J .  MED. ED. 311 (1973)

26, 27, 29



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM. 1976

No. 76-811

T h e  R e g e n t s  o f  T h e  U n iv e r s it y  o f  Ca l if o r n ia ,

Petitioner,

v.

A l l a n  Ba k k e .

Respondent.

ON WRIT OF CERTIORARI TO 
THE SUPREME COURT OF CALIFORNIA

BRIEF OF THE ANTIOCH SCHOOL OF LAW 
AMICUS CURIAE

MANNER OF FILING

This brief amicus curiae is filed with the written 
consent of the parties pursuant to  U.S. Supreme Court 
Rule 42.

INTEREST OF THE AMICUS
The amicus is the Antioch School of Law, the only 

law school with its own faculty-staffed Teaching Law 
Firm and a three year clinical program expressly

1



2

designed to  produce graduates com petent to engage in 
the practice of law im m ediately upon com pletion of 
law school.

Since its inception, the Antioch School of Law has 
had a m inority enrollm ent comprising 30% or higher of 
its entering student body w ithout either a separate or a 
preferential admissions procedure for m inority appli­
cants.

The admissions process focuses on tw o factors: the 
applicant’s poten tial to  achieve com petence as a lawyer, 
and poten tial contribu tion  to  equal justice under law and 
to  improving the capacity of the legal system to  respond 
to grievances. We cannot rely upon the Law School 
Admission Test (LSAT) or Grade Point Average (GPA) 
to  predict either potential, com petence or contribution, 
o r even perform ance as a student in a law school clinic.

The decision below, if extended to law school 
admissions, would effectively destroy our ability to 
make predictions about the potential professional 
com petence of applicants.* For reasons set forth  within, 
the race of the applicant is highly significant to  our 
in terpretation of the evidence bearing on potential 
com petence and potential contribution.

It is of u tm ost im portance to  the School that it be 
perm itted to  continue, develop and refine an admissions 
process which effectively assesses potential lawyering 
com petence of bo th  white and non-white applicants.

We believe tha t A ntioch’s experience sheds im portant 
light on the relationship between the race of an 
applicant and the in terpretation of different types of 
evidence bearing upon their potential com petence and 
contribution.

* A ny decision in this case would also affect private schools, 
see R u n yo n  v. McCrary, 427 U.S. 160 (1976).



3

QUESTIONS PRESENTED

1. Whether the Equal Protection Clause prohibits all 
consideration of an applicant’s race in the admissions 
process even where relevant to an inquiry in to  the 
potential of an applicant to achieve competence as a 
professional.

2. Whether the Equal Protection Clause prohibits all 
consideration of the applicant’s race in the admissions 
process in determining the probable future contribution 
of an applicant to the profession’s com m itm ent to 
equal justice and requires the adoption of only 
“nonracial alternatives” to efforts aimed at remedying 
the dearth of professionals serving m inority com­
munities.

SUMMARY OF ARGUMENT

The court below erred in failing to  distinguish 
between two different uses of race:

1. use of race to trigger the application of different 
(and arguably “ low er” ) admissions standards;

2. use of race to  interpret and evaluate evidence 
essential to the uniform application of uniform 
admissions standards to  applicants of different races.

While the instant case involves admission to  medical 
school, we believe most of the same considerations 
apply to  admission to  law school.

It is generally acknowledged that test scores—both 
the LSAT and the Medical College Admission Test 
(MCAT) do not purport to  predict com petence as a 
lawyer or a doctor. At best, they predict performance 
as a student—a law student or a medical student—on 
those examinations which measure what students have 
learned from academic courses. Nor do they purport to



4

predict student perform ance in a clinic—medical or 
legal.

I.

RACE IS IMPORTANT IN EVALUATING AN APPLI­
CANT’S POTENTIAL FOR COMPETENCE AS A PROFES­
SIONAL.

There are at least three types of situations where an 
applicant’s race bears directly upon the in terpretation 
of test scores, grade point average, and other evidence. 
These situations becom e far more im portant if one 
shifts the focus in admissions from  an inquiry into a 
candidate’s potential success as a student to  an inquiry 
into potential com petence as a professional. They are:

1. Where com m unication skills are being evaluated 
by tests, poor test scores of m inority applicants may 
understate the adequacy of present skills in com m uni­
cating with clients or patients. Equally im portant, they 
may distort judgm ents about the applicant’s potential 
to  achieve proficiency in com municating with persons 
of different ethnic groups, w hether by word of m outh 
or in writing. Knowledge of the applicant’s race may be 
essential to  in terpretation of such data.

2. Where the definition of professional com petence 
incorporates values, assumptions and perspectives held 
by the m ajority culture, poor test performance may 
only reflect the extent of the divergence between the 
majority and m inority culture on assumptions about, 
for instance, the fairness of judges or the life situation 
of patients.

3. Where tests and grades only measure an applicant’s 
readiness to  benefit from one pedagogic m ethod and to 
perform  on one range of test instrum ents, they cannot 
be predictive of potential to achieve and dem onstrate



5

professional com petence via other pedagogic and testing 
m ethods such as those involved in programmed learning, 
simulation and clinical training. There is a new body of 
data suggesting that such procedures consistently 
understate the potential to achieve professional com­
petence of all candidates with learning styles different 
from those required by conventional teaching and 
testing methods. In practice this operates to the 
detrim ent of m inority candidates and economically 
disadvantaged candidates, for it measures academic ac­
culturation rather than potential. It can also operate 
to  the detrim ent of talented, upper middle class, white 
candidates who are poor test-takers. Admissions based 
primarily on academic acculturation appear least 
appropriate where clinical (applied or practical) training 
is available, where other assessment procedures can be 
utilized and where the ultim ate objective is professional 
com petence, no t test-taking proficiency. The use of 
traditional predictors of academic performance as the 
sole or primary basis for admissions decisions1 requires 
special scrutiny for minorities, economically dis­
advantaged persons and persons with distinctive learning 
styles lest unw arranted superiority be automatically 
attribu ted  only to the educationally advantaged with 
learning styles that conform to  the society’s dom inant 
class and culture.

P ip k in  and Katsh, Undergraduate Studies and Law School 
Gatekeepers, 28 J .  LEGAL ED. 103, 107 (19 76).



RACE IS IMPORTANT TO EVALUATION OF AN
APPLICANT’S POTENTIAL CONTRIBUTIONS AS A
PROFESSIONAL.

When w hite and non-white candidates make as­
sertions about their in tention to  contribute to  pro­
m oting equal justice by serving m inority communities, 
and even w hen b o th  marshall evidence of dem onstrated 
com m itm ent to  do so, there is empirical data to 
support the proposition that a higher percentage of 
non-whites will, in fact, devote a considerable portion 
of their professional lives to  serving m inority com­
munities. This is no t because of greater selflessness but 
because such service may be virtually involuntary, it is 
frequently  the product of demands of the m inority 
com m unity, of pressures, appointm ents and job  offers 
from both  the public and private sector, and of tha t 
com m unity of interest to  which members of racial 
minorities are heir because of the peculiar injustices to  
which they are subject. Accordingly, we submit tha t a 
professional school which desires to  consider potential 
contribution of an applicant to provide services to 
m inority com munities is no t free to  ignore the race of 
the applicant or disregard empirical evidence on the 
differing predictive value to be assigned to  similar 
assertions by white and non-white applicants.



7

ARGUMENT

INTRODUCTORY

If the opinion of the Supreme Court of California 
stands as an authoritative interpretation of the Equal 
Protection Clause, then all consideration of the race of 
an applicant to  professional school is proscribed and 
only racially neutral or “nonracial alternatives” may be 
utilized to  achieve policy objectives.

We believe that the court below has erred in failing 
to distinguish between two different uses of races:

1. Use of race to trigger the application of a 
different process and different (and arguably 
“ lower” ) standards; and

2. use o f race as essential to  interpret evidence in 
order to  secure the uniform  application of 
uniform  admissions standards to  applicants of 
different races.

The Supreme Court of California appears to have 
proscribed b o th  uses of race. The constitutionality 
of the first use of race to accomplish an im portant 
social objective, and the necessity of preferential 
admissions is being addressed by other amici.

This brief seeks only to challenge the prohibition on 
the second use of race by setting forth those contexts 
in which the applicant’s race must be considered in 
interpreting critically im portant evidence if there is to 
be uniform  application of uniform admissions standards 
to candidates of different races. Accordingly, we submit 
that the Equal Protection Clause, far from proscribing 
consideration of race may, in certain contexts, mandate 
an awareness of its significance. This brief draws 
primarily upon A ntioch’s experience and research in 
admissions and in assessment of professional com ­
petence.



For the past several years, Antioch has received funds 
from the Council on Legal Education for Professional 
Responsibility; the Exxon Education Fund; the Fund 
for the Im provem ent of Post-Secondary Education; the 
Goldman Foundation; the Legal Services Corporation 
(originally the Office of Econom ic O pportunity); the 
National Endow m ent for the Humanities; and the 
National Institutes of Education, among others, to 
develop definitions of the core competencies required 
of lawyers, to  develop evaluation or assessment 
procedures to  determ ine the level of com petency 
achieved by students, and to  develop teaching methods 
which im part professional com petency more effectively. 
(See A ppendix A for the latest revised definitions of 
lawyering competencies and the forms used in assessing 
student perform ance in the School’s Teaching Law 
Firm.)

Since its founding, the Antioch School of Law has 
always utilized a distinctive admissions process which 
bases admissions on two factors:

1. Potential of the applicant to attain  com petence 
as a lawyer; and

2. poten tial contribution of the applicant to  equal 
justice under law and im provem ent of the legal 
system ’s capacity to  respond to  grievances.

From the outset, this has involved a review of many 
types of evidence bearing upon these determ inations: 
LSAT, grades, essays, recom m endations, interviews, 
work products, term  papers, com m unity involvement 
and the like. During the past year, this process of 
analysis has been codified in the form of an admissions 
m atrix which is used to  score applications in terms of 
the weight to  be given to  different types of evidence in 
reaching an overall assessment of the candidate’s 
potential (the current matrix appears as Appendix B).



9

This, in turn, will provide a basis for further research 
on correlations between ratings made at the time of 
admission and dem onstrated competence as manifested 
in the perform ance of lawyering tasks in the School’s 
Teaching Law Firm and both  competence and con­
tribution manifested following graduation through 
follow-up studies now  being designed. Our initial study 
indicated tha t the Writing Score and GPA (but no t the 
LSAT) correlate with both clinical and classroom 
performance only during the first year. There ceases to 
be any correlation whatsoever by the end of the second 
year.2 It appears that the massive infusion of clinical 
training during the first two years reduces the 
correlation between the LSAT, prelaw school variables 
and grades in both  the classroom and the clinic to zero 
or chance by the end of the second year.3

While the research is still in preliminary stages and it 
is perhaps prem ature to extrapolate from law to medicine, 
we wish to  draw the C ourt’s atten tion  to  a study at 
Temple University Medical School which found minor­
ity students performing below the median on objective 
knowledge tests in pathology but performing con­
sistently above the median on clinical tests in pathology 
designed by the same instructors to test for the same 
knowledge by requiring the actual identification of 
organs or tissues and diagnosis of the pathological 
process on actual specimens.4 The implications of these 
studies are discussed below.

2J . George, The Domino Theory of Legal Education: An 
Empirical Analysis of Entry Barriers to the Legal Profession 
(1976) (unpublished thesis in Antioch School of Law Library).

4J . Baum and C. Ireland, M inority S tudent Performance on 
Pathology Examinations, 67 J . NAT’L MED ASSOC. 324 (July 
1975).



10

Our experience, supported  by other data, indicates 
tha t the fact of an applicant’s race has empirically 
dem onstrable significance in evaluating evidence bearing 
upon potential com petence and potential contribution. 
Through application of the admissions m atrix the 
Antioch School of Law admissions process has 
consistently produced a m inority enrollm ent of th irty  
percent or higher w ithout resort to  separate standards 
or a separate process.

The com m on denom inator of the School’s concern 
w ith both  com petence and contribution is ultim ately 
the citizenry’s right to  counsel—counsel in whom they 
can have confidence w ith respect to  com petence, to 
zealousness and to  improving the capacity of the legal 
system to  provide redress through law.5 We do not 
urge, in this connection, tha t Black, Latino, Native 
American, Asian and Appalachian clients can only be 
served by Black, Latino, Native American, Asian and 
A ppalachian lawyers respectively, bu t we do assert tha t 
the absence of m inority members of the bar and bench, 
along with the lack of m inority lawyers as defense 
counsel, as judges, as prosecutors, and as decision­
makers 6 taints the entire system and undermines all 
possibility of confidence in the system by those with 
greatest reason to  distrust the legal system. The

5 For an articulate statem ent on the im portance of such 
considerations, see The Organized Bar: Self-Serving or Serving the 
Public? Hearing before the Subcom m . on Representation o f  
Citizen Interests o f  the Senate C om m ittee on the Judiciary , 93rd 
Cong., 2d Sess. 73 (1974) (Statem ent of Orville H. Schell).

6Black lawyers still am ount to scarcely two percent of the 
profession, Character, The President Speaks, 9 NATIONAL BAR 
BULL. 2 (Feb. 1977). Of the estim ated 522,294 elected officials 
in the United States, eight-tenths of one percent (0.8%) are Black. 
NATIONAL ROSTER OF BLACK ELECTED OFFICIALS 1 
(1975).



11

profession recognizes in its canons that the right of the 
public is no t only tha t justice be done—but that it seem 
to be done; no t only that the system be fair and 
equitable and non-discrim inatory—but that it also 
appear to  be so.7 The final touchstone is trust. And a 
profession that is 97.5% white can assert its com m it­
ment to  equality bu t it cannot compel trust from those 
to whom such self-serving statem ents make a travesty of 
meaningful equality before the law.

With this as foreword, we turn to those elements of 
the admissions process where we believe that race must 
be perm itted to play a role if unitary standards are to  
be applied uniform ly to  data that is susceptible of 
different in terpretation depending upon the applicant’s 
race.

7The American Bar Association states . . the very es­
sence of the legal system is to provide procedures by which 
m atters can be presented in an impartial manner so that they 
may be decided solely on the merits. . . ABA CODE OF 
PROFESSIONAL RESPONSIBILITY, EC9-4; because “ Every 
lawyer owes a solemn duty to uphold the integrity and honor of 
his profession; to encourage respect for the law . . .” each lawyer 
must “ . . . strive to avoid no t only professional im propriety but 
also the appearance of im propriety.” Id. at EC 9-6.



12

I.

THE COURT BELOW ERRED IN PROHIBITING CON­
SIDERATION OF AN APPLICANT’S RACE IN INTER 
PRETING EVIDENCE BEARING UPON THE POTENTIAL 
OF AN APPLICANT TO MEET THE ACADEMIC RE 
QUIREMENTS OF THE SCHOOL AND/OR TO ACHIEVE 
COMPETENCE AS A PROFESSIONAL, AND IN RE­
QUIRING THAT ONLY RACIALLY NEUTRAL LINES 
OF INQUIRY BE USED IN ASSESSING THE POTENTIAL 
OF AN APPLICANT TO SATISFY ACADEMIC REQUIRE­
MENTS AND/OR ACHIEVE COMPETENCE AS A PRO­
FESSIONAL.

The Supreme Court of California’s opinion in Bakke v. 
Regents o f  The University o f  California, 132 Cal. Rptr. 
680, 553 P.2d 1152 (1976) appears to  foreclose all 
consideration of race in assessing the potential of an 
applicant to  achieve com petence: “ To accept at the 
outset the premise tha t a m inority applicant may be 
better qualified because of his race would foreclose 
consideration o f the constitutional issue raised by the 
com plaint.” Id. a t 1161. The court expressly does not 
require mechanical compliance with ranking by grade 
point average and test scores—though tha t may be the 
result of an affirm ance:

The University is entitled  to consider, as it does 
w ith respect to applicants in the special program, 
th a t low grades and test scores may no t accurately 
reflect the abilities of some disadvantaged students; 
and it may reasonably conclude tha t although their 
academic scores are lower, their potential for 
success in the school and the profession is equal to 
or greater than tha t of an applicant with higher 
grades who has not been similarly handicapped. 
553 P.2d at 1166.



13

The court expressly gives it blessings to consideration of 
other factors such as personal interviews, recom m enda­
tions, character, and matters relating to the needs of 
the profession and society. But the court is explicit in 
prohibiting utilization of race in applying admissions 
standards: “ No applicant may be rejected because of his 
race, in favor of another who is less qualified, as 
measured by standards applied without regard to race” 
(emphasis added). Id. The court cites with approval Mr. 
Justice Douglas’ statem ent in De Funis v. Odegaard, 416 
U.S. 312, 336-337 (1974), tha t “ [W jhatever his race, 
he had a constitutional right to  have his application 
considered on its individual merits in a racially neutral 
m anner.”

Our data and experience indicate that the fact of an 
applicant’s race has empirically demonstrable signifi­
cance in evaluating evidence bearing upon a candidate’s 
potential to  achieve professional competence. We assert 
th a t the court below erred in prohibiting all considera­
tion of race where race or ethnic background must be 
known in order to ascertain w hether a poor test score 
or low Grade Point Average evidences lack of potential 
competence or merely lack of acculturation. As the 
court properly points out, there are numerous factors 
which legitimately may alter assessment ol the 
predictive value of test scores and grades. Race is not 
the only one nor always the dispositive one, bu t it is 
one. A ntioch makes an individualized assessment of test 
scores and grades for all candidates (See Appendix B). 
We have found test scores and grades particularly 
suspect for predictive purposes for “ late bloom ers,” for 
persons several years out of school, for poor whites 
from economically depressed regions, for candidates 
with records as poor test takers bu t high achievers, and 
for children of first generation immigrants. Our



14

experience indicates tha t consideration of the appli­
can t’s race, cultural background and class can be 
essential and in various situations compels a different 
in terpretation of the predictive significance of test 
scores and grades. Race in particular operates in this 
fashion in at least three types of situations: where 
English is a second language and com m unication skills 
are being tested; where functional definitions of 
com petence entail some degree of acculturation or 
adjustm ent to the institutions, mores, and assumptions 
of the dom inant society; and where tests appear to  
understate the actual com petence of minorities because 
linked to  teaching or testing procedures which are 
geared to  the learning styles and learned behavior 
patterns of the dom inant culture. We shall consider 
each in turn.

A. Where Communications Skills Are Involved 
Race, Class, Culture Or National Origin Op­
erate To Impair Or Otherwise Distort The 
Extent To Which Performance On Tests 
Accurately Reflects Potential Competence At 
Communication Skills.

The need to  take race or “ ethnicity” into account in 
interpreting test scores is most obvious where English is 
a second language. Except for the sweeping proscription 
of consideration of race, it would no t seem startling to 
announce tha t cognizance should be taken of the tact 
tha t an applicant’s prim ary language was Spanish or 
Navajo or Chinese. Cf. Lau v. Nichols, 414 U.S. 563 
(1974). The same principle would apply to  persons 
raised in homes where only German, Italian or Polish 
was spoken.

The function of race becomes more subtle in dealing 
with variations on Standard English such as dialects and



15

“ Black English.” No one disputes that the ability to 
utilize Standard English with precision and grammatical 
accuracy may be essential for the discharge of certain 
professional functions. But A ntioch has defined com­
petency in oral communications as “ the ability to 
assess, control and vary verbal and non-verbal com m uni­
cations w ith an audience(s) in a given situation to 
maximize the accomplishm ent of objectives.” This 
includes the ability to  listen, understand and respond. 
In recent weeks, Antioch has had to review the 
implications of this com petence in considering w hether 
to admit deaf applicants and has responded affirm a­
tively because of the special communications problems 
of deaf clients. In like fashion, because we believe it 
appropriate to consider the communications needs of 
Black clients, Latino clients, and Asian clients to be 
understood by their lawyers, we put clients’ needs on a 
par w ith the needs of judges and decision makers who 
require com m unication in upper middle class English. 
Cf. Ralph R. Smith, Double Exposure: The Sinister 
Magic that would turn Black Students into White 
Lawyers. 2 LEARNING AND THE LAW 24-26 
(Summer 1975). We subm it tha t in situations involving 
potential com petence in communications skills, in­
stances arise where it is appropriate and even essential 
to inquire into race, ju st as in other instances it is 
essential to  inquire into country or region of origin in 
order to  interpret test scores and grades.



16

B. Where The Definition o f Professional Com­
petence Incorporates Values, Assumptions 
And Perspectives Held By The Majority 
Culture, Poor Test Performance May Only 
Reflect The Extent Of The Divergence 
Between The Majority And Minority Culture 
On Assumptions About, For Instance, The 
Fairness Of Judges, Or The Extent To Which 
Rules Determine Results.

There have been relatively few analyses of the 
reasons m inority perform ance on the LSAT has con­
sistently fallen behind the d istribution of scores by 0
w hite students. Some attribu te  it simply to past 
educational deprivation and to  lack of practice at 
objective, m ultiple choice tests. We suspect other 
factors come in to  play at times. For example, 
applicants of considerable ability express the view tha t 
the LSAT is a kind of trick game which they cannot 
win. An analysis of the types of errors made by 
m inority students in one study indicates tha t part of the 
problem  may stem  from  a belief tha t the LSAT is a 
game, played in accordance with unknow n rules—and 
th a t the stated rules or instructions are not to be 
trusted .8 The study provides the following example in 
which m inority students’ understanding o f applicable 
norms and values consistently produced error. The 0
directions stated, “ The principles may be either real or 
imaginary bu t for the purpose of this test you are to 
assume them  to  be valid.” 9 In the following example, 
those directions were disregarded:

8A. Carp, S. Johnson  and E. Tibby, Report on LSAT/San 
Francisco Consortium  Project in that Area, reprinted in LAW 
SCHOOL ADMISSION COUNCIL, REPORTS OF LSAC 
SPONSORED RESEARCH 174 (1976).

9Id. at 178.



17

William, on his first date with Anne, surprised 
her with a kiss while they were attending a movie. 
Anne, who had been on numerous movie dates 
w ith boys in the com m unity was startled and 
offended by his familiarity. In a suit by Anne 
against William,

(A) Anne will win, because a kiss on the first date 
is not norm al in the com m unity in which Anne 
and William live;
(B) Anne will win, because the proper activity in 
a theatre  is watching the show;
(C) Anne will lose, because kissing in the movie 
is com mon in some cities;
(D) Anne will lose, because W’illiam did no t hurt 
her in any way.

“A ” is the correct answer, bu t invariably the 
Golden Gate students chose “C” because kissing in 
the movies is apparently common in their ken. 
Their reasoning was tha t anyone knows kissing is 
an acceptable occurrence in theatres and to  even 
attem pt to sue someone for kissing a person in the 
theatre ju st can’t be for real.10

Test-taking behavior fell in to  several patterns, all of 
which appear to  be characterized by a “how to  beat the 
game” approach.11 In short, it appears tha t students

10
1 1 ,

Id.

Id. at 176-177. 
test-taking behavior:

The study reports the following types of

(1) The Key Word Theory. In  the Reading Recall sub-test, 
students would find a certain word in one of the answers that 
had also been in the paragraph they had read and the answer 
which contained that w ord would be their choice.

(2) The Win-or-Lose Syndrome. In the Principles and Cases 
sub-test, after reading the cases and before considering the 
possible answers some students would decide if it would be a

[footnote continued]



18

tended to  stick to  those “ survival behaviors” which had 
w orked for them  in the past, rather than entering into 
conventions required by the test and taking the test 
expressly on its own terms.

We have observed tha t this same pattern  is 
responsible for some of the difficulties encountered by 
m inority students on first year law school exam inations. 
Many of the logical processes dem anded of law students 
require w hat we have described elsewhere12 as an 
entitlem ent perspective. The entitlem ent perspective 
embodies a belief tha t rules which define rights 
determ ine outcom e. Psychologically this am ounts to  a 
belief tha t one can control one’s fate by knowing and 
invoking the rules. That belief is posited on the 
assum ption th a t rules control the judge or decision­
maker and tha t the person who is injured ought to be 
able to  invoke those rules. W ithout tha t entitlem ent 
perspective, one tends to  believe that everything rides on 
luck—on the whim, largesse, or prejudices of the judge. 
Marinda Harpole, the D irector of the Basic Skills 
Program at A ntioch explains tha t the acculturative 
dim ension of legal education also involves a foreign set

win-or-lose situation. Then, after reading the alternative answers, 
they w ould elim inate those which did no t agree w ith their 
“ decision.”

(3) Use o f  Independent Inform ation. On the Reading 
Com prehension sub-test, where knowledge of current events was 
a factor on some items, students often  relied on their own 
knowledge, gained from  TV, newspaper articles, informal 
conversations or school courses in answering the questions.

12Cahn and Cahn, M inority Students, Lawyering Competence 
and Bar Exam inations (November 19, 1976) (unpublished paper 
presented at a Conference of the Council on Legal Education for 
Professional R esponsibility).



19

of assumptions about the substantive im portance of 
procedure:

Justice — for the typical m inority student, means 
the ultim ate trium ph of right over wrong. . . . The 
Anglo-American legal system is one in which the 
goal o f situational justice (doing what is right in the 
case at hand) has been largely sacrificed to the 
goals of predictability, regularity, uniform ity, and 
historical unity.

Within the framework of this rule-bound legal 
system, justice is achieved when the process takes 
place in an orderly manner in conform ity with all 
of the applicable rules. A nother way of expressing 
this is tha t justice is simply “ having your day in 
court.” Justice inheres in the process, not the 
product.

It is extrem ely difficult to  acquire the process 
orientation when one has been imbued with a 
product orientation for most o f one’s life.13

Our analysis suggests that competence in law school is 
peculiarly culture bound—tied to  assumptions about the 
legal system, the operations of rules of law, the 
perceptions of the rule of judges. However, m inority 
students usually bring to  law school a different 
perception of the legal system and a different 
perception of the causal rules which determine the 
outcome of cases. The Law School Admission Council 
study suggests that they will tend to stick to the 
“ cause-and-effect” rules that they know and trust. We 
have selected some of the basic “ outcom e predictive” 
rules that law students are expected to master and 
contrasted them  with the causal principles that a 
life-time of experience imparts to  minority students.

13 Q uoted in Cahn and Cahn, supra.



The most fundam ental principle involved is that of 
stare decisis: “ Like cases will be decided alike, on the 
facts, on the merits, w ithout regard to  the race or class 
of the parties.” M inority students do no t believe that. 
They start from the premise tha t one can best predict 
the outcom e of a case by knowing the race and wealth 
of the parties. That and tha t alone is usually sufficient 
to predict w hat rules apply and who wins.

Similarly, law students m ust come to  appreciate that 
judges are no t legislators; they must apply the law; they 
cannot create a separate rule for each individual; they 
are not all-powerful because of the constraints imposed 
by their institu tional ro le .14 M inority students start 
from the opposite premise: tha t judges are all-powerful, 
tha t judges can decide a case any way they want and 
then rationalize the result after the fact. They read 
dissents as confirm ation of tha t belief, and they tend to 
view decisions as simply expressions of the personal and 
political values of the decision-maker.

When engaging in rigorous legal analysis one must 
assume tha t the exercise has some utility , tha t judges 
are fair, tha t they will respond to  sound legal 
argum entation and will be persuaded by a principled 
justification in terms of precedent, the literal wording 
of a rule, situation sense or underlying policy 
considerations. M inority students find it very difficult 
to  believe tha t a judge whom they perceive as a “ too l” 
o f the “ white power structu re” will be unpersuaded by 
conclusory moral exhortation bu t will respond to 
esoteric distinctions, doctrinal manipulations and 
analysis of fact or policies. Many initially lack a sense 
o f the audience they  m ust address and persuade.

l i See ABA OPINION 242 (1942).



21

Other fundamentally different perceptions of law and 
lawyers control, at least initially, the response of many 
minority students. Some approach law school examina­
tions as a game in which the object is to guess who 
wins and then to display as much knowledge of as 
many rules and cases as possible. Professor Charles 
Kelso, a Visiting Professor this past year at Antioch, 
decided to experiment with the hypotheses that the 
ability to take a law school examination involved a 
process of acculturation for minority students. Thirteen 
of the fifteen students who flunked his contracts 
examinations turned out to be minority students. He 
provided model answers, critiques of each paper and 
then gave a reexamination using different hypothetical 
but applying the same qualitative standards. All but one 
of the students passed the reexamination; most reported 
that they had never taken an examination where the ob­
jective was to demonstrate that they could give reasoned 
analysis of the arguments for each side and where the 
outcome predicted was far less important that the 
rationales advanced for justifying the conclusion.

We believe that law school examinations are, in no 
small part, measures of the extent to which a candidate 
can articulate, utilize, and manipulate assumptions, 
inferences and causal principles held by the dominant 
class, race and culture. (See Appendix C for a paired 
list of those assumptions and counter-assumptions, held 
by minority students. Cahn & Cahn, supra). This may be 
true of medical education, but we lack the expertise to 
articulate the role which class or cultural assumptions 
may play in diagnostic and problem solving activities of 
physicians. It is at least possible that in interpreting 
symptoms, making inferences about the causes of 
illness, assessing possible psychosomatic components of 
physical illness, or prescribing an appropriate and



22

realistic course of treatm ent, some culture-related 
assumptions may be involved.15

We believe that a culture-bound definition of 
lawyering com petence is functionally justified: lawyers 
must function in this society’s legal system and within 
the fram ework of the dom inant cu lture’s laws—even 
when they seek to change those laws or tha t system.
Tests which measure the degree of acculturation tha t 
has already taken place cannot be considered a definitive 
measure of potential to “become acculturated” or po ten­
tial to achieve com petence for persons who are not mem­
bers of the dom inant class, race or culture. The discrimin- $
atory  im pact resulting from reliance on tests which 
necessarily assume or measure tha t acculturation is a 
direct function of the degree of variance between the 
language, values, beliefs and inferences of the m inority 
and m ajority culture.

Accordingly, we believe it to be of critical 
im portance to  know  the race and class of the applicant 
in interpreting the data we receive. Otherwise we have 
no way of knowing w hether poor scores or poor 
perform ance indicate lack of potential or merely lack of 
acculturation. Moreover, in distinguishing among m inor­
ity candidates, we need to  determine who has the greater 
potential to  achieve tha t degree of acculturation 
entailed in attaining lawyering com petence. That 
requires an assessment of intellect, of flexibility, of

15 COLORADO ADVISORY COMM. TO U.S. COMMISSION 
ON CIVIL RIGHTS, ACCESS TO THE MEDICAL PROFESSION 
IN COLORADO BY MINORITIES AND WOMEN 5-7 (1976).



23

willingness to entertain assumptions contrary to those 
known and experienced. It is difficult to  believe that 
we can arrive at such a determ ination w ithout 
consideration of race (and background factors asso­
ciated with race) in assessing and interpreting the 
evidence.

We do know that in order for minority students to 
become com petent lawyers, they must engage in a 
partial suspension of deeply-held and often personally 
confirm ed beliefs about the legal system. To the extent 
this is so, it may help to explain the increasing body of 
evidence suggesting that practice-oriented tests and 
clinical assessment where feedback is reality-based 
appear to  be less culture-biased and result in sharply 
different evaluations of minority students (both law and 
medical students) from more traditional essay or multiple 
choice examinations. These data are discussed in the 
following section.

C. Where Tests And Grades Only Measure An 
Applicant’s Readiness To Benefit From One 
Pedagogic Method And To Perform On One 
Range Of Test Instruments, They Cannot Be 
Predictive Of Potential To Achieve Profes­
sional Competence Via Other Pedagogic And 
Testing Methods Such As Those Involved In 
Clinical Training And Practice-Oriented Exam­
inations.

A study done at A ntioch16 examines the relationship 
between prelaw variables (i.e., LSAT, Writing Ability 
section of LSAT, and GPA) and law school variables 
(i.e., classroom and clinical performance during the first 
and second years of law school). The results indicate no

16 J . George, The Domino Theory supra, note 2.



24

correlation between LSAT and grades at the end of the 
second year. The study also found a significant correlation 
existed between both  clinic and class grades during the 
first year and Writing Ability scores and GPA bu t that 
there was no correlation between these variables by the 
end of the second year.17 It appears tha t the massive 
infusion of clinical pedagogy in the first and second 
year elim inated the predictive value of the LSAT. The 
study also found tha t there was chance correlation 
between the LSAT, GPA, second year grades, and 
perform ance on an old m ulti-state scored by the 
National Conference of Bar Examiners as part of the Jf
research design.18 By contrast, in other validation 
studies in the traditional law schools, the LSAT has 
correlated with second and third year grades and with 
subsequent perform ance on the m ultista te.19

Our study is strikingly mirrored by one from the 
University of California at San Diego School o f Medicine 20 
where two groups of students were com pared—those ad­
m itted  on the basis o f MCAT scores and those from 
disadvantaged backgrounds adm itted by a special 
“variance procedure.” The difference in perform ance of 
the two groups appears to have decreased rapidly with 
the onset of internships or clinical ro tations.21

--------------  #
11 Id. at 66.

18Id. at 22.

19 A review of these studies appears in Educational Testing 
Service, Interpretive Booklet LSAT/LSDAS for (1974).

20H. Sim on and J . Coveil, Performance o f  Medical Students  
A d m itted  Via Regular and Admission-Variance Routes, 50 J . MED.
ED. 237 (1975).

21 Id. The basic clerkship in surgery had to be repeated twice by 
one m em ber of the regularly adm itted group whereas all students

[footnote continued]



25

The study concludes tha t although some differences 
between the groups remained, “ The mean performance 
levels in clinical clerkships were nearly identical among 
the tw o populations; that of students granted admission 
variances was average, whereas that of their regularly 
adm itted contemporaries was slightly better than

9)22average.

A 1975 study at Temple University Medical School 
[J. Baum and C. Ireland, Minority Student Performance 
on Pathology Examinations, 67 J . NAT’L MED. ASSOC. 
334 (1975)] raises similar questions about the relation­
ship of testing methods to  determinations about com pe­
tence. The study evaluates the performances of two sec­
ond year classes (1972-1973 and 1973-1974) on two dif­
ferent kinds of pathology exam inations—an objective test 
and a practical/clinical test covering the same content. 
It was noted that,

the practical examinations consisted of 16 stations 
provided for student identification of the organ or 
tissue and diagnosis. Based upon the com plexity of 
the specimen, identification of the pathological 
process was an acceptable response in some cases.

Analyzing the differential performance of m inority class 
members on these types of examinations, the re­
searchers reported that many minority students per­
formed below the median on the objective tests, but 
perform ed well above the median on practical examina-

adm itted through variance passed the surgical clerkship on their 
first attem pt. The basic clerkship in medicine had to be repeated 
by one student in the regularly adm itted group and by two 
students adm itted by variance.

^ S im o n  and Coveil, supra, note 20 at 241.



26

tions designed and graded by the same faculty. Id. The 
authors advanced these tw o interpretations of the data:

1. It would appear tha t the form at of the 
standardized objective exam inations favors white 
students. . . .

2. The be tte r than average perform ance of black 
and o ther ethnic m inority students on the practical 
exam inations suggests that their proficiency for 
achievement in an applied situation is greater than 
that of their white contem poraries. . . . Id. at 325

Analogous, albeit anecdotal, evidence came to  light in 
a dispute at Harvard Medical School where one 0
professor attacked m inority admissions citing the 
example of a m inority student who had failed Part I of 
the National Boards five times and yet was granted his 
M.D. degree. In rejoinder, another member of the 
medical school faculty pointed out:

The student in question was granted his M.D. 
degree only after a year of highly satisfactory 
clinical perform ance on the wards of a dis­
tinguished hospital, docum ented by letters from all 
the chiefs of service under whom he served. Nor 
did Dr. Davis m ention tha t the student had passed 
Part II of the National Boards. There is nothing to 
suggest that this man will be anything but a fine 
physician. To consider tha t he might be a danger J |
to patients is ludicrous. R. Ebert, Facts A bout 
Minority Students at Harvard Medical School 294 
NEW ENGLAND J . MED., 1402-3 (June 14, 1976).

Finally, our conclusions are corroborated by a recent 
survey of all the literature on the relationship between 
undergraduate perform ance, performance in medical 
school, and subsequent perform ance as a physician.23

^3 J . Wingard and J . Williamson, Grades as Predictors o f  Physi­
cians’ Career Performance: An Evaluative Literature Review, 48 
J .  MED. ED. 311 (1973).



27

“ [A] vailable research findings have dem onstrated that 
little or no correlation exists between academic and pro­
fessional perform ance.” 24 Based on this conclusion, the 
authors suggest tha t there is a need to rethink the use of 
grades in making career decisions and urged the greater 
study o f “ perform ance” in the future.

We therefore conclude that test scores are of dubious 
predictive value for professional schools if

a. they are only predictive of performance as a 
student, no t as a professional following gradua­
tion;

b. they are only predictive of performance as a 
student operating in a traditional classroom 
setting, no t student performance in a clinical, 
applied, or practice setting;

c. they are only predictive of some, bu t not all 
o f the most crucial competencies required.

Moreover, to the extent that professional education 
involves a process of acculturation, admissions procedures 
based on the entry examinations only measure the level of 
acculturation reached by the student prior to profes­
sional school. O ther factors including personality type, 
m otivation, flexibility, self-image, staying power and 
intellectual capacity determine the rate of adjustm ent 
and the extent to which adjustment can be made within 
the time limits and academic standards imposed by the 
institution. Neither the MCAT nor the LSAT purport to 
gauge capacity for personal growth and adjustment.

A primary reason for the development of the new 
MCAT was a finding by the Association of American 
Medical Colleges that the old MCAT did not adequately

24Id. at 313.



test for relevant com petency.25 Yet Bakke’s claim 
relates to his score on the old MCAT.26

It is germane to  point out tha t the LSAT only 
purports to test two of the six basic lawyering 
competencies which Antioch has identified and defined. 
Thus, for instance, it appears to test for capacity at

legal analysis, and 
w ritten com m unications.

It does no t purport to  test for

problem  solving 
oral com m unications 
professional responsibility 
practice management.

Those competencies tend to be much more client- 
oriented, to  require interactive and negotiating skills, 
and to  dem and greater definition of role and identity  
than traditional academic courses and exam inations do. 
Clinical education places a premium on such com ­
petencies and it appears tha t students with learning 
styles tha t do not profit as readily from traditional 
classroom experiences acquire clinically the tw o com ­
petencies traditionally tested in academic exam inations:

25See ACCESS TO THE MEDICAL PROFESSION, supra, note 
15 at 29-30; See also, Cooper, The New Medical College Adm ission  
Test, 52 J . MED. ED. 77 (January 1977).

o c
Conceivably the entire difference between the numerical rank­

ing of Bakke and the other candidates could arise solely from 
differences in MCAT or undergraduate grades. An MCAT-based 
differential hardly justifies the cou rt’s characterization of “ less- 
qualified.”



29

legal analysis and written com munication, thereby 
reducing the predictive value of the LSAT to zero.

The singular im portance of problem solving was 
noted as a potentially major cause of the lack of 
correlation found between the MCAT and subsequent 
professional perform ance.27

It is prem ature to speculate further on the relation 
between test scores, cognitive styles, race, class and 
pedagogic m ethod. But one thing is clear: tests measure 
acculturation or readiness to  profit from the dom inant 
culture’s traditional instructional mode. Tests do not 
measure potential to  achieve competence, or actual 
com petence unless they have been validated against 
actual perform ance in practice settings. No such 
validation studies have been conducted in law; those in 
medicine have found no correlation. Whatever limited 
assumptions can be made about the predictive value of 
test scores for members of the majority culture cannot 
be autom atically converted into statem ents about 
potential com petence of m inority members. At best, 
they can be said to  be statem ents about the degree of 
acculturation achieved by minority members. Ad­
m ittedly, this may be a critical indicator of chances of 
survival. It may not be, however, for it can just as 
readily be a measure of an impaired sense of identity.

The critical factor for survival may no t be accultur­
ation; it may be m otivation. And there is some evidence 
th a t personality-type correlates directly w ith the chances 
o f a ttrition , though not w ith grades. A study conducted 
in 1965 for the Law School Admission Council established 
a personality test tha t placed subjects on a continuum  ex­
tending from scientific-analytic to  sensuous-artistic.28 The

27Supra, Grades as Predictors, note 23 at 313-314.

2  ̂P. VanR. M etter, Personality Differences and Student Sur­
vival in Law School, reprinted in LAW SCHOOL ADMISSION 
COUNCIL, 1 REPORTS OF LSAC SPONSORED RESEARCH 
299-310 (1976).



30

study noted that there was no correlation betw een per­
sonality type and test score bu t there was a marked corre­
lation betw een personality type and attrition  rate. The 
artistic-sensuous type was far more likely to drop out of 
law school than the scientific-analytic engineer type, bu t 
bo th  types had equally good chances of scoring high on 
the LSAT. At the very least, issues of m otivation, m atur­
ity, staying power, and sense o f responsibility have an 
im pact on professional com petence—if professional com ­
petence includes professional responsibility, practice m an­
agement and problem  solving competencies.

Accordingly, we subm it tha t race, like other factors 
cited by the court as pertinent in interpreting test 
scores—socio-economic background, educational oppor­
tunities, e tc .—is a factor bearing directly upon the 
in terpretation of test scores, grades and other evidence. 
To insist that the admission process must rely 
exclusively upon racially neutral criteria and must 
exclude consideration of race in the in terpretation of 
data is in fact to  require discrimination on account of 
race.

f



31

II.

THE COURT BELOW ERRED IN PROHIBITING CON 
SIDERATION OF AN APPLICANT’S RACE IN INTER 
PRETING EVIDENCE BEARING UPON THE POTENTIAL 
CONTRIBUTION AN APPLICANT WILL MAKE TO 
FURTHERING THE PROFESSION’S COMMITMENT TO 
EQUAL JUSTICE UNDER LAW, TO IMPROVING THE 
CAPACITY OF THE LEGAL SYSTEM TO RESPOND TO 
THE GRIEVANCES OF DISENFRANCHISED PERSONS 
AND GROUPS, AND IN REQUIRING THE ADOPTION 
OF ONLY “ NONRACIAL ALTERNATIVES” IN EF­
FORTS AIMED AT REMEDYING THE DEARTH OF 
PROFESSIONALS SERVING MINORITY COMMUNITIES.

The court below concluded that reliance upon the 
race of an applicant in making a determ ination of 
future contributions was constitutionally repugnant, 
even though it conceded “ that it is more likely that 
they [m inority doctors] will practice in m inority com ­
munities than the average white doctor.” 29 The court 
reasoned that

there are more precise and reliable ways to identify 
applicants who are genuinely interested in the med­
ical problems o f minorities than by race.

An applicant of whatever race who has dem on­
strated his concern for disadvantaged minorities in 
the past and who declares tha t practice in such a 
com m unity is his primary professional goal would 
be more likely to contribute to alleviation of the 
medical shortage than one who is chosen entirely 
on the basis o f  race and disadvantage. In short, there 
is no empirical data to  dem onstrate that any one 
race is more selflessly socially oriented or by con-

29 553 P.2d at 1167.



32

trast tha t another is more selfishly acquisitive.30 (em­
phasis added).

We take issue bo th  with the factual assertion—that 
there are no empirical data—and with the legal pro­
scription the court placed on the use of race as a 
fact of evidentiary value in predicting probable 
contribution of a candidate to serve m inority com ­
munities.

Law schools have no t followed the admissions 
procedure suggested by the court below: inquiring of 
applicants of all races w hether they would be willing to 
make a com m itm ent to  serve disenfranchised and m inor­
ity  com munities. One of the most staunch defenders 
of affirmative action programs has defended the refusal 
to make this individual inquiry on grounds tha t it 
would prove prohibitively expensive, politically un­
palatable, and administratively unfeasible.31 To our 
knowledge, no law school, except A ntioch, explicitly 
elevates the normative obligations of the profession to 
the status of an essential admissions criterion applicable 
to  all applicants. A ntioch regards this decision no t as a 
m atter of choice or policy bu t as a m atter o f fundam ental 
obligation stemming from the canons, case law and the 
Constitution itself. ^

3* See Askin, Eliminating Racial Inequality in a Racist World, 
2 CIV. LIB. REV. 96 (1975).

3^C anons 2 and 8 of the ABA CODE OF PROFESSIONAL 
RESPONSIBILITY together with the accompanying Ethical 
Consideration, elucidate these obligations. The right of access to 
the legal system for redress of grievances as derivative from the 
first am endm ent is well established. See NAACP v. B u tto n , 371 
U.S. 415 (1963) and its progeny: Brotherhood o f  Railroad
Trainmen v. Virginia ex rel. Virginia State Bar, 2>11 U.S. 1

[footnote continued]



33

Most o f the empirical data only support the co u rt’s 
general observation that m inority professionals are more 
likely to follow career lines serving m inority com m un­
ities than white professionals.33

(1964); United Mine Workers v. Illinois State Bar, 377 U.S. 217 
(1967); United Transportation Union v. Michigan, 401 U.S. 576 
(19 71); (all held activity undertaken to obtain meaningful access 
to the courts is a fundam ental right within the protection of the 
first am endm ent). Cf. The 1974 Legal Services Corporation Act, 
42 U.S.C. Section 2990 (1974). A lawyer has a duty to  assure 
that legal services are made available to  all persons regardless of 
rape or income level, and to assure that all persons are treated 
equally in any court of law or during any legal proceeding. To 
the extent that these obligations apply to all attorneys, law 
schools may be obligated to  incorporate criteria requiring a 
showing of normative qualificiations as well as intellectual 
qualifications respecting the capacity of an applicant to  discharge 
the full range of professional duties and obligations. Now that 
the American Bar Association has amended its accreditation 
standards to make instruction in legal ethics and the responsibil­
ities of the profession required for all law students, a 
determ ination in the admissions process of intellectual capacity 
can no longer be considered entirely severable from a 
determ ination respecting normative capacity.

33 A 1974 study shows that of the 2,860 attorneys in legal 
service programs, 15% of them  were minorities at a time when 
approxim ately 2% of the profession were m inority attorneys, and 
at a time when approxim ately 6% of the law student population 
was minorities. (Figures provided by the Legal Services Corpora­
tion). At Rutgers Law School, Askin reports that “ of the black 
and hispanic law graduates turned out by June  1973, most went 
into public service jobs; thirteen went to work for various OEO 
neighborhood legal services programs; eleven obtained jobs with 
state or municipal government agencies; seven went to work for 
various federal agencies, including three with the Equal 
Em ploym ent Opportunities Commission; two joined the staffs of 
Public Defenders; five served judicial clerkships; two joined the 
staffs of elected public officials; two were hired as judicial adm in­
istrators. One was recently appointed a judge!” Askin, supra, note 
31 at 100.



The National Bar Association, A SURVEY OF ECON­
OMICS AND OFFICE PRACTICES OF THE BLACK 
LAWYER (1971) produced the following conclusions:

1. The preponderance of Black attorneys reported 
a general practice with special emphasis on “people 
w ork’’ rather than commercial or business work.
Id. at 1-13;
2. Com m unity and leadership activities are central 
to  the Black law yer’s work and the econom ic 
lifeline of the Black bar as a whole has been 
related to the ability of the Bar to be part of the 
commercial, institutional and governmental activity 
of the Black com m unity. The Black lawyer spends 
a greater proportion of his time in public activity 
than  his White counterpart, and generally in areas 
needed by the Black com m unity. Id. at 1-14.

Such statistics as there are support the Supreme Court 
of California’s intuitive perception that m inority 
lawyers tend to have a deep-seated com m itm ent to  civil 
rights and to  serving m inority communities. See Note, 
The Negro Lawyer in Virginia: A Survey, 51 VA. L. 
REV. 512 (1965).

The national picture, assembled by the National 
Association for Law Placement from data from 
eighty-two law schools, reveals that about 18% of em­
ployed m inority law graduates were engaged in public 
interest practice or indigent legal services as contrasted 
w ith less than 5% of white law school graduates en­
gaged in the same categories of em ploym ent. National 
Association for Law Placement, Em ploym ent Report on 
Law School G raduation Class o f 1975 (1976) (mimeo­
graph on file in Placement Office, A ntioch School of 
Law).

A ntioch’s data draws uniquely upon a sample where 
all applicants are asked about their career expectations 
and where the School explicitly commits itself to



35

turning out graduates who will serve the public interest 
with particular emphasis on representing the disen­
franchised and underrepresented segments of the 
com m unity. Over 50% of the m inority members of the 
graduating classes of 1975 and 1976 are engaged in 
em ploym ent providing some form of representation and 
enfranchisement to m inority interests; only about 30% 
of the white graduates from those classes are engaged in 
providing representation to m inority communities, 
though a substantially higher percentage are engaged in 
some form of public interest em ployment.

We do not assert that every m inority applicant can 
be assumed autom atically to be com m itted to serving 
m inority communities. And to the extent that all 
applicants to  A ntioch are aware that an affirmative 
com m itm ent may assist them  in securing admission, it 
became essential to look to dem onstrated com m itm ent 
evidenced by some tangible or specific action. Racial 
identity  is simply one piece of relevant evidence. It is 
no t dispositive, b u t it should not be excluded from 
consideration. Some minority applicants evidence a 
seemingly to tal lack of awareness of the problems that 
beset the ethnic groups from which they come; others 
give indications of a desire to distance themselves from 
those origins; still others are clearly opportunistic. We 
believe these observations bear upon potential contri­
bution, just as we believe it appropriate to take 
cognizance of the empirical evidence that membership 
in a minority group lends increased credence to 
statem ents of intention and com mitment to serve 
minority communities.

The only data analogous to  A ntioch’s experience comes 
from the Reginald Heber Smith Fellowship program, 
funded by the Legal Services Corporation to recruit law 
school graduates to begin their careers in legal services 
programs. 34 They report tha t approxim ately 40% of the

34 As a part of tha t program, applicants are asked if they will 
make a long-term com m itm ent to  serve poor and minority com ­
munities. This is the kind of question the court below proposed.



36

applications received come from m inority law graduates 
who comprise less than  7% o f the law school population. 
Approxim ately 73.5% of all Smith fellows remain in 
poverty law following the end o f their two-year 
fellowship, bu t there is no breakdow n of the relative 
percentage of m inority and white fellows who stay in 
the field of services to poor and m inority communities.

A ntioch’s data and the Smith Fellowship program ’s 
data certainly tend  to indicate tha t ethnic iden tity  is at 
least a relevant predictor of career patterns and possibly 
a more accurate predictor than the stated objectives of 
an applicant.

We concur in the cou rt’s rejection of the view that 
“ any one race is more selfishly socially oriented or by 
contrast that another is more selfishly acquisitive.” 35 
The reason for taking the race of the applicant into 
consideration is rather self evident. In this society, race 
is a fact of life. It cannot be shed voluntarily. 
Participation for m inority professionals in the affairs of 
the m inority com m unity is no t necessarily voluntary. 
As frequently as not, such representational roles are 
thrust upon m inority professionals because of the 
affirmative action requirem ents that oblige govern­
m ental agencies to “ conscript” m inority professionals, 
because of the prevailing need for token m inority 
representation on advisory and governmental bodies, 
because of the vulnerability (both legal and moral) to 
which bo th  the public and private sector may be prone 
if there is no t adequate m inority involvement. One

35 553 P.2d at 1167.



37

cannot divest oneself of racial identity or vulnerability 
to injustice based upon race merely by wishing to do 
so.

The recent confirm ation hearings on the nom ination 
of Patricia Roberts Harris to  be Secretary of the 
D epartm ent of Housing and Urban Development are 
particularly instructive in this regard. Patricia Harris 
graduated from a predom inantly white law school, 
George Washington; she served as Ambassador to 
Luxembourg, hardly a third world nation; the law firm 
of which she was a partner can hardly be characterized 
as specializing in poverty law or even in civil rights, 
irrespective of the considerable pro bono work done by 
individual members; her prominence in national Demo­
cratic politics was not primarily associated with the 
issues of poverty or race. A t the same time, A ttorney 
Harris did not lack other credentials—as former Dean of 
Howard Law School, as a member of the Board of 
NAACP Legal Defense Fund, as legislative chairperson 
of the National Council of Negro Women. Whether 
voluntarily or not, Patricia Roberts Harris was selected 
to head a cabinet departm ent that dealt with the 
problems of cities, and she chose to characterize that 
stewardship as a special com m itm ent to  deal with the 
problems of m inority communities. Whatever her own 
interests, class allegiances, or career preferences, her 
statem ent of com m itm ent and her projection ol herself 
as a spokesperson for m inority concerns was accepted 
by the Senate of the United States:

You do not seem to understand who I am. I ’m a 
black woman, the daughter of a dining car waiter. 
I ’m a black woman who even 8 years ago could 
not buy a house in some parts ot the District ol 
Columbia. Senator, to say I ’m not by and of and 
for the people is to show a lack ot understanding



of who I am and where I came from. . . . You 
spoke of the unrepresented and the poor and I 
said I ’m one of them . . . .  I have been a defender 
of women, of m inorities, of those who are the 
outcasts of this society, and throughout my life, 
and if my life has any meaning at all it is that 
those who start as outcasts may end up being part 
of the system, and I hope it will mean one other 
thing, Senator, tha t by being part of the system 
one does no t forget w hat it meant to  be outside it.
Nomination o f  Patricia Roberts Harris, Hearing 
before the S. Comm, on Banking, Housing and. 
Urban A f f ,  95th  Cong., 1st Sess., 41 (1977)

Racial identity  is no t something tha t m inority persons 
are perm itted  to  shed in this country. The Equal 
Protection Clause cannot require graduate schools to 
ignore tha t reality, for to do so would be to require 
them  to engage in racial discrimination by ignoring or 
denying the relevance of evidence favorable to the 
admission of m inority applicants.

We regard the im position of the requirem ent as 
reversible error.

In the alternative, we ask tha t any decision in this 
case be expressly lim ited to medical schools.

This case does not perm it separate consideration 
of the distinctive status of the legal profession as 
Officers of the Court. Moreover, while a dearth of 
m inority medical students will mean a dearth of 
m inority doctors, the same lack of m inority law 
students will mean no t only a shortage of minority 
lawyers bu t a corresponding im pact on the racial mix of 
public and private leaders that De Tocqueville noted the 
profession had supplied since the birth of the Republic. 
M inority underrepresentation in decision-making roles 
will be alleviated only by continued integration within 
law schools.



39

Accordingly, we ask that if this case is decided on 
principles that preclude all consideration of a 
candidate’s race, tha t the decision be limited to the 
facts of this case and that any decision respecting the 
application of such principles to law schools be 
expressly reserved for a later case where the record will 
perm it fuller consideration of the distinctive status and 
obligations of the legal profession.

CONCLUSION

We urge tha t the Court reverse and remand to  the trial 
court to  determ ine w hether the facts will sustain a find­
ing tha t race was utilized in a constitutionally permissible 
fashion for evidentiary and interpretive purposes to  secure 
the uniform  application o f uniform  admissions criteria.

Respectfully subm itted,

Ed g a r  S. C ahn  
J ea n  C a m per  C ahn  
R o b er t  S. C a tz  

ANTIOCH SCHOOL OF LAW
Tune 7 1977 1624 Crescent Place, N.W.
J ’ Washington, D.C. 20009

(202) 265-9500
Counsel fo r  Amicus Curiae.

Counsel are indebted to:

C la u d ia  R ib e t , J.D . Antioch 
School of Law 1977, and

G r e g g  H. M a th ew s , candidate 
for the J.D . degree, Antioch 
School of Law, 1978.



APPENDIX



la

APPENDIX A



■Stniirnt- Nnmp 

D a te  _____

CL IN IC AL EVALUATION SUMMARY FORM
S u p e r v i s o r

Division/Sect Ion

COMPETENCY RATING

COMPETENCIES & DEFINITION’S RATING _____________ COMMENTS_________________
ORAL-

The ability to assess, conctol, ând vary verbal 
and non-verbal communications with an audience!s, 
in a given situation to maximize the accomplish­
ment of objectives.

WRITTEN

The ability to control and vary written communi­
cations with an audience(s) in a given situation 
to maximize the accomplishment of objectives.

LEGAL ANALYSIS

The ability to combine law and facts in a given 
situation to generate, justify, and assess the 
relative merits of alternative legal positions.

PROBLEM SOLVING

The ability to use legal analysis and other 
information to identify and diagnosis problems 
in terms of client objectives and to generate 
strategies to achieve those objectives.

PROFESSIONAL RESPONSIBILITY
The ability to recognize the ethical considera­
tions in a situation, analyze and evaluate their 
implications for present and future actions, 
and behave in a manner that facilitates timely 
assertion of rights.

/



PRACTICE MANAGEMENT

The ability to manage time, effort, availabl e
resources, and competing priorities in a 
nunner which generates the maximum output of
quality legal services.

’‘INSTRUCTIONS: Rate student on o:ch applicable general competency
using a number from the Competent. y Scale provided here:
1= Serious deficiency 3= Margin 1 deficiency 5= Competency
2~ Deficiency 4= Minimi 1 competency 6 = Superior Competency

TASK SUMMARY 
Simple Average Complex

RECOMMENDATIONS

Tasks

^'INSTRUCTIONS: Identify tasks and write the number of times tasks
have been of a simple, average, or complex nature.

C7) An t-; ■v,ol of T nw/Antioch College 1977



Student Name ..
filY.igi9Til. *9*ion

CO
MP

ET
EN

CI
ES

SU
BD

IV
IS

IO
NS

SPECIFIC COMPETENCIES
(Ability tot) ,ASKS

■

COMPLEXITY

OR
AL

use the mechanics of language

express a thought with clarity and economy

speak appropriately to a given audience
communicate so as to advance immediate

identify and use appropriate non-verbal

perceive others' communications and actions

a
e
s

express a thought with clarity and economy

express thoughts in an organized manner

write appropriately to a given audience
write so as to advance the immediate

l

identify relevant facts
J '

-----------------------------— — ----------
identify inconsistencies among facts

------------------------------— -----------------
identify the reliability of asserted facts

distinguish facts from conclusions of law
[ determine rules of law relevant to framing

E

n
i determine trends in interpretation

!  r

l i

1

group and categorize facts in terms of
•elect aspects of the facts which appear to call
select aspects of a legal rule or concept which

1 show why legal rule or concept calls for extension,
5 separate, combine,, and sequence arguments and ~

i !
1

identify predisposition of a particular
identify compelling equities re' ̂ j^^ped by 4 *■f determine relative effectivene, 'Alternative

and, v. _ .i&akism________



jf
f l
a l
Is
a . o

si55T"
H

J i

identify client objectives and priorities
identify obstacles and facilitating factors that 
bear on realization of objectives and priorities
state alternative definitions of client’s 
problem(s)
identify and develop information and steps needed 
to clarify alternative definitions of problem(s)
make a tentative choice among alternative

develop a range of solutions and strategies

f"utLSd °tdet the r“8e °£
reach informed consent with client on 
prefered solutions and strategies
prepare a work plan^
take the actions (or assure that assigned 
others do) to carry out the work plan
check results at determined steps 
and adjust as necessary
identify and analyze ethical problems
determine available courses of action
evaluate available courses of action based on cli­
ent interest, self-interest, & social interest
act consistently with ethical decisions
allocate, time, effort, and other resources 
necessary to carrv out case load tasks
coordinate efforts with others

according to applicable systems, rules, and 
procedures governing handling of cases & files
assess and design improvements in system, rules, 
& procedures governing handling of cases & fiLes
maintain a level of productivity that conforms
judge the point at wliich further commitments 
r.mnt be realistically be discharged competently
supervise others

♦INSTRUCTIONS: At the top of the column identify each task you evaluate in the order it occurs, (Refer to Catalog of Illus­
trative Tasks for examples of tasks.) Enter next in the column 
the complexity of the task based on 1-simple, 2-average, and 
3-qomplex. Go down the column for each task and enter a rating 
after each Specific Competency you consider involved in this 
task using the six point Task/Competency Scale shown here. Leave 
a blank for any Specific Competency that is not applicable or 
not observed.

TASK/COMPETENCY SCALE
1= Serious deficiency: could not be trusted with client(s) or 

to perform task(s).
2= Deficiency: required continous supervision.
3= Marginal deficiency: did some work with minimal supervision, 

but could cause problems if not carefully supervised.
4= Minimal competency: usually performed task(s) satisfactorily 

with some supervision.
5= Competency: performed task(s) satisfactorily with virtually 

no supervision (except for final review).
6= Superior competency, performed task(s) in outstanding manner 

with virtually no supervision (except for final review).

©  Antioch School of L*w/Antioch College 1977



CATALOG OF DEFINITIONS 
OF COMPETENCIES

I. ORAL COMPETENCY

General Definition — The ability to assess, control, and 
vary verbal and non-verbal com m unications with an 
audience(s) in a given situation to  maximize the 
accomplishm ent o f objectives.

Specific Competencies:
1. Ability to use the mechanics of language, 

e.g., grammar, syntax, citation, articulation.
2. Ability to  express a thought with clarity and 

econom y.
3. Ability to  express thoughts in an organized 

manner.
4. Ability to speak appropriately to a given 

audience.
5. A bility to com m unicate so as to  advance 

im mediate and long-term objectives.
6. Ability to identify and use appropriate 

non-verbal aspects of com munications, e.g., 
appearance, poise, gestures, facial expres­
sions, posture, and use of spatial relation­
ships.

7. Ability to perceive o thers’ com munication 
and actions (verbal and non-verbal).

* * * *

II. WRITTEN COMPETENCY

General Definition -  The ability to control and vary 
w ritten com m unications w ith an audience(s) in a given

©  A ntioch School of Law /A ntioch College 1977



7a

situation to maximize the accomplishment of objectives. 
Specific Competencies:

1. Ability to use the mechanics of the
language, e.g., grammar, spelling, punctua­
tion.

2. Ability to express a thought with clarity and 
economy.

3. Ability to express thoughts in an organized 
manner.

4. Ability to write appropriately to a given 
audience, e.g., tone, form at, citation form.

5. Ability to write so as to advance the
immediate and long-term objectives.

* * * *

III. LEGAL ANALYSIS COMPETENCY

General Definition — The ability to  combine law and 
facts in a given situation to generate, justify, and assess 
the relative merits of alternative legal positions.

Analyzing Facts and Identifying Relevant Law — 
Given a fact situation and knowledge of rules of 
law, ability to identify relationships between facts 
and law in a way that will facilitate the
form ulation of alternative legal theories.

Specific Competencies:
(Analysis of Facts)
1. Ability to identify relevant facts.
2. Ability to identify inconsistencies among 

facts.
3. Ability to identify the reliability of 

asserted facts.
4. Ability to distinguish facts from con­

clusions of law.



8a

(Identification of Relevant Law)
5. Ability to  determ ine rules of law relevant 

to  framing legal issues, e.g., statutes, 
regulations, case law, court rules, 
secondary authorities.

6. Ability to  identify discrete legal issues.
7. A bility to  determ ine trends in in terpreta­

tion  or application of laws.
Formulating Legal Theories — Given fact analysis, 
the law, and the resulting identification of legal 
issues, the ability to  identify and organize 
arguments and counter-arguments in terms of 
claims, defenses, or o ther legal results.

Specific Competencies:
1. Ability to group and categorize facts in 

terms of the concepts or language of the 
law.

2. Ability to select aspects of the facts 
which appear to  call for the application 
of a legal rule or concept.

3. Ability to select aspects of a legal rule or 
concept which appear to call for its 
application to  the facts.

4. Ability to  show why some aspects of a 
legal rule or concept calls for an 
extension, lim itation, or rejection of 
another rule or concept.

5. Ability to separate, combine, and 
s e q u e n c e  arguments and counter­
arguments to form ulate a legal theory.

Evaluating Legal Theories — Given alternative legal 
theories, the ability to  predict the decision of an 
authoritative source.



9a

Specific Competencies:
1. Ability to identify predisposition of a 

particular decision-maker, e.g., character­
istics of the decision-maker, workings of 
the decision-maker’s institution, patterns 
of previous decisions, reasons given for 
previous decisions.

2. Ability to identify compelling equities, 
recognized by the law or inherent in the 
fact situation.

3. Ability to  determine relative effectiveness 
of alternative legal theories by analysis 
and evaluation of 1 and 2 (above).

* =t= * *

IV. PROBLEM SOLVING COMPETENCY

General Definition — The ability to use legal analysis 
and other inform ation to  identify and diagnose 
problems in terms of client objectives and to generate 
strategies to  achieve those objectives.

Identifying and Diagnosing Problems — Given a 
situation, ability to  isolate the problem and to 
identify, generate, and organize inform ation in a 
way that will facilitate the form ulation of 
alternative solutions.

Specific Competencies:
1. Ability to  identify client objectives and 

priorities.
2. Ability to identify obstacles and facilita­

ting factors that bear on the realization 
of client objectives and priorities.

3. Ability to state alternative definitions of 
client’s problem(s).



4. Ability to  identify and develop inform a­
tion and steps needed to clarify alterna­
tive definitions of the problem (s).

5. Ability to make a tentative choice among 
alternative definitions of the problem(s).

Developing, Evaluating, and Selecting Alternative 
Solutions and Strategies — Given diagnosis of a 
problem , the ability to  develop and evaluate 
alternative courses o f action designed to advance 
some or all of the client objectives and make a 
justifiable selection.

Specific Competencies:
1. Ability to  develop a range of solutions 

and strategies which include consideration 
of types of strategy, risk, legal and social 
consequences, party  control, forums, cost, 
and ethics.

2. Ability to  assess and order the range of 
alternative solutions with respect to 
client’s objectives and priorities, proba­
bility of success, consequences of partial 
success or failure, available resources, and 
ethics.

3. Ability to  reach inform ed consent with 
client on prefered solutions and strategies.

Implementing Strategies — Given selection of 
solutions and strategies, the ability to im plem ent 
and m odify those strategies by taking action and 
evaluating results in light of objectives and other 
criteria.

Specific Competencies:
1. Ability to  prepare a work plan that 

identifies who will do w hat, with whom, 
where, when, and with what expected 
results.



11a

2. Ability to take the actions (or insure that 
assigned others do) to carry our the work 
plan.

3. Ability to check results at determ ined 
steps and adjust as necessary.

* * * *

V. PROFESSIONAL RESPONSIBILITY COMPETENCY

General Definition — The ability to recognize the 
ethical considerations in a situation, analyze and 
evaluate their implications for present and future 
actions, and behave in a manner that facilitates timely 
assertion of rights.

Specific Competencies:
1. Ability to identify and analyze ethical 

problems.
2. Ability to determine available courses of 

action.
3. Within the context of the Code, the ability 

to  evaluate available courses of action based 
on client interest, self-interest, and social 
interest.

4. Ability to act consistently with ehtical 
decisions and com mitments.

* * * *

VI. PRACTICE MANAGEMENT COMPETENCY

General Definition — The ability to manage time, 
effort, available resources, and competing priorities in a



manner which generates the m aximum outpu t of 
quality legal services.

Specific Competencies:
1. Ability to allocate time, effort, and other 

resources necessary to carry out case load 
tasks.

2. Ability to  coordinate efforts with others.
3. Ability to work according to applicable 

systems, rules, and procedures governing the 
handling of cases and files.

4. Ability to assess system operations and 
design improvements in the system, rules, 
and procedures governing the handling of 
cases and files.

5. Ability to maintain a level of productivity 
tha t conforms with applicable standards and 
expectations.

6. Ability to  judge the point at which further 
com m itm ents cannot realistically be dis­
charged com petently.

7. Ability to supervise others.



13a

APPENDIX B



ANTIOCH SCHOOL OF LAW ADMISSIONS MATRIX

03.977, ANTIOCH SCHOOL OF LAW

A p p l i c a n t :  ____________________________ _________

E v a l u a t o r :  D a te :

C i r c l e  One: 

Age;

U n d e r g ra d u a te

G ra d u a te

F i n a n c i a l  S t a t u s : ( b a s e d  on p a r e n t * '  o c c u p a t i o n  and t h e  " l i v e - i n "  re s p o n s e  
f o r  an i n d i c a t i o n  o f  a p p l i c a n t ' s  p r e - u n d e r g r a d  y e a r s ;  and based 
on a p p l i c a n t ' s  o c c u p a t i o n  and t h e " l i v e - i n "  r e s p o n s e  f o r  an  i n d i c a ­
t i o n  o f  t h e  a p p l i c a n t ' s  p r e s e n t  p o s i t i o n )

U UM M LM L ( P r e - u n d e r g r a d )  

U UM M LM L ( P r e s e n t )

None o r Some o r Below Above
Numerical  
Maximum or

Unacceptable
1

Least Acceptab le
| .........................

Norm
. 1 _ .

Norm Norm
i  i

P r e fe r a b le  Idea l  
| |

1
1

f
2

. I 
3

1 1 
4 5

l . |

< i

l .  COMPETENCY POTENTIAL 

A. T r a d i t i o n * !  Measures

1. S c h o la s t i c  and Tes t  Performance

eLSAT: ____ /  ____ / ___ _ ____ / ____  LSAT Average:  ____ / ____

{O ver ­
a l l

283 o r  
Below 284-371 372-483 484-584 585-670 671-756 757 '

Sca le)
0 ) (2) (3) (4) (5 ) ( * ) (7)

(M ln o r1 ty  
Sca le ) 2*1 o r  

Below
242-323 324-405 406-501 502-609 610-717 718 o r  

Above

Co llege Mean { -  or +30 p t s .  ■ norm) _____  ASL score _____ (Co lle ge score + ASL s c o r e jx  1/2 ■ a

ASL m i n o r i t y  score  __ □

e 6.. P .A . : ____ 1 2 3 4* 5 6 7

1
1.9 o r  
Below

1 I
2 .0  2*. 5 J ,  J ,

1
3.7 J ,

s
2 .4  2.8 3 .3  3.6 3 .9

9

14a



ASL Norm s c o re :C o llage  Mean 4 Above; x 1/2 •
score + ASL score )

a S c h o la s t i c  Achievement (add 1 f o r  each ):

3 .5  cum ♦  ___________
Deans 11 s t
Graduation  w /h o n o rs , e t c .  '
Honor S o c ie ty  _______
S ch o la rs h ip  _______
O ther :  ( I d e n t i f y )

S c h o la s t i c  Ach. T o t a l : □

T o t a l : Sec. A1 :

2.  Be hav io ra l Elements ( Th is  p e r t a i n s ,  to  the t ime frame o f  up 
to  and In c lu d in g  undergradu ate y e a r s ,  whether  dona 1n an un­
i n t e r r u p t e d  sequence o r  ex tended ,  e . g . ,  stopped to  w o rk ,  then 
r e tu r n e d ,  e t c .  Please i d e n t i f y  persuas iv e  f a c t e r ( s ) ) .

a. E x t r a c u r r l c u l a r s  a n d /o r  work . _____ x 1 .5  -  ______

b. Range o f  l i f e  exp e r ie n ce . ■ x 1 .5  « _____

c .  A b i l i t y  to  deal  w i th  u n s t r u c tu r e d ,  u n c e r t a i n ,  
ambiguous ASL-type e nv ir onm ent . ____  x 1 ,5  •  _____

d .  E f f o r t  expended, e . g .  com b in a t io n  o f  LSAT, GPA, 
and performance. .____ x 1 .5 •  ______

e .  Undergraduate r e c o r d ;  e r r a t i c  o r  c o n s i s t e n t .
I r r e l e v a n t  o r  s o f t  m a jo r ,  ( e . g . ,  f i n e  a r t s ,  e t c . )  
v.  d i s c i p l i n e d  o r  s t ro n g  m a jo r ;  c o n s i s t e n t l y  
poor per formance 1n a n a l y t i c  c o u rs e s ,  e . g . ,  math.
b i o l o g y ,  e t c . ;  vary  low c la s s  rank o r  p e r c e n t i l e  
ra n k in g ;  l a rg e  number o f  courses  not  in c lu d e d  In  
SPA. (Please  note  p e rsuas iv e  f a c t o r ( s ) ) .

f .  Worked a-number o f  hours per  week f o r  1 /2  semesters 
in  und erg rad .  (15 1s norm, 37 1s max. )

T o t a l ; Sec. A2:

3. M odera t in g  Elements ( r e l a t e d  to  background, growth in  underg raduate  
o r  gradua te exp e r ie n ce .  Please note  w h ic h . )  ,

E d u c . t l o n . U y  d i f f e r e n t  o r  d c p r l v « d |  u n d a ra c h la v a r .
(idd 1) -----

b.  B t H n g u i l  (add O  _ _ _ _ _

c .  L e t t  b l o o n t r  ( I n  undargrad o r  g r i d  Marked tmprovo- 
ne n t from y t . r  to  y . i r  by > t  l e a s t  •> GbA I n c r c . i o
from l i t  t o  p r d i d n t  » « » . s t « n , |  ( i d d  1) .............

d. It.Mediation (prior to antry or during undargrad!
CttO) (add 1) ----- -

15a



• .  Iona f i d *  LSAT low t e s t e r  (upper  25 th  p e r c e n t i l e  
o f  «radua t1ng  d m ,  b u t  LSAT f a l l *  below c o l la g e  
mean; han dicap  Impede* o p t im a l p e r fo rm a n c e ) .
(add 1) -----------

f .  H a t u r 1 t y / p * r s 1 s t * n c *  (av ld anca  o f  hav in g  overcome 
a d v e r s i t y  - -  s u r v i v a l ;  * . § . ,  f i r s t  f a m i l y  member 
t o  ra c a lv a  BA, s u p p o r t in g  f a m i l y  member, ph y s ic a l  
han d ic ap ,  a t e . )  (add 1) __ _____

Tota l. -  Sac. A3:
I .  No n»t rad1t1ona l Measures ( w i t h  an aya toward c l i n i c a l  per fo rm ance)

1 .  Essa ys,  persona l s ta te m e n t ,  (C on ten t  A c o n s t r u c t i o n :  
a n a l y s i s ,  o r g a n i s a t i o n ,  s y n ta x ,  s t y l e ,  c r e a t i v i t y  
i  t o n e .  P le as*  n o t *  p e rs u a s lv *  f a c t o r ( s ) ) .  _______

2 .  A*cowmendat1on(s) (n o te w o r th y  recommendation from 
in fo rmed recommender whose judgment 1s te s te d  or  
saems t r u e )

3. Graduate school (Note substance:  d i f f i c u l t y  o f  a re a :  
amount a n d /o r  q u a l i t y  o f  w o rk ;  r e p u t a t i o n  o f  s choo l)

4.  Work (work 1n la w - r e la t e d  araa o r  1n a jo b  1nyolv1ng 
a l o t  o f  r e s p o n s i b i l i t y  o r  a c a d e m l c / l n t e l l e c t u a l  
f a c e ts )

T o ta l  : Sec. B:
C. Supplemental Evidence (Note 1 f  p e r t i n e n t . )

1.  I n te r v i e w  _______

2 .  Work Product  _______•

3. O th e r :  _______

D. Sp ec ia l Problems (Receives  no r a t i n g  but  must be n o te d . )

1.  Law school f a i l u r e  ______

2.  C r im in a l  c o n v i c t i o n  _______

3.  O ther :  .

Max. P o in ts

(G * those a p p l i c a n t s  who have g ra d u a te d ;  U * those who are p r e s e n t l y  
underg raduate s)

JL u
116 ( fo T )  Idea l

34 (72)  ,nd  above P re fe re b le

70 (60) -  33 (71)  Above Hone 

48) -  69 (59)  Horn 

|w 56 (48) Below Nona

P o in ts  Earned

16a



P o s it i v e

,11 . CONTRIBUTION POTENTIAL

A. Long-Term P r o b a b i l i t y  o f  D e d ic a t io n  to Equal 
J u s t i c e

t Papers,  s t u d i e s ,  academic focus  In c o l le g e  
a nd /o r  gradua te school

* P u b l ic  s e r v i c e  employment:
Legal S e rv ic e s ,  Pu b l ic  Defender 
Educat ion
Government

* E x t r a c u r r i c u l a r  a c t i v i t i e s

’ Extended p o s t - c o l l e g e  c a re e r

* S p e c i f i c ,  c o n s t r u c t i v e  c a re e r  goa ls

’ Demonstrated s e n s i t i v i t y ,  m a t u r i t y ,  humanity 

1 . Negative  Elements 

a . Im m a tu r i t y  

b„ Egotism

c.  Personal I n s e c u r i t y

d .  Lack o f  evidenced concern 

t .  Lack o f  s t a y in g  power

2, C o u n te ra c t in g  Fac tors

a, you th

b. L im i te d  o p p o r t u n l t l a *

Chec_klJ s_t

Negative Comments



r?!iv*f turn.a tMH’H
t .  En franch is ement  C o n t r i b u t i o n

Membership 1n d ls e n f r a n c h ls e d  g roup ;  ra c e ,  
n a t i o n a l i t y ,  language,  sex ,  age , g e o g ra p h i ­
c a l l y  de pressed,  c l a s s .

* N e g a t iv e s :  Evidence o f  d l s a s s o d a t l o n ,  
d i s i n t e r e s t ,  I n s e n s i t i v i t y ,  s h e l te r e d

* V o lu n ta ry  commitment to  r e p r e s e n t a t i o n  o f  
d is e n f r a n c h is e d

- work record
-  c a re e r  goa ls  
•  a p p l i c a t i o n
-  e x t r a c u r r l c u l a r s  (women's r i g h t s ,  e t c . )

Q u a l i t y  o r  s i g n i f i c a n c e  o f  commitment: 
m a t u r i t y ,  s o p h i s t i c a t i o n ,  sense o f  r e s p o n s i ­
b i l i t y ,  f a m i l y  background,  " r o o t s " ,  r e fe re n c e s ,  
p e r c e p t ! veness o f  I n j u s t i c e  answer

Work p roducts

Graduate o r  i n t e r d i s c i p l i n a r y  work produc t  
a l re a d y  u t i l i z e d  ( w i t h  demonstrated  a p p l i c a ­
t i o n )

C. Supplemental Evidence 

1 . I n te r v ie w

2.  Checks w i th  re fe ren ces

Max. Po in ts

90-100 Long and s h o r t  term w in n e r  - e x c e p t i o n a l l y  p r i n c i p l e d ,  
r e s p o n s ib le ,  committed  - may not go i n t o  p o v e r ty  law 
Im m ed ia te ly  but w i l l  make an e x c e p t io n a l  c o n t r i b u t i o n  
to  s c h o la rs h i p  o r  s e r v i c e  o r  p r o fe s s io n

80-89 S o l i d ,  no t  n e c e s s a r i l y  e x t r a o r d i n a r y  In t a l e n t  bu t  e x t ra '  
o r d i n a r y  In  d e d i c a t i o n ;  every  evide nce o f  c a re e r  commi t­
ment to  equal j u s t i c e  and e n f ra n c h is e m e n t .

or

P o in ts  Awarded

18a



C r e d i t  to  the p r o f e s s io n  -  w i l l  be a b le ,  competent ,  com­
p a s s io n a te .  May never go In to  p o v e r t y  law o r  c o n t r i b u t e  
to  e n f ra n c h is e m e n t ;  w i l l  be a c r e d i t  to  A n t io c h ;  d i s t i n g u i s h e d  
c a re e r  l i k e l y  w i th  much p u b l i c  s e r v i c e ,  p u b l i c  I n t e r e s t  work .

70-79 Sh or t  term w inner  - long on r h e t o r i c  bu t  dubious depth o f
commitment; may spend a year  in  le g a l  s e r v i c e s ;  w i l l  spend l i f e  
f l o a t i n g  in  l i b e r a l  type  t h i n g s ;  no t  e x c e p t io n a l  i n t e l l e c t  or 
c h a r a c t e r  but l i k e a b l e .

60-69 F i l l e r  -  b e t t e r  than mos t, w e l l  I n te n t lo n e d  o r  w o u ld n ' t  have 
a p p l ie d  to  A n t io c h ;  good Im pu ls es ;  n o t in g  t h a t  n o te w o r th y .

Below
60 Marg ina l -  1n c o n t r i b u t i o n

I I I .  COMBINED COMPETENCY-CONTRIBUTION POTENTIAL

G u

Idea l 226 (202)

P r e fe r a b le 164 ' ( 1 5 2 ) and above

Above Norm 140 (130) and above

Norm 116 (108) and above

Below Norm below 116 (108)

P o in ts  Awarded

Admit

I n te r v ie w

Hold

Reje c t

IV .  COMMENTS

Decision/Date
•cc»

intv.___

wt. 1st, 

h o ld

19a



20a

APPENDIX C

Official Rules

1. Stare decisis: like cases will 
be decided alike—w ithout re­
gard to  race or class.

2. Judges are no t all powerful, 
judges are not legislators; 
they can only apply the law; 
they cannot make a separate 
rule for each individual.

3. Judges cannot respond sim­
ply to  the individual equi­
ties; they need a “peg” to 
hang the decision on: a 
principled justification in 
term s of precedent, rules, 
situation sense o f policy.

4. Judges are fair; they perceive 
themselves as bound by the 
law; they will respond to 
sound legal argum entation.

5. If a lawyer can convince the 
judge of the law yer’s own 
integrity, com petence and 
sincerity, this will neutralize 
any prejudice and biases 
against the client that the 
judge may have.

M inority S tuden t Rules

1. The race and wealth of the 
p a r t i e s  will determine 
which rules apply and who 
wins.

2. Judges are all powerful; 
judges can decide a case 
any way they want; they 
can rationalize any result 
they w ant to .

3. Only extraordinary pleas of 
suffering or hardship will 
reach the conscience of a 
judge when the poor or 
minorities are involved. 
Otherwise judges will try  to  
circumscribe or circumvent 
the law if it is favorable.

4. Judges are no t fair; they 
are tools of the power 
structure, especially the 
white pow er structure; no 
am ount o f legal argum enta­
tion will change a judge’s 
m ind—unless one can per­
suade the judge th a t it is in 
the interest of the power 
structure to  do so and that 
one is not opening the way 
to  further exceptions that 
might eventually prove 
threatening.

5. The m inority lawyer is not 
a mem ber of the club in 
today’s world and had bet­
ter not forget it. The best 
m inority lawyers can hope 
for is that the judge will 
not want to appear pre-



21a

6. Procedural due process is all 
im portant. Procedural re­
quirem ents are of substantive 
im portance; justice requires 
tha t every person have his or 
her day in court, tha t notice 
and opportun ity  to  be heard 
be given, tha t opportun ity  to 
know the evidence against 
one; tha t charge the proven; 
the evidence that is not 
trustw orthy be excluded. 
Procedural safeguards are, in 
fact the substance of law; 
th e y  determine whether 
justice can be done.

7. One m ust adhere strictly to 
the assumptions of the ad­
versary system. Do not try  a 
case in the media, do not try 
to use intermediaries to com ­
m unicate w ith the judge; the 
judge will no t listen to  ex 
parte communications.

judiced which perhaps can 
be turned to the client’s 
advantage.

6. Procedural technicalities are 
the enemy of justice; they 
are tricks used by lawyers; 
results are all that count.

7. Judges read newspapers, 
listen to television, talk to 
their friends, desire the 
approval o f the public at 
large and prestigious indi­
viduals just like anyone 
else; your client has no 
protection against such 
factors and you will be 
blamed if you respond to 
or charge the o ther side 
with initiating such tactics 
and there will be subtle but 
fatal retaliation if you inti­
mate that the judge could 
be influenced by such 
factors.

Both sets of assumptions are over simplified but the 
first in each pair is that which legal education, in one 
way or another, attem pts to im part about the legal 
system. The second set of assumptions are those which,



22a

in many cases, have been instilled from childhood on 
for the m inority or poor law student, they describe the 
world; they are realistic assumptions for survival.

One need not believe these rules; bu t one must act in 
most forums as if they are the applicable ground rules 
necessary to effective dialogue on exam inations with 
the teacher and in the court room  with the judge and 
opposing counsel.

Those rules either im plicitly or explicitly deny the 
reality of institu tional racism in the legal system and 
in society. That makes them  particularly difficult to 
accept—even as necessary fictions. From Cahn and Cahn, 
M inority Students, Lawyering Competence and the Bar 
Exam ination (November 19, 1976) (unpublished paper 
presented at a Conference of the Council on Legal Edu­
cation for Professional Responsibility).



»