Digital Commons @ Touro Law Center Scholarly Works Faculty Scholarship 2013 Does Testing = Race Discrimination?: Ricci, the Bar Exam, the LSAT, and the Challenge to Learning Dan Subotnik Touro Law Center,
[email protected] Follow this and additional works at: https://digitalcommons.tourolaw.edu/scholarlyworks Part of the Legal Education Commons Recommended Citation 8 U. Mass. L. Rev. 332 (2013) This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ Touro Law Center. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Digital Commons @ Touro Law Center. For more information, please contact
[email protected]. Does Testing = Race Discrimination?: Ricci, the Bar Exam, the LSAT, and the Challenge to Learning Dan Subotnik 8 U. MASS. L. REV. 332 ABSTRACT Aptitude and achievement tests have been under heavy attack in the courts and in academic literature for at least forty years. Griggs v. Duke Power (1971) and Ricci v. DeStefano (2009) are the most important judicial battle sites. In those cases, the Supreme Court decided the circumstances under which a test could be used by an employer to screen employees for promotion when the test had a negative racial impact on test takers. The related battles over testing for entry into the legal academy and from the academy into the legal profession have been no less fierce. The assault on testing is founded on an amalgam of postmodernist, industrial organizational, and diversity theory. Leading the charge is the Society of American Law Teachers, which rightly claims that the LSAT, bar exam, and related law school accreditation standards have the effect of disproportionately keeping minorities out of the profession.