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Posted July 23, 2013
Faculty Q&A

Bar Exam Standards, 'Misapplication' to Law Schools Offer Obstacles to Minorities Seeking to Become Lawyers, Johnson Says

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University of Virginia law professor Alex Johnson has authored a new paper, "Knots in the Pipeline for Prospective Lawyers of Color: The LSAT Is Not the Problem and Affirmative Action Is Not the Answer."

Though law schools' appetite for high test scores is often blamed for the low number of minorities joining the legal profession, the real obstacles are toughening bar exam standards and applicants who fail to apply to a broad range of schools, University of Virginia law professor Alex Johnson argues in a new article published in the Stanford Law & Policy Review.

Contact: Mary Wood

In "Knots in the Pipeline for Prospective Lawyers of Color: The LSAT Is Not the Problem and Affirmative Action Is Not the Answer," Johnson said African-Americans and, to a lesser extent, Hispanics would benefit from more standardized national bar passage rates, as the cutoff score for passing the bar has risen in some states in recent years.

Johnson, the Perre Bowen Professor of Law and the director of UVA Law's Center for the Study of Race and Law, served as the chair of the Board of Trustees of the Law School Admission Council, the nonprofit organization through which prospective law students apply to schools and the administrator of the LSAT. Johnson also served as chair of the LSAC Minority Affairs Committee and the Test, Development and Research Committee.

Why did you decide to look at the issue of underrepresented minorities in the legal profession?

I have been interested in this issue since I matriculated at law school and noticed the low number of minorities in my entering class. However, my interest was piqued when I chaired the Minority Affairs Committee of the Law School Admission Council (LSAC) in the early 90s, and later when I became chair of the Board of Trustees of the LSAC. The immediate impetus for the article was an invitation to appear on a panel to address the future and efficacy of affirmative action in light of legislative and court challenges. What I discovered is that in the last decade or so, affirmative action has had little impact on increasing diversity of the practicing bar due to the detrimental impact of the rankings produced by U.S. News & World Report and the “knot” in the pipeline created by state bar examinations.

What did you think you would find when you approached this topic, and did/how did those assumptions change once you completed the article?

I thought I would find that the primary cause for the lack of diversity would be the negative impact of the U.S. News ' rankings on admission decisions, given the rankings emphasis on the law schools ' median LSAT score that correlates almost 100 percent with the ordinal ranking of the law schools by U.S. News. Although that is indeed a major factor, I was surprised by the impact created by the "misapplication" to law schools by students of color — that is, students applying to law schools that they have literally no chance of being admitted to — and not applying to law schools that they do have a legitimate chance of gaining admission. This represents a significant loss of African-American matriculants and Hispanics, to a lesser extent. I was also surprised by the differential impact that bar exam passage has on minority test-takers, resulting in many African-American and Hispanic test-takers failing the bar with scores that would be a passing score in many jurisdictions.

You argue that the LSAT is not the obstacle to underrepresented minorities seeking to enter the legal profession that some allege it to be. Why?

Although African-Americans continue to score on average 8-10 points below white and Asian test-takers on the LSAT (one standard deviation, the so-called "score-scale differential"), given the increased number of law schools and the expansion of law school classes, there literally is a law school for every applicant. Indeed, given the recent decline in applicants, law schools are now shrinking their entering classes because they cannot fill all of their seats.

What do you think about schools using alternatives to the LSAT? Or changing how they value the LSAT?

As I address in the article, the LSAT is not discriminatory and is in my opinion the best standardized test employed in higher education. When used properly, as one metric among many in evaluating applicants per the so-called "holistic approach" to admissions, it yields excellent results. As originally conceived and used, the LSAT was a tool for inclusion and increasing diversity in law schools by allowing students from less prestigious and selective schools (non-Ivies) to demonstrate that they, too, could excel in law school.

You suggest that the applicants ' choice of which schools to apply to is critical. What practical advice would you have for applicants about how to decide where to apply?

The data is out there for all to review. No one should apply to a law school when their LSAT score ensures that they will not be competitive in that applicant pool when measured by objective indices. Although there is no exact formula, it makes little sense for someone with a 153 LSAT score (the median score) to apply only to law schools with a median LSAT of 170 or higher. The chances of being admitted are infinitesimal and if some miracle should occur and the applicant with the 153 is admitted, he or she would be competing with students in a pool where the average student has an LSAT score that is roughly two standard deviations better. That is a recipe for disaster for that applicant. Consequently, it may be good practice to apply to a "reach" school, but most applications should be directed to schools within 10 points (higher or lower) of that applicant's average LSAT score. Unfortunately, not everyone can matriculate at top-10 law school, but that should not be dispositive regarding whether one becomes a lawyer.

You also outline "bottlenecks in the pipeline" to the legal profession regarding the bar exam. What are they?

Again, this is a form of "misapplication." For African-Americans, over 70 percent sat for the bar exam in just 10 states (in descending order: New York, New Jersey, California, Maryland, Texas, Illinois, Florida, Pennsylvania and Louisiana), and those 10 states were among the most rigorous or selective in their pass rate, resulting in many African-Americans failing the bar with a score that would be a passing score in many other states, like Minnesota or Virginia.

What is behind the movement in many states to toughen state bar exams?

A malign motive would be to protect the economic interest of the practicing bar by artificially restricting competition by reducing the number of practicing lawyers. A positive motive is to improve the quality of attorneys practicing in these jurisdictions. Neither of these motivations is provable, nor do I believe plausible. Instead, the explanation appears to be quite simple: States want to be regarded as tough as [insert state here] (usually California or New York) and they see raising their cut or passing scores as a way to raise the reputation of the quality of their bar.

How can the bar exam system be improved to help diversify the legal profession?

In the article I advocate a national uniform cut/passing score for the Multistate Bar Examination (MBE) portion of the bar exam. In addition, states that use the National Conference of Bar Examiner's (NCBE) Multistate Essay Exam (MEE) (at last count, 22), should likewise use a uniform cut or passing score for that portion of the exam. Given the influence and growth of the NCBE — 49 states use the MBE for bar exam testing — we are slowly but surely moving to a national bar examination in any event. It makes little sense to me that a test-taker who has a passing MBE score of 140 (on a scale of 200) in Pennsylvania would not be licensed to practice law in Nevada, which requires a score of 150 for the same exact test.

Should law schools do more to prepare underrepresented minorities for the bar exam?

I do not think this is an issue for law schools, although the ABA's Section on Legal Education permits law schools to provide what are essentially bar prep courses for credit. Studies tend to show that these prep courses have little impact on pass rates. Instead, and as discussed above, the cut score has the most impact. The other factor that significantly impacts pass rate is one's ability to devote study time to the bar exam. Test-takers who work full-time while studying for the bar exam tend to fail at disproportionately high rates. Those working part-time also fail at a higher rate than those who do not work. I must concede that I am in the minority on this issue and do agree that bar prep courses do no harm. I just haven't seen any proof that these courses provide a significant boost to pass rates, but again, it cannot hurt.

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