Advocates for diversity in the legal profession have long identified the Law School Admission Test as a major barrier to black and Hispanic law school applicants because on average they score lower than do whites and Asians-Americans.

The blame is misplaced, University of Virginia School of Law professor Alex Johnson, Jr. argues in an article titled “Knots in the Pipeline for Prospective Lawyers of Color: The LSAT Is Not the Problem and Affirmative Action Is Not the Answer.” It appears in the latest edition of the Stanford Law & Policy Review.

The real reason why minorities are underrepresented in the legal profession is because they tend to “misapply” to law schools that are unlikely to admit them to due to their grades and LSAT scores, and because a disproportionate percentage of minority law grads take the bar exam in states with the toughest pass cutoffs, Johnson writes.

“Prospective law students should apply to law schools that they have a reasonable chance of being admitted to and there should be a national bar exam,” Johnson said in an interview. “If these things happen, we should have a more diverse profession. The test is not the problem because there literally is a law school for everyone.”

Other legal educators took Johnson’s conclusions with a grain of salt.

“I don’t doubt that that there are some people who fit this theory but, essentially, the whole article is based on the author’s anecdotal experiences on admissions committees,” said John Nussbaumer, an associate dean at the Thomas M. Cooley Law School who has researched the correlation between LSAT scores and the admission of minority applicants. “I don’t think that this “misapplication” alone can explain the large number of shutouts that occur.”

Johnson initially got involved in the law school diversity debate as chairman of the Law School Admission Council’s (LSAC) minority affairs committee during the 1990s, and later served as chairman of the council’s board of trustees. He has had a front-row seat to the admissions process first as an admissions committee member at Virginia and as dean of the University of Minnesota Law School from 2002 to 2007.

As affirmative action policies have been curtailed during the past two decades, the influence of U.S. News and World Report’s law school rankings has grown and along with it the focus law schools place on LSAT scores, Johnson said. Law schools should consider race as one factor in a “holistic” review of applicants, he said, but schools overemphasize LSAT scores in a bid to improve their rankings.

U.S. News’ increasing influence has also given rise to the idea that a legal education is worthwhile only if you go to a Top-20 law school, he said. That emphasis on rankings and the legacy of affirmative action have given minority applicants unrealistic expectations, he said. “They believe they are entitled to go to a top-tier school irrespective of their qualifications, and it doesn’t work that way.”

The latest research by the LSAC indicates that, on average, black LSAT takers score 10 points lower than do whites and Asians and Hispanics an average five points lower. Johnson’s article acknowledges the disparity, but disputes that the LSAT itself is discriminatory. He argues that the exam is one of several useful indicators of who would perform well in law school.

Johnson cited earlier research showing that among those who applied to law school during the 1999-2000 cycle, nearly 44 percent of black applicants were accepted to at least one school, compared with 65 percent of white applicants. Among Hispanic applicants, 56 percent were admitted. (Johnson acknowledged that the data were more than a decade old, but said that his observations of the admissions process suggests that little has changed.)

Nussbaumer’s own research showed similar numbers: From 2000 to 2009, black applicants to law school had a shutout rate of 60 percent and Hispanics 45 percent, compared to 31 percent for whites.

Much of that “leakage” from the pipeline of minority would-be attorneys Johnston attributes to the fact that many minority candidates are not applying to schools they have a reasonable shot of getting into.

“University of Virginia Law School, for example, often received more that 200 applications from members of underrepresented groups with LSAT scores below 150 who had little or no chance of being admitted, regardless of their accomplishments,” he wrote. (Virginia’s median LSAT score is 170.)

Minnesota Law received a similar number of applications from candidates who did not meet the admissions standards but would have a much better chance of getting into the area’s lower-ranked schools—Hamline University School of Law, William Mitchell College of Law or the University of St. Thomas School of Law—according to the article.

Encouraging minority students to apply to lower-ranked law schools should not controversial if the goal is to foster a more diverse legal profession overall, Johnson said. Prospective law students should apply to one “reach school,” but otherwise should target schools with an average LSAT score within 10 points of their own score, he advised.

Most pre-law advisers already encourage people to apply not only to a reach school, but also to schools within and below their LSAT score range, Nussbaumer said. “The bottom line is that this is not a data-driven article,” he said. “Johnson’s got very strong ties to the [Law School Admission Council] and they have a fairly big dog in this fight. They are always trying to deflect criticism from the test.”

The diversity pipeline problem doesn’t end once minority students make it into law school, Johnson argues. His article points to additional “leakage” at the bar exam stage. He cites data from several studies conducted during the late 1990s that show a disproportionately high percentage of minority law graduates sit for the bar exam in states like California that have stringent pass scores. (California lists the highest cut score at 144; New York comes in on the lower end, at 133. Texas has a cut score of 135 and Illinois of 132).

“By misapply, I simply mean that certain test takers take the test in a certain jurisdiction like California and achieve a failing score that would be a passing score in another jurisdiction, say Minnesota,” his article reads. “In other words, these law graduates who have yet to pass a bar exam have chosen to take the wrong bar exam (at least when measured by a positive outcome) and are precluded from achieving their goal of becoming a lawyer as a result.”

Since law graduates can’t forum-shop for a bar exam—the jurisdiction of the test often limits where they may practice—the most sensible solution is a national bar exam with one standard passing score, Johnson said.

The National Conference of Bar Examiners has made progress on its push toward a uniform bar exam, with 13 states signing on thus far. But those jurisdictions set their own score cutoffs. “Through the promulgation of a uniform cut score at an acceptable level, state bar examiners will be able to maintain their control over the process while not harming societal efforts to increase diversity in the profession,” the article reads.

Erica Moeser, president of the National Conference of Bar Examiners, said the ability to transfer a bar exam score from one jurisdiction to another is the primary selling point for the uniform bar exam. But it’s less clear what, if anything, having a shared cutoff score would mean for minority test takers, she said.

For one thing, few jurisdictions track demographic information for those who take the bar exam, making it difficult to gauge the situation. Second, the vast majority of graduates of ABA-accredited law schools already pass the bar on their first try. The first-time pass rate was 79 percent among those who sat for the exam in 2012.

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