Lower tiered law schools that admit students with low LSAT scores should be celebrated for providing an opportunity to enter the legal profession for those students at the margins of society. Unfortunately, their work has lately been characterized as predatory in popular media like The Atlantic and the NYT. With its 2015 State of Legal Education report, Law School Transparency (LST) has instigated a dangerous national discourse, arguing that some ABA-accredited law schools have been engaged in a process of admitting students with low LSAT scores (which the LST labels “high risk”) who do not have a reasonable chance of passing the bar. LST’s framing of these law school’s actions is disturbing given that: (1) the LSAT is at best a weak predictor of first-time bar passage, and (2) there is no evidence that law school graduates are not eventually passing the bar.
As a sociologist and law professor at Whittier Law School—one of the law schools that LST has labelled as high-risk—I decided to take a closer look at the results that LST relies on in coming to its conclusions about bar passage and risk. LST relies strongly on results published in the LSAC National Longitudinal Bar Passage Study (LSAC Study). I agree with the recent press release by the LSAC that it is problematic to use a 25 year old study to assess current bar passage risk. Over the past 25 years, the LSAT has not only changed with respect to its score scaling, but also its content and substance. However, even if you assume you can draw current inferences about today’s LSAT from the decades old LSAC Study, it fails to provide evidence supporting LST’s contentions.
LST clings to the false premise that the LSAT has a strong correlation to bar passage.
This presumption is necessary in order to maintain a system of classification that categorizes a student’s risk of failing the bar based on her LSAT score. Citing the LSAC Study, the LST 2015 State of Legal Education report overview, states that the LSAT is the best predictor before law school as to whether a student will pass or fail the bar exam. But this statement is a bit misleading for two reasons. First, it does not acknowledge that the indicators that do a better job predicting bar passage are those that appear after law school begins—i.e., a student’s law school GPA. The LSAC Study states clearly that—of all the variables used in the study—cumulative law school GPA is the best predictor of first time bar passage. This should come as no surprise. What a student actually learns in law school should have significant salience in her first-time bar passage.
However, LST focuses on admissions standards. Which leads to my second point as to why the LST’s statement is misleading. The LSAC Study never stated that the LSAT is the best predictor of bar passage. It states that of the factors that it has pre-selected, the LSAT is the best predictor of first-time bar passage. It is important to state that the LSAC Study considered a few “before law school” variables in addition to the LSAT (for example, undergraduate GPA, college selectivity, law school status, socio-economic status (as measured by family income in high school and parents’ occupation), and race & ethnicity). One could easily imagine that a factor like a student’s family income or financial resources available (a) when entering law school, (b) during law school, or (3) in the three months prior to sitting for the bar could be extremely probable and plausible factors that might not only correlate, but might actually cause some change in student performance with respect to first-time bar passage. It is vital to point out that the idea that the LSAT is a best indicator is relative, and in fact the LSAT might only be the best among a limited number of selected variables.
What LST fails to report is that while it is true that the LSAC Study reports that the LSAT is has a statistically significant correlation to bar passage, this correlation is weak at .30. The LSAT as a single variable explains less than 10 percent of the variation in bar passage. Only when the LSAT is used in a model with law school GPA does the correlation get stronger—and even then it is somewhat weak. A majority of the variance (about 68%) in bar passage outcomes cannot be explained! This means that how people actually perform on the bar varies a lot from how one might expect them to perform on the bar given their law school GPA and LSAT score. We clearly need other factors to explain this variance. In order to do this, it might make more sense to examine what happens to the bar taker after law school begins but before sitting for the bar—particularly exploring how students are preparing for the bar, and analyzing their material and economic resources during prep period.
Instead LST’s overemphasis on the LSAT, treats the weak correlation between the LSAT and bar passage as somehow causally connected. Granted, LST has never explicitly stated that there is a causal connection. To their credit, they have stated that there are things, like increases in undergraduate GPA, that could offset a low LSAT score. However, in the absence of this offset, LST treats the LSAT as having causal power—the LSAT either needs to be offset with higher undergraduate GPA or individuals with low LSAT scores and average uGPAs should be denied admission. Even the authors of the LSAC Study warned against this crude thinking, and stated explicitly that the presence of a correlation does not mean that raising law school GPA or LSAT scores will lead to an increase in bar passage.
LST Overemphasizes First Time Bar Passage
This is less an issue of empirical debate and more of an interpretative discussion. LST states that law schools are accepting unqualified students who can’t pass the bar, yet they offer no evidence that these students are not passing the bar on subsequent attempts. You cannot solely measure passing the bar on whether students pass the bar on the first attempt. That is unacceptable.
Of course every school should strive to increase their first time bar passage rate, for the sheer reason that multiple bar attempts can create economic and psychological hardships on graduates. However, we should not overemphasize first-time bar passage so much that we ignore the fact that there are many graduates who pass the bar on subsequent attempts and enter a legal profession that either requires their bar standing and/or welcomes the advantage that their JD training provides.
According to the LSAC Study, 98% of bar takers with an LSAT score at or above the mean eventually passed the bar, compared to 90% of bar takers with an LSAT score below the LSAT mean. There is likely evidence that eventual pass rates are well above 75% for low tiered law schools. We know that one of the ways in which law schools with low first-time bar passage maintain their accreditation under the ABA is because they maintain a bar passage rate above 75% for those students who have graduated in the most recent five year period. Eventually passing, whether on a second or third try—or within 5 years of graduation—seems like a far more important outcome than first-time bar passage, if we are seriously concerned with whether graduates are entering the legal profession.
Law school administrators and faculty must resist perpetuating and participating in the dangerous narrative advanced by LST. Others have highlighted the paternalistic and problematic nature of this narrative. In recent years, law school applications have been in decline. This has made it somewhat easier for an individual to get accepted into a law school. When admissions standards become easier, those at the margins of society—specifically the poor and black & brown racial and ethnic minorities—have the potential to benefit. But just at the moment when it becomes easier for those at the margins to gain admission into the legal profession, the media and organizations like LST engage in a crusade to vilify law schools and pressure them into accepting fewer students. This is done in the name of “transparency” and a paternalist drive to help the “unqualified” applicant who is at high risk of failing the bar. Instead, LST’s strategy is at high risk of keeping black and brown people, and the poor from having the opportunity to ever sit for a bar.