Criminal history inquiries and minority threat in the legal profession: An analysis of law school and state bar admission applications

• Published date: 01 January 2023
• Author: James M. Binnall,Nick Petersen
• Date: 01 January 2023
• DOI: http://doi.org/10.1111/lapo.12206

ORIGINAL ARTICLE

Criminal history inquiries and minority threat in the

legal profession: An analysis of law school and state

bar admission applications

James M. Binnall

1

|Nick Petersen

2

1

Law, Criminology, & Criminal Justice,

CSULB Project Rebound, California State

University, Long Beach, Long Beach,

California, USA

2

Sociology & Criminology, Secondary

Appointment in the School of Law, University

of Miami, Coral Gables, Florida, USA

Correspondence

James M. Binnall, Law, Criminology, &

Criminal Justice, CSULB Project Rebound,

California State University, Long Beach, 1250

Bellflower Blvd., Long Beach, CA 90840,

USA.

Email: james.binnall@csulb.edu

Nick Petersen, Sociology & Criminology,

Secondary Appointment in the School of Law,

University of Miami, 5202 University Drive,

Merrick Building, Room 122G, Coral Gables,

FL 33146, USA.

Email: npetersen@miami.edu

Abstract

While all but one U.S. law school and every state bar ask

about criminal history on their admissions application,

such inquiries vary considerably in the depth of informa-

tion sought. One potential explanation for variations in

the depth of criminal history inquiries among law schools

and state bars relates to minority threat dynamics. Draw-

ing on data quantifying the depth of criminal history

inquiries for 190 ABA-approved law schools and all state

bars, as well as school and state demographics, this study

explores the issue for the first time. Negative binomial

regressions reveal that law schools and state bars located

in states with larger Black and Latino populations

employ more probing criminal history inquiries. We also

find that this relationship is parabolic—where the minor-

ity threat effect is negative in states with a critical mass of

Black/Latino residents. Finally, minority threat effects for

law school criminal history inquiries are moderated by

state bar criminal history inquiries, suggesting that law

schools are cued by state bar policies. These results pro-

vide some support for minority threat theory, informing

debates about the continued use of criminal history inqui-

ries to screen prospective law students and lawyers, and

the inclusiveness of the legal profession generally.

1|INTRODUCTION

Though lawyers are part of the populace they swear to serve, the legal profession is notoriously

homogeneous (Kennedy, 2019). Roughly 61% of first-year law students are white, whereas only

James M. Binnall and Nick Petersen contributed equally to this manuscript.

DOI: 10.1111/lapo.12206

©2023 University of Denver and Wiley Periodicals LLC.

4Law & Policy. 2023;45:4–44.wileyonlinelibrary.com/journal/lapo

7% are Black, and 13% are Latino (ABA, 2020). Not surprisingly then, attorney demographics

take on a similar pattern. Non-Latino white lawyers (85%) are grossly overrepresented com-

pared to their share of the population (60%), while Black (13.4%) and Latino (18.5%) Ameri-

cans are significantly underrepresented, comprising only 10% of all attorneys combined (ABA,

2020; U.S. Census, 2010).

1

This homogeneity has led some commentators to characterize the

law as the “whitest profession”(Anderson, 2009, p. 1012; Moran, 2010, p. 39), noting that

“minority representation [in the law] regrettably lags far behind minority representation in the

U.S. general population”(Nance & Madsen, 2014, p. 287).

One aspect of access to the legal profession that perhaps contributes to its racial homogeni-

zation but has not received much attention is the use of criminal history inquiries (but see

Binnall & Davis, 2021; Cohn et al., 2019). While a number of jurisdictions have passed “ban

the box”and “beyond the box”legislation forbidding the use of criminal history inquiries on

employment and undergraduate admission applications (Evans et al., 2019; Vuolo et al., 2017),

law schools and professional licensing agencies are typically exempted from these reforms

(e.g., California Education Code §66024.5(b), 2020). As a result, all U.S. law schools but one

and all state bars ask some form of criminal history inquiry on their application for admission.

Despite evidence that criminal history inquiries do little to ensure the protection of law

schools or the profession (Olszewska, 2007; Runyan et al., 2013) and can prompt application

attrition among those with criminal legal system contact (Cohn et al., 2019; Rosenthal et al.,

2015), they are uniformly part of accessing the legal profession. And such questions almost cer-

tainly contribute to racial imbalances in the legal profession, as Black and Latino law school

and state bar applicants are statistically more likely to have a criminal record due to racialized

mass incarceration (Alexander, 2012; Shannon et al., 2017; Stewart & Uggen, 2020). Thus,

criminal history inquiries on law school and state bar admission applications likely fuel racial/

ethnic homogenization in the legal profession, and given this skewed utilitarian calculus, it is

unclear what explains the continued prevalence and varying depth of such inquiries among

U.S. law schools and state bars.

One potential explanation is that these patterns mirror broader minority threat dynamics.

2

According to minority threat theory (Blalock, 1967), members of the racial majority are more

likely to impose social control measures in contexts where their dominance is threatened by a

larger minority population. These processes can trigger a “sphere of group exclusiveness”

(Blumer, 1958, p. 4), where the dominant group implements exclusionary policies and practices

to maintain their power, such as Jim Crow laws, voter disenfranchisement laws, and other col-

lateral consequences (Behrens et al., 2003). Research on minority threat finds that exclusionary

institutional policies and practices in a variety of settings, including schools, are shaped by

micro- and macro-level racial/ethnic demographics (for a review, see Wang & Todak, 2016).

For example, schools with larger Black and Latino student bodies utilize exclusionary school

policies (e.g., suspension, expulsion) at higher rates (Welch & Payne, 2010,2012,2018), while

the passage and implementation of collateral consequence laws are concentrated in southern

states with larger Black populations (Behrens et al., 2003; Ewald, 2012). Given that law schools

and state bars are embedded within broader social systems where racial/ethnic contestations

may be present, it is possible that racial/ethnic demographics of state populations might shape

the scope and depth of criminal history inquiries on law school and state bar admissions

applications.

Drawing on a novel inventory of law school and state bar criminal history inquiry scores,

this article explores potential predictors of such inquiries, paying particular attention to state-

level measures of minority threat. We pair these data with information about state- and school-

level demographics, as well as statistics on each state’s criminal justice profile. Negative bino-

mial regressions indicate that law schools and state bars in states with larger Black and Latino

populations ask significantly more criminal history sub-inquiries on their applications, and

these relationships are parabolic where the effect is negative in states with a critical mass of

BINNALL and PETERSEN5

Black/Latino residents. Moreover, state-level minority threat effects are exaggerated in states

with more in-depth criminal history inquiries on their state bars. These findings offer support

for the minority threat perspective, suggesting that criminal history inquiries in the legal profes-

sion may reflect and reinforce broader racial/ethnic tensions between dominant and

minoritized

3

groups, making diversification of the legal profession and the realization of cul-

tural competency among lawyers more challenging. On the other hand, minority threat effects

for law school student body demographics are more mixed, where the percentage of Black stu-

dents is predictive of less intrusive criminal history inquiries, and the percentage of Latino stu-

dents is predictive of more intrusive criminal history inquiries. These results show that despite

ongoing diversification efforts in U.S. law schools and among state bars, the vestiges of racial

exclusion linger.

1.1 |A primer on the moral character requirement

Becoming an attorney is a difficult task for any person. For those with prior criminallegal sys-

tem involvement, the journey comes with significant additional obstacles. At two distinct phases

of the process for admittance to law schools and state bars, an applicant must prove that they

are of “good moral character,”a vague standard that has been the topic of considerable debate

(for a review see, Rhode, 2018).

As previously noted, all but one U.S. law school ask some form of a criminal history inquiry

on their application for admission. Thus, applicants with prior criminal legal system contact

must almost always provide an explanation of those contacts as part of their application to law

school. In response, schools may ask for an in-person interview, additional court documents,

and/or reference letters attesting to an applicant’s“moral character”(Weissmann et al., 2009).

Once a student has completed law school, they must once again prove they possess the req-

uisite character to practice law (Swisher, 2008). As part of the professional licensure process,

applicants must pass a bar exam and demonstrate the “moral character”to become an attorney.

But U.S. jurisdictions are split as to the interconnectedness of the bar exam and the moral char-

acter determination. In 39 states and the District of Colombia, the bar exam and the moral

character process are mutually exclusive, such that an applicant can take the bar exam without

a positive moral character determination (Gundersen & Guback, 2022, p. 5). To achieve licen-

sure, however, an applicant in a mutually exclusive jurisdiction must still receive a positive

moral character determination from the jurisdiction’s bar association before being permitted to

practice. In the remaining 11 states, an applicant’s opportunity to take the bar exam is condi-

tioned on successfully navigating the moral character process and receiving a positive determi-

nation (Gundersen & Guback, 2022, p. 5).

4

Notably, by conditioning the bar exam on a

positive moral character determination, students with a prior criminal legal system contact are

subjected to additional stressors at a crucial time in their legal studies, preparing for a bar exam

they may not be permitted to take unless they successfully prove their moral worth

(Rhode, 2018).

Despite these jurisdictional differences, all state bars ask about an applicant’s prior criminal

legal system contact as part of their moral character and fitness process, which is designed to

establish that “graduating law students …meet high standards of moral character”(Arnold,

1997, p. 63; see Appendix). Though very few applicants without a criminal history are denied

bar admission for character issues (Rhode, 1985, p. 16), for those with prior system contact,

“the application process can become particularly troublesome”(Arnold, 1997, p. 63), as “appli-

cants with criminal acts in their past often face a heightened burden of proof of good moral

character”(Binnall, 2009; DeVito, 2008, p. 158).

Moral character requirements on law school and state bar applications almost uniformly

consider an applicant’s prior contact with the criminal legal system, though the type and depth

6