Crime, Diversity, Law, Top Stories

Getting Rid of Bar Exams Won’t Help Anyone

For years, affirmative-action proponents have urged colleges and universities to reduce (or eliminate) their reliance on standardized tests as a basis for admission. The COVID-19 pandemic has opened up a window of opportunity for these activists, as many high-school students have been unable to sit for tests. And so a growing list of schools are waiving SAT and ACT requirements for their applicants.

What is less known is that the same trend is gaining traction in the professional sphere. Last month, Darleen Ortega, a judge on the Oregon Court of Appeals, cast doubt on the value of state bar exams, arguing that the bar-passage requirement “does not function to protect the public by assuring a minimum level of competence to practice law… I have never heard anyone make a cogent connection between the types of lawyer conduct that harms the public and the screening that occurs via the bar examination.” Similar arguments have appeared in the Washington Post and trade publications. Under the headline COVID Should Prompt Us To Get Rid Of New York’s Bar Exam Forever, Johanna Miller, a New York University law-school professor, recently argued that the whole bar-exam concept is contaminated by racism: “The exam was conceived, like many professional licensing schemes, to keep immigrants and people of color out of the legal profession and to protect established lawyers from economic competition. Nationally, eight percent of white test-takers fail the bar on their first attempt but as many as 40 percent of Black test-takers do.”

If Judge Ortega were correct that the bar exam did little to filter out incompetent lawyers, there would be good reason to consider its elimination. But she failed to adduce empirical evidence for her claims. Meanwhile, University of Iowa Law Professor Derek T. Muller has compiled state-level data from Connecticut, Virginia, California, and other jurisdictions that indicate a correlation between an attorney netting a low bar-exam score (or retaking the exam multiple times), and his likelihood of subsequently being disciplined or disbarred. This correlation holds even after controlling for “character and fitness” assessments. (Indeed, even those admitted under so-called “diploma privilege”—i.e., state-level policies that permit automatic admission to the bar for law-school graduates, or at least graduates from schools that meet certain criteria—are more likely to be sanctioned than control groups, though this particular disparity only emerges later in attorneys’ careers.) A 2017 study of Tennessee lawyers, for instance, found that “lawyers who failed the bar exam were more than twice as likely to be disciplined for client neglect and/or incompetence than lawyers who passed on their first attempt.”

Of course, these studies are inconclusive in regard to causation. One could point to methodological limitations or independent causes. Maybe high scorers are better able to conceal their misconduct, or receive more lenient treatment if they are caught. But surely, the burden of proof should be on test critics to make this case, rather than simply ignoring the available data. The same is true of cost-benefit arguments, such as those that proceed from the claim that the risk of attorney misconduct is outweighed by the need to enhance access to affordable legal representation and encourage more diversity in the profession. And even if one prioritizes social justice above all else, it isn’t obvious that admitting less rigorously vetted attorneys will benefit the underserved communities whose members are disproportionately caught up in the criminal-justice system.

A recent Los Angeles Times article on California’s bar-exam reform efforts noted that “of the first-time test takers from law schools accredited by the American Bar Association… 51.7% of white graduates passed, compared with 5% of Black grads, 32.6% of Latinos and 42.2% of Asians.” It was also noted that about 19 percent of white test takers never pass, despite multiple attempts—as compared to 47 percent of Blacks and about 30 percent of Latino candidates. Such numbers give us a good idea as to why the drive to ease bar-exam requirements is attracting supporters. Indiana University law-school professor Victor D. Quintanilla, who chairs the Association of American Law Schools’ committee on Empirical Study of Legal Education and the Legal Profession, told the Times that “high-stakes” exams hurt Blacks and Latinos, as “there is social psychological research that shows that even when people of color take an exam and do well, that exam may not reflect their true potential.”

This claim, which is sometimes described under the category of “stereotype threat,” has been challenged in recent years, as researchers have been unable to replicate the underlying research results. There also seems to be little basis for the claim that standardized test scores can be causatively linked to income. In the realm of SAT and ACT scores, test prep courses have surprisingly little impact on performance (and minorities are actually more likely to use tutoring services anyhow). And while the amount of time devoted to studying for any exam obviously will make some difference, evidence suggests that bar-exam prep classes have a similarly small effect.

Even those who seek to prioritize racial social justice over uniform attorney competency standards may not welcome the effects of eliminating the bar exam on non-white professionals. There are already racial disparities in rates of attorney discipline and disbarment. Admitting more low scorers, many of them disproportionately drawn from visible-minority communities, would likely compound this problem. And when this happens, the same activists decrying the bar exam now will turn their ire to the disciplinary boards, and demand that they stop acting as gatekeepers, too. This won’t disadvantage privileged legal clients, who will continue to access services at the high end of the market. The victims will be the poor, especially those who receive assistance from legal-aid attorneys. They will be at increased risk of being served by someone (of whatever race) who once never would have been admitted to the legal profession.

Moreover, proponents of lowering the bar aren’t always acting on social-justice motives. Many middle-to-low tier law schools have long faced financial distress, and have been forced to enact cost-cutting measures and lay-offs. Statistics that show their graduates failing to gain bar admission don’t help their recruitment efforts. From a purely arithmetic point of view, deans are incentivized to increase enrollment by lowering admissions standards, which they now can’t do without bringing in cohorts of students who are unlikely to pass the bar. Get rid of the bar and you get rid of the problem.

Many deans know exactly who will have trouble passing the bar, even before those students arrive on campus. Professor Muller’s July 5th blog post cites studies showing correlations among bar scores, LSAT scores, undergraduate GPA, and class rank. A 2010 study at New York Law School reported that the bar-passage rate of the school’s lowest-performing 10 percent often has hovered in single digits, and was always below 20 percent. That’s because for students who never should have been admitted in the first place, the bar exam is the real reality check—the backstop that blocks unqualified students from representing clients.

There is a larger phenomenon at play here, one that extends beyond the legal profession. Many of today’s young men and women have gone through life without much in the way of negative feedback. They see themselves as elites-in-training. And when roadblocks emerge, they are inclined to externalize their failure as a product of bias. As Russian-American scientist Peter Turchin has pointed out, such “overproduction of elites” can drive social instability, because would-be elites eventually learn that they don’t actually have the skills, nor the opportunities, to match their nominal credentials.

No gatekeeper wants to be the one to face the wrath of those who feel excluded, which is why colleges, and then law schools, and now bar associations have been pressured to relax their admission criteria. Next up will be disciplinary committees and legal consumers themselves, as the buck keeps getting passed downmarket. It’s hard to see how this shell game will work to anyone’s advantage—except the profiteers who take tuition checks from people with dubious prospects in the legal field.

 

Max Hyams is a student at the University of California Los Angeles School of Law. You can follow him on Twitter at @Maxjhyams1.

Comments

  1. It is unfortunate that rather than encouraging self improvement I an attempt to be ready for law school, or any higher education for that matter, the suggestion is to lower the bar (basically lower standards) so some people can do what they are clearly not qualified to do.

    Who do you want for your attorney? Someone who couldn’t face the challenge of the Bar Exam or the person who had the grit to take it as many times as were needed to make it happen…

  2. I work in professional regulation. A couple of things Judge Ortega and this author didn’t explore, but should:

    1. The reason for professional regulation in the first place. It’s not to ensure high paying jobs to a specific group of people, it’s to protect the public by establishing a minimum level of competence in the practitioners - to serve the “public interest”. Anybody read about the 20% of pilots in the Pakistani national airline who either bribed or cheated their way into the cockpit? And, having said that: What do you call someone who graduated last in their class in medical school? “Doctor”.

    Much as you don’t want an unqualified pilot flying your plane, you don’t want an unqualified doctor performing your surgery or an unqualified lawyer handling your death-penalty murder case.

    Remember also that every regulated profession is a gov’t controlled oligopoly. You’re restricting specific practices and procedures to a limited group of people. In exchange for that economic control of the market, they voluntarily give up certain rights given to ordinary citizens (no, I don’t need a search warrant to review your records and no, you do not have a right to Miranda). (That’s also why professions are state-regulated instead of federally regulated.). Practicing a profession is a privilege, not a right.

    1. The origin of the “professions”. When originally conceived, “professionals” were often the second son (or daughter) of wealthy families. The first son inherited the business and/or estate. The second (and subsequent) sons were given a healthy stipend and sent out to serve their community, usually as the doctor, dentist, veterinarian or lawyer. It was the real manifestation of philanthropy, wherein they served the community for a nominal fee (including being paid in chickens or other victuals) because they were independently wealthy enough to not have to make a living off their patients. Opening university up to the masses changed that. Maybe for the better, maybe not, when it comes to dedication to the morals and ethics of the profession.

    2. Something that escaped Judge Ortega is that, given the specialized nature of what they do, professionals must be judged by their peers. The conduct is taken out of the criminal realm (which is already overburdened) and put into the regulatory realm. Doesn’t mean that egregious conduct (predatory sexual practices, for one) can’t be moved to the criminal realm, but instead they are judged on the standards set by the profession, which has a stake in weeding out the bad apples for conduct that doesn’t meet the definition of a “crime”.

  3. I agree and let us get rid of medical board exams. I mean who needs them right? I’m sure the authors would feel comfortable visiting a physician with a degree from a medical school but no boards.

  4. “Johanna Miller, a New York University law-school professor, recently argued that the whole bar-exam concept is contaminated by racism: …”

    What isn’t contaminated by racism? These people have a one word vocabulary.

    “Many of today’s young men and women have gone through life without much in the way of negative feedback. They see themselves as elites-in-training. And when roadblocks emerge, they are inclined to externalize their failure as a product of bias. As Russian-American scientist Peter Turchin has pointed out, such “overproduction of elites” can drive social instability, because would-be elites eventually learn that they don’t actually have the skills, nor the opportunities, to match their nominal credentials.”

    Correct and well said.The truth hurts. That is why it is racist.

  5. Max, you have written an articulate, well-researched article and you’ve nailed it. They are woke activists and they are gaming the system.

    The bar exam was already in place in New York in the 1890s when virtually 100% of the test-takers were white males. Therefore, the purpose of the bar exam was neither sexist nor racist. It’s purpose was to weed out those who were not up to the task.

    https://www.nybarexam.org/Default.html

    Furthermore, the first black lawyer in New York was accredited in 1870. It has been 150 years since non-whites have been lawyers in New York.

    https://en.wikipedia.org/wiki/List_of_first_minority_male_lawyers_and_judges_in_New_York

    We see non-proportional, or disparate percentages in mathematics, engineering, computer science, physics, etc., in every country in the world. This is normal.

    We could use a Vulcan mind link to ascertain competency, but, of course, we all know we’d get the same “racist” results.

    Competency in a given field isn’t identical to a group’s demographic statistics.

    Look at the NBA and it’s under representation of whites and Asians. Look at the prison population and its under representation of women.

    This is called real life.

  6. I argue for the reverse of scrapping bar admissions exams, which should never be done away with. I argue for eliminating law schools as a necessary condition for bar admittance. They can exist and people can attend them as they see fit. But it should be open for anyone to get a substantive legal education any way they see fit—Estates For Dummies, online courses, getting legal information from the Heavens, whatever. But for bar admittance, everyone should be compelled to pass a battery of rigorous exams in all relevant areas, including ethics, professionalism, legal writing and legal reasoning, which test all the skills and knowledge practising lawyers basically need. Break the law schools’ strangle hold, I say, Then we needn’t worry about SATs, ACTs, LSATs or about crushing law school debt. People can go as quickly or as slowly as they decide. They can attend law schools if they choose. But however they proceed, the competence rubber will meet the legal road with bar admissions exams, a hard and comprehensive set of them. My lawyer friends look askance at the idea. I’m a lawyer. I think it’s a good one.

  7. “there is social psychological research that shows that even when people of color take an exam and do well, that exam may not reflect their true potential.”

    Potential is an insidious term. What is it? How does one measure it? Is it a measure of accomplishment, contribution, merit, ensured future success? No. Anyone here know of someone who has been paid, hired, assigned or promoted based on potential? If so, was it unbiased? Demonstrated ability is perhaps the best indicator.

  8. Yes, I also feel that passage … “They see themselves as elites-in-training. And when roadblocks emerge, they are inclined to externalize their failure as a product of bias”… was on point. I find the zealotry of antiracism increasingly destructive: whereas in the past we were told to look beyond a person’s skin color, today color is the content of one’s character. Now it’s a qualification too. I’m bored by it. Black people whose only talent is to shout “racist” and “give me” are an embarrassment to other black people.

  9. There is another, far more nefarious motive that underpins the deliberate undermining of standardised tests, of all kinds- the fact that it allows the feckless, sub-par sons and daughters of wealthy White liberal elites to displace meritocratic candidates from further down the social pecking order. To give you an example, fees-paying admissions to elite colleges usually score in the top 5% for IQ, whilst their more meritocratic counterpart possess scores in the top 2% or 1%.

    This would probably mean that their parents got there through grit, hard work and determination, focusing on academics and their subsequent career to the exclusion of all else. With the second generation this is likely not the case, and it may well be that we would find bulldozer moms choreographing their every activity, including ADHD prescriptions and profile-enhancing extracurricular activities.

    The real answer to how to fill professional bodies with the requisite number of candidates from diverse backgrounds, is to go further back down the pipeline to improve the conditions of schools in areas that the liberal establishment is loath to broach. Active parental participation in the educational process is an absolute must.

    Schools need to have strict low-level discipline procedures, preferably prefaced with a contractual arrangement signed before enrolment, which in turn can encourage conduct which allows for two years additional learning by the end of K-12, through less class-time lost to disrupted classrooms. Additionally, whether the learning style of somewhat progressive or fully teacher-centred, the curriculum and teaching style needs to be knowledge-rich.

    There are plenty of examples from the UK which meet this criteria, where educational dogmas are being overthrown. The Michaela Community School is one, the Brampton Manor Academy another.

    It’s not a panacea or a magic wand, any educational system can only push the performance curve, not rewrite it completely. But unlike the conventional education system, where the difference between an adequate school and a good one only improves performance by 10%, these schools which address the fundamental root causes which can act to the detriment of pupils, achieve much better results.

    Leftists (and even liberals) don’t want to admit that levels of poor parental participation can often be endemic in poorer communities. They don’t want to contemplate that even a few bad apples in the peer group can spoil the whole bunch- bad behaviour spreads, good behaviour doesn’t. Above all, they don’t want to admit that Authority has its place in rearing healthy children- or that children will always try to test and break the rules, so it’s important to set the bar high.

    The other thing to consider is the effects of the purely political on the educational process. Research shows that a sense of agency is incredibly important in determining life outcomes. In many ways, the narrative of victimhood which Leftists are fond of perpetuating, is exactly the worst thing to hand a teenager, especially a boy. It may well be that academic mismatch also plays a role in these disparate professional test scores. Has anyone done the research to see whether someone performing in the middle at a less prestigious college has a better chance of passing the bar, than someone at better school who has consistently placed in the bottom 10%?

    The Leftists drive for equality of outcome may well be doing a huge amount more harm than anyone realises- just what are the effects of being subjected to a no-win scenario, day-in, day-out? How does it effect your morale, sense of agency and conscientiousness? My suspicion would be that it causes irreparable harm. The Left really needs to go further back, if they truly want to generate all-encompassing change, and they also need to be honest about where the real barriers lie, even it does mean being critical, or invites self-examination of ones own failures.

  10. I disagree with Notorious on this, because I think he is falling into the trap that so many modern educators fell into, and which @Geary_Johansen2020 has exposed here before. You have to remember a lot of law to practise law. You can’t just think that you can look it up as you need it. That is like the modern pedagogical idea that we don’t need to teach children any knowledge other than how to Google . The problem is that if you don’t have some knowledge you won’t know what to Google.

    The Australian system is much different. It is designed so that In effect you cannot be admitted to practise as a solicitor unless you have a job working for, or under the tutelage of, a senior solicitor. The biggest hurdle is therefore getting a paralegal job before you graduate. This tends to winnow out the students with the less impressive marks.

    Once you graduate you have to do a very easy practical legal training course which gives you tips on what a solicitor does. As part of this you need to be employed as trainee lawyer by a firm. Once you’ve done the course you get admitted to practise. For a few years you have a restricted practising certificate, meaning you have to be supervised by a senior solicitor.

    In Australia, the Bar refers to those lawyers who appear in the higher courts as advocates. They are usually people who have been solicitors, though a few graduates go straight to the bar. Before being admitted to practise a person needs to have a place in chambers and have an experienced barrister as a tutor. There is a Bar course and a bar exam. These focus on the rules of advocacy and are not overly difficult. Barristers have to work as sole traders. They work in chambers in which a group of them get together to share the expenses of running offices.

    Barristers usually can’t be briefed directly by a client, only by a solicitor. It is the latter who runs a court case in all other aspects but arguing before the court.

  11. Standards are the enemy of woke socialism. I believe, after speaking to a friend’s ‘woke’ girlfriend, that merit is to be assigned to underprivileged persons based on their level of oppression. In her eyes, any form of testing is wrong, that ‘lived experience’ is much more important than silly scribbling on paper, and jobs should be assigned by a central committee with the goal of achieving perfect diversity.

  12. We are living in the age of faux racism. Why? Because the history of the last twenty years has demonstrated Democrats are unable to gain Presidential power without ginning up the black vote to Obama era levels. Therefore the Democrats are continually seeking to divide the electorate and pander to the black vote. The racism drum beat will continue as long as it continues to play well with black leadership and black voters. George Floyd is the name of the horse Democrats hope to ride into the White House.

  13. Except they don’t really pander to them, they just mouth platitudes and accuse everyone else of being racists…

  14. You guys are having so much fun I hate to say anything, but will :wink: Please get rid of the word “memorization.” It denigrates the process. One can learn and remember facts. To be successful requires understanding what they mean, when to apply them and extrapolating beyond them to something more meaningful.

    OK, back at it.

  15. I have a had long and very good life teaching law schools all around the world. My experience with the bar exam is that it is brutally fair. The brutal part is that it culls out the folks who should never have been allowed to graduate from law school in the first place. Indeed many bar exams were adopted by the state in order to close down exploitive proprietary law schools who were turning out utter fools.
    The disparity in outcomes considering race and other factors is significant and every law school must devote real attention to getting all its students ready to take the bar. The overriding, singular point is to insure for the benefit of the public that the lawyers who join the bar are ready, in at least a basic sense to represent clients and do justice.
    I am fairly sure that the public would not accept airline pilots and heart surgeons to be tested on their preparation for duty by their color, creed, sex or any other factor that diminishes the role of competency.
    I have been blessed to have taught so many fine students of every conceivable description. My Teaching Assistants, who were highly diversified, have been marvelously successful. That is what the bar exam is suppose to do. Give to the public only professionals that have been tested on their individual ‘content of the character’ and competency, not the color of their skin, whether they have two X chromosomes, not just one etc.
    If we wish to trivialize America education further, just take individual merit out of it and see how quickly we continue to stumble towards mediocrity, race hatred, tribalism, and destruction of all the bonds of love, country and culture that bind us together.

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