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.