Stark racial disparities mark the legal profession’s licensing process. Last year, just 66% of Black law school graduates passed the bar exam on their first try. Among White candidates, 88% succeeded. Other racial groups fell in between, ranging from a 76% first-time pass rate for Latinx candidates to an 80% rate for Asian exam takers.
Scholars have attributed them to the exam’s design. Its focus on memorization, for example, requires at least two months of full-time, intensive cramming. Many candidates also purchase expensive prep courses to learn exam-taking strategies.
Candidates of color are less likely to have the financial resources to support this preparation. They may also bear more responsibilities supporting families with few resources and helping spouses or siblings who have lost jobs.
Study Shows Bar Exam Is a Test of Resources
A new study by the AccessLex Institute lends support to these explanations. The researchers analyzed survey responses from more than 5,000 JD graduates who took the Uniform Bar Exam for the first time between July 2016 and February 2018. The surveys gathered data about bar preparation, financial resources, LSAT scores, law school selectivity, and a host of other factors.
Multivariate analyses of these data confirmed that the “key ingredient” to bar passage “is extensive time dedicated to bar exam preparation.” Candidates who studied 40 or more hours per week for the two months preceding the exam were significantly more likely to pass than other test-takers. So were those with higher household income, who received financial support from families during law school, or who purchased commercial bar prep courses.
Conversely, candidates who worked while studying for the bar exam were significantly less likely to pass. So were those with lower household income or larger household sizes. All these relationships held even after controlling for LSAT score, law school selectivity, and other factors.
These analyses confirm what scholars have maintained for decades: the bar exam is a test of resources. Candidates who can afford to study full-time for two months after law school, who can purchase expensive prep courses, and who have few family demands are most likely to pass the exam. Given racial disparities in family resources, the exam’s disparate racial impact is predictable.
But the exam’s disparate impact reaches even further than that. The AccessLex report reveals that even after controlling for all of these factors (household size, household income, employment, use of a commercial prep course, LSAT score, law school selectivity), candidates of color were significantly more likely to fail the bar exam than White candidates.
This effect occurred for every racial group studied: Black, Latinx, and Asian/Pacific Islander candidates were all significantly more likely than White candidates to fail, even when they enjoyed similar LSAT scores, financial resources, and other supports. What explains that disturbing result?
Part of the answer almost certainly lies in the nature of a high-stakes, time-pressured exam. Research convincingly demonstrates that these exams evoke stereotype threat: a phenomenon that dramatically depresses performance among individuals (especially high-achieving ones) who belong to a group that our culture stereotypes as low-performing at a particular activity.
Stereotype threat affects all of us. White men, for example, perform less well on math tests when they are reminded that “Asians outperform Whites” in math. Simply triggering that stereotype in White men significantly reduces their achievement.
Our profession, in sum, maintains an entrance exam that predictably and inexorably favors White candidates. The exam requires intensive and expensive preparation that White candidates can more likely afford. It then employs a testing format and environment known to produce stereotype threat in candidates of color.
This might be defensible if a high-stakes, speeded exam based on extensive memorization were necessary to protect the public. But it’s not.
Is an Exam Necessary to Assess Competence?
We know that neither the memorization nor speed demanded by the bar exam are necessary for entry-level law practice. We also know that alternatives exist for assessing minimum competence. Supervised clinical experiences, portfolios, post-graduate practice, and other routes can measure competence as effectively as a high-stakes exam.
Given the financial resources devoted to preparing, administering, grading, and guarding the security of the bar exam, alternative routes may even be more cost-effective. Certainly, they would be less costly—in dollars, time, and stress—for the candidates.
A few states are experimenting with these alternatives. The New Hampshire Supreme Court and University of New Hampshire maintain the Daniel Webster Scholars Program, which bases bar admission on successful completion of a rigorous, clinically focused law school curriculum.
An Oregon task force has proposed creating two alternative paths to licensure, one based in an experiential law-school curriculum and the other grounded in post-graduate supervised practice. The New York State Bar Association has also recommended that the state consider alternatives to the bar exam.
These proposals carry the promise of admitting better prepared lawyers than the current bar exam; one study of the Daniel Webster program found that its graduates outperform lawyers admitted by examination.
Equally important, these programs offer hope for ending the racial disparities deeply ingrained in the current bar exam. Many—perhaps most—law graduates will continue to take a written bar exam. But simply offering a choice of licensing avenues may help reduce the stereotype threat and other burdens that inhibit candidates forced to sit for the current exam. Licensing should sort candidates based on competence, not resources or race.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Deborah Jones Merritt is a distinguished university professor and the John Deaver Drinko/Baker & Hostetler Chair in Law at The Ohio State University Moritz College of Law.
Carol Chomsky is a professor of law at the University of Minnesota Law School.
Claudia Angelos is a clinical professor of law at New York University School of Law.
Joan Howarth is a distinguished visiting professor at the William S. Boyd School of Law, University of Nevada at Las Vegas; and Dean Emerita, Michigan State University College of Law.
All four authors are members of the Collaboratory on Legal Education and Licensing for Practice, a group of 11 scholars who have studied and written about the bar exam, licensing, and legal education for many years.
Affiliations are listed for identification only; all authors contributed to this column as individual scholars and not as representatives of their respective institutions.