Jurisprudence

The Pandemic Is Proving the Bar Exam Is Unjust and Unnecessary

Next week, 23 states will force thousands of prospective attorneys to risk their lives to take an exam that only perpetuates inequality.

Gavel sitting on a table in front of a stack of books
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Twice a year, recent law school graduates nationwide prepare for the bar examination, the biggest test of would-be attorneys’ lives. “Bar prep,” the shorthand for the two months of exhausting 12-hour days of study, costs upward of $3,000 and culminates in thousands of applicants filing into convention and conference centers in major cities for two days.

The spread of COVID-19 has made this traditional arrangement unsafe and, frankly, unethical. Nonetheless, 23 states are still opting for in-person bar exams next week, placing applicants at risk for contracting COVID-19 while mandating that applicants sign liability waivers releasing state bars of all legal culpability should the applicant become ill as a result of an in-person exam. The sad reality is that many will need to risk their lives to take an exam that some have called “an unpredictable and unacceptable impediment for accessibility to the legal profession” that does nothing to protect the public.

Recognizing the impossible situation in which many bar applicants find themselves, I co-founded United for Diploma Privilege, a grassroots coalition of recent law graduates, lawyers, law professors, and legislators pushing for attorney licensure reform that would do away with the bar exam, instead granting automatic licensure upon graduation from law school and completion of moral character and fitness applications. This path to licensure is called diploma privilege. What began in California in March quickly spread, and we are now a nationwide movement with advocacy teams in almost 40 states.

As a vocal advocate for diploma privilege, I often get asked how the profession can maintain minimum standards of competency if we were to do away with the bar exam. Envisioning what the legal profession would look like without the exam generates such collective anxiety that it’s almost as if we, as a profession, are uncertain as to what our identities would be without a standardized test.

Last year, the American Bar Association reported that 85 percent of attorneys nationwide are white, 5 percent are Black, 5 percent are Latinx, 2 percent are Asian, and 1 percent are Native American. The abysmal numbers reflect a grim reality: There exist numerous structural barriers to entry into the legal profession if you are not white, and the bar exam is one of them.

Lawyers have stopped asking themselves why such an exam was necessary in the first place. It’s time to see the bar exam for what it truly is: the relic of a racist club.

The bar has a sordid history as one of the many racialized gatekeeping mechanisms into the practice of law. The legal profession was a virtually unregulated, open field of practice for generations until immigrants and Black and Jewish people started applying for bar admission in the late 19th century. The modern bar exam emerged around this time, and a number of states began requiring graduation from ABA-accredited law schools in order to become licensed to practice law. These new gatekeepers relied on racially discriminatory requirements.

The profession had its most public identity crisis at the 1912 American Bar Association meeting, after the bar accidentally let three Black men, William H. Lewis and Butler R. Wilson of Massachusetts and William R. Morris of Minnesota, become members. In the law review article “Painting by Numbers: ‘And, Um, Let’s Have a Black Lawyer Sit at Our Table,’ ” J. Cunyon Gordon notes that members of the ABA were so outraged that three Black men had become members that the ABA Board of Governors contemplated revoking their membership via resolution. In the end, the ABA instead passed a resolution that mandated that racial demographic data be required for entrance to the bar. The resolution read, in part:

That, as it has never been contemplated that members of the colored race should become members of this association, the several local councils are directed that, if at any time any of them shall recommend a person of the colored race for membership, they shall accompany the recommendation with a statement of the fact that he is of such a race.

It wasn’t until 1963 that the ABA formally decided to admit attorneys without consideration of race or religion. Nonetheless, the original racialized gatekeeping rules have continued. And they achieved their purpose—just look at the most recent results of California’s February bar exam. Only 5 percent of Black first-time bar exam–takers who graduated from California ABA-accredited law schools passed the February 2020 bar examination. That’s 5 percent of 20 total test-takers. That means that only one Black first-time test-taker from a California ABA-accredited law school passed. First-time white test-takers, by contrast, have a 51.7 percent passage rate.

The COVID-19 pandemic has only made the uneven playing field more obvious. This year’s upheaval should force us to reconsider the value of gatekeeping mechanisms we have long taken for granted. Four states have agreed to embrace diploma privilege with certain exceptions this year and allow graduates of ABA-accredited law schools to skip the bar exam. But most state supreme courts and bar associations remain committed to maintaining the bar exam in the name of “protecting the public”—an often-deployed phrase that many states have not even been able to define.

Some states are canceling and postponing the exam, as New York did last week. Cancellation and postponement, however, will only place test-takers in a precarious financial situation, delay their ability to apply for and start jobs, and create more uncertainty.

Original data gathered by our organization and submitted in a report to the Supreme Court of California show that anything less than diploma privilege will result in even greater inequities that our profession will not soon recover from. In our survey of nearly 1,500 bar applicants, 35.5 percent of our respondents said they were experiencing housing insecurity (that number grows to approximately 39.1 percent for Latinx graduates, 40 percent for Black graduates, and 71.4 percent for Alaska Native or American Indian graduates). And 12.4 percent of respondents are experiencing food insecurity (17.4 percent for Latinx graduates, 25.3 percent for Black graduates, and 25.4 percent of Alaska Native or American Indian graduates). These disparities will not ease anytime soon. Even if the exam is delayed or canceled, graduates will simply remain in limbo.

Many states, like California, Ohio, and New Hampshire, are turning to an online-only bar exam. But these online administrations will only perpetuate the disparities that continue to exclude many deserving candidates from the legal profession.

For one thing, not everyone has access to reliable internet. More than 70 percent of our California respondents reported that they either had no access to reliable internet or were unsure of whether their access would be reliable, per the bar committee’s standards. Further, the majority of people do not have a quiet space to study. More than three-quarters of survey respondents (76.9 percent) in the same survey reported not having space or said they were unsure that they will have the required space, to participate in an online exam administration. An online bar exam is also fundamentally inequitable for applicants with disabilities who seek accommodations, as many of these applicants will be required to take an in-person exam if they wish to exercise their right to accommodations.

Further, online administration will involve the use of artificial intelligence to proctor test-takers and collect facial recognition data. As the ACLU of California wrote in a July 16 letter to the state Supreme Court, using biometrics to verify test-takers’ identities puts BIPOC and undocumented populations at risk. “The deployment of facial recognition threatens to further entrench racial and economic inequities that have long created barriers to the legal profession,” the letter warned.

None of these workarounds does anything to safeguard professional standards; they exist only to prop up the supremacy of the exam itself. As jurisdictions now consider alternatives to a traditional bar exam, it is time to expose and confront the profession’s racialized past. Inequities past and present should force us to consider what kind of profession we will tolerate and what kind of lawyers we want to be.

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