Are the Bar (Law) Exams Racist?

Tomorrow Reality Dispatch will dive into the currency of this topic.  But for today…

What’s The Problem?

The question of how well black students do in law schools has been in the news.  The answer isn’t hard to find:

According to the National Black Law Journal’s LSAC Study, “first-time pass rate is 30 percent lower for blacks (61.4%) than for whites (91.93%). ”  Similarly, Historically Black Colleges/Universities (HBCU) law schools, where affirmative action and competition are not an issue, have dramatically lower bar exam pass rates.

Some important points:

  • HBCUs do have lower admission standards, because they are serving a segment of the population that has not had the advantages of the rest of society.  That was their original purpose.
  • They are also effective.  HBCUs are a real “safe space”, built around the needs of that segment of the population.  Check out the historical statistics here.

But HBCUs cannot overcome the full disparity between advantaged students (primarily asian and white) and their students (primarily black students lacking some of those advantages.)  Their students still struggle disproportionately with the bar exam.

Similarly, in the November 2004 Stanford Law Review, Richard H. Sander wrote “A Systemic Analysis of Affirmative Action in American Law Schools, in which he came to six conclusions (after 80 pages!)

  1. Affirmative Action can put students into competitive environments they cannot compete in.
  2. They then do relatively poorly and fail or leave at higher rates than their better-qualified competition.
  3. Low “credentials” entering law school (i.e. via affirmative action) correlate to low law-school grades, which correlate to failing the bar.
  4. When blacks pass the bar and enter the job market, they do well.
  5. Without affirmative action, 86% of the black students who attended accredited
    American law schools (via an affirmative action program) would still have been admissible to a law school, though perhaps a less prestigous venue.
  6. The result is that the black lawyer pool is reduced by affirmative action (due to circumstances noted in item 2 above).

Which suggests that HBCUs are still needed and that the bar is a significant hurdle.

What Is “The Bar Exam”?

This is the legal exam an aspiring lawyer must pass, in order to practice law.  Each state has a distinct set of laws and requirements, and their own Bar requirements.  But the Unified Bar Exam consists of:

Why is it required?

The primary justification for the bar exam is to protect consumers (that’s us) from “unqualified practitioners” (incompetent lawyers.)  This implies that passing the bar demonstrates that the test taker is qualified.

Critics of the bar point out that there are no written justifications for the questions in the bar exam – that the bar does not have any obvious correlation to legal/lawyer competency.  This becomes relevant when discussing any disparites, as at that point they can be chalked up as proof of “bias.”

Reality Dispatch is against baseless tests – for example, why do some states require 600 hours of training and an expensive license just to provide manicures? – but is also against groundless claims of bias.  These critics do not point out examples of such bias; they merely speculate.

Is The Bar Biased?

Disparate results do not prove bias.  But a tweaked meaningless test could be strongly suggestive of bias.  In the above-referenced study, Christopher Jencks suggests that,

“Culture is not merely a body of knowledge and skills. It is also a set of strategies for dealing with the unknown and with tasks that seem difficult. Culture can affect people’s willingness to think about unfamiliar questions, their strategies for seeking answers that are not obvious, their motivation to persist in the face of frustration, their confidence that such persistence will be rewarded, and their interests in figuring out what the tester thinks is the right answer. “

Unfortunately for Jencks’ position, any focused reader would notice later when he also claimed the LSAT (the entrance exam) suffers “prediction bias” because on average blacks get lower scores than whites.  He ignored that  the LSAT is a reasonable predictor of whites and over-estimates the success of blacks:

Law School Transparency released a report that students with LSAT scores below 150 have increased risk of bar failure, with students of LSAT scores below 145 being at extreme risk.
Ultimately, the LSAT is still a strong predictor of academic success and bar passage, as well as career success

This puts any rational conversationalist in double-jeopardy, because some identity-politics activists will call predicting unequal outcomes racist even if the predictions are correct… and will also call the final results racist.

Guilty Until Proven Innocent?

Reality Dispatch is Where Facts Still Matter.  Unfortunately, we could not find any evidence that bar scores correlate to the long term quality of the lawyer.

The bar is pass or fail, with the pass score varying by state.  Roughly it is:

Which is a solid D or below in most school systems.  And the score can be any aggregate of those three test portions.   Your lawyer may have done disastrously on the practical portion and still passed the bar.

Given that the Bar questions have not been well justified, and that passing it doesn’t require a particularly high (apparent) score, and that it’s having a racially disproportionate effect, what we’d like to see… and cannot find… is:

Demonstrate that lawyers who got top scores in the bar were demonstrably better than those who barely passed the bar, and that those who barely passed were still sufficiently qualified… and that lowering the scores 20 points would result in unqualified lawyers.

In other words, it isn’t that we believe the test really is racially biased, but we see no evidence that it is measuring something valid either.  Because, remember Point #4 from Richard Sander, above:

4. When blacks pass the bar and enter the job market, they do well.

Tomorrow we will tie this into the current news.

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