By Leanne Fuith
The bar exam has long served as a gatekeeper to the profession, with the goal of protecting the public by ensuring that newly licensed attorneys meet minimum standards of competence. Yet critics have suggested that the bar exam has also served to “gatekeep” who can become a lawyer and that it works to exclude individuals along race, class, and gender lines. In a profession that desperately needs to become more diverse and inclusive to ensure access to justice on a broad scale, this is of particular concern. Now, in the wake of the covid-19 pandemic, jurisdictions across the nation are looking critically at the bar exam and evaluating new pathways to attorney licensing.
A history of racialized gatekeeping
For more than 25 years, academics and practitioners have sounded the alarm about the bar exam’s possible racialized gatekeeping function. The use of bar exams to exclude people from the practice of law coincided with periods of heightened immigration and with the success of Black people in joining the legal profession.1
In 1921, the American Bar Association pushed to abolish diploma privilege, add other licensing requirements, and require applicants to the bar to identify their race, stating that “it has never been contemplated that members of the colored race should join this association.”2 Not coincidentally, these additional barriers were implemented as an increasing number of immigrants, Blacks, and Jewish people sought to join the legal profession.3
Today, the bar exam continues to disproportionately limit, or even exclude, the entry of the historically underrepresented and economically disadvantaged into the legal profession.
Racial and gender disparities well documented
The racial disparities in the legal profession and in bar passage rates that still exist today are well-documented. As of January 1, 2021, there were 1,327,910 active lawyers in the U.S., an increase of approximately 8.4 percent in the past decade.4 Currently, 85 percent of lawyers identify as non-Hispanic white people. In comparison, roughly 60 percent of U.S. residents identify as non-Hispanic white people.
Despite ongoing efforts to increase diversity in the legal profession, just 4.7 percent of all lawyers are Black—the same percentage as a decade ago—while 13.4 percent of the U.S. population is Black. Only 4.8 percent of all lawyers are Hispanic, slightly up from 4 percent a decade earlier, although 18.5 percent of the U.S. population is Hispanic. And 2.5 percent of all lawyers are of Asian descent, again slightly increased from 1.7 percent a decade ago, while almost 6 percent of the U.S. population is Asian. Roughly one-half of 1 percent of all lawyers (0.4 percent) are Native American, down from 1 percent a decade ago, while the U.S. population is 1.3 percent Native.
Not surprisingly, the same patterns are reflected in the judiciary. During the past four years, from 2017 through 2020, the U.S. Senate confirmed 229 federal judges. Of those, 192 (84 percent) were white, 13 (6 percent) were Asian American, nine (4 percent) were Black, nine (4 percent) were Hispanic, and none were Native American, according to the Federal Judicial Center, the research and educational arm of the U.S. court system. Over the same four years, 174 of the people confirmed to federal judgeships (76 percent) were men and 55 were women.
Racial and gender disparities connected to the bar exam
In June 2021, the ABA revealed bar exam passage rates, as reported by 197 law schools in 2020 and 2021, broken down by race, ethnicity, and gender.5 The first-of-its-kind report revealed that white test takers were more likely to pass the bar exam in 2020 than test takers of other races and ethnicities. Among white men and women taking the bar exam for the first time, 88 percent passed.
By comparison, only 66 percent of Black first-time test takers passed, along with 76 percent of Hispanics, 78 percent of Hawaiians, 78 percent of Native Americans, and 80 percent of Asians. The “ultimate” pass rate, which measures success with the bar exam over a two-year period, was higher for all categories than the rate for first-time takers.
Bar exam design is problematic and does not adequately assess competency
The effectiveness of the bar exam in measuring competence to practice law has long been the source of concern. In daily practice, attorneys need the knowledge, skills, and ability to understand their clients’ issues, consult relevant law, and assist clients and other parties in solving problems.
Most would agree that we need some type of assessment of new lawyers to protect the public and ensure the integrity of the legal profession. In fact, the American public still overwhelmingly supports the requirement that law school graduates pass a bar examination before being allowed to practice law.6 But the bar exam does not fully reflect the realities of practice.
Scholars have attributed the racial gaps to the design of the bar exam, a high-stakes test that requires memorization of legal rules across a wide array of areas of law.7 Law practice today, in contrast, does not rely on rule memorization. In fact, most legal practitioners practice in niche areas of law and do not need to be familiar with the broad swath of laws tested on the bar exam to be considered competent in their work.
The bar exam’s focus on memorization also requires two months of full-time preparation that place a substantial burden of time and financial costs on candidates. After three to four costly years of legal education, the bar exam demands that candidates graduate law school only to take time out of the work force to continue their studies and purchase expensive preparation courses to learn strategies for taking the bar exam. Passing the bar exam is not just a requirement for fulfilling a candidate’s dream to become a lawyer. For many, it is also a requirement for their financial survival. Candidates of color are less likely to have the financial resources to support this preparation and may also bear more responsibilities supporting families with few resources.8
The pandemic has focused new attention on the bar exam
The bar exam has come under intense scrutiny since the covid-19 pandemic was declared in the United States in March 2020. Beginning with the July 2020 administration of the bar exam, many examinees around the country were forced to prepare for the bar exam during a lockdown and required to continually shift their plans as public health guidelines changed and jurisdictions made changes to their plans to administer the bar exam.
Adding to the confusion, every jurisdiction has administered the bar exam differently during the pandemic. Some states, including Minnesota, administered the exam in person while taking as many precautions as possible to protect the health of examinees, while other states administered the bar exam online (with limited success) and still others rescheduled or canceled their bar exams multiple times.
The disruption of the covid-19 pandemic, and the extraordinary anxiety and stress and professional and financial consequences experienced by examinees during this time, has highlighted the urgent need for a broader and deeper study and reform of attorney licensing requirements.
NCBE implementing recommendations for next-generation bar exam
In 2018, the National Conference of Bar Examiners (NCBE), which provides licensure exam materials for the Uniform Bar Exam (UBE), appointed a Testing Task Force to undertake a study to identify the legal knowledge and skills entry-level attorneys are expected to have or learn within the first three years of practice, and to determine whether, how, and when those identified competencies should be assessed on a bar exam.9
The NCBE’s work was conducted in three phases beginning in 2018 and concluding at the end of 2020. It consisted of both qualitative and quantitative research that included listening sessions with attorney licensing stakeholders and a nationwide practice analysis survey of lawyers describing the work performed by newly licensed lawyers and the knowledge and skills needed to perform that work. NCBE also established two expert committees to review the data gathered and provide input on the content that should be tested on the bar exam.
In January 2021, after nearly three years of study, the Board of Trustees of the National Conference of Bar Examiners approved the NCBE Testing Task Force’s recommendations for building a better bar exam. The NCBE’s recommendations are based on the principle that the purpose of the bar exam is to protect the public by ensuring that newly licensed lawyers possess the minimum knowledge and skills to perform activities typically required of entry-level lawyers, which include knowledge and skills that are of foundational importance to numerous practice areas.
The NCBE Testing Task Force’s recommendations suggest that the next generation of the bar exam should:
- “test fewer subjects and… test less broadly and deeply within the subjects covered”;
- place greater emphasis on assessment of lawyering skills to better reflect real-world practice and the types of activities new lawyers perform;
- remain affordable;
- ensure fairness and accessibility for all candidates; and
- ensure score portability across jurisdictions.10
The NCBE Testing Task Force’s recommendations are consistent with the purpose of the exam to protect the public and the notion that newly licensed lawyers secure a general license to practice law, suggesting that the knowledge and skills assessed on the bar exam should reflect foundational knowledge and skills common to numerous practice areas.
The NCBE is now working to implement the recommendations for the next generation bar exam—a process that is expected to take four to five years. The changes include drafting new exam questions that test both knowledge and skills in an integrated way, ensuring examination accessibility for all candidates (including those with disabilities), analyzing and reviewing the exam format to ensure fairness for candidates of diverse backgrounds, and studying options for administering the exam in-person and online.
While a good first step, the NCBE’s evaluation and recommendations are focused entirely on developing the next iteration of the bar exam and do not go far enough. But they have created a unique moment for Minnesota and other jurisdictions to conduct their own evaluations of attorney licensing more broadly.
Efforts in other jurisdictions and at home in Minnesota
Other jurisdictions are leading the way in evaluating new paths to attorney licensing. Several, including California, New York, Washington, Oregon, and Georgia, have launched task forces to tackle the complex and nuanced issue. Some of these task forces were created prior to the pandemic, but their findings are especially relevant in the present moment.
Each of these task forces is charged, in some way, with evaluating the knowledge, skills, and abilities needed to practice law ethically and competently, examining the efficacy of the current bar exam, and exploring innovative methods of adapting the professional licensure process to ensure an equitable and responsible path to attorney admission that continues to fulfill the core objective of protecting the public.
Of particular note is Oregon.11 After examining methods such as apprenticeship programs, experiential learning programs, and admission by diploma privilege based on law school graduation, the Oregon State Bar Alternatives to the Exam Task Force recommended two alternatives to the traditional bar exam in June 2021.12 The first is an experiential learning pathway in which law students focus on hands-on coursework during their last two years of law school and submit a capstone portfolio to the state Board of Bar Examiners upon graduation. The second is a supervised practice pathway in which law students would work between 1,000 and 1,500 hours under the supervision of a licensed attorney before submitting a portfolio of work to the Board of Bar Examiners to show minimum competency. The Oregon Board of Bar Examiners unanimously voted to advance the task force’s recommendations to the Oregon Supreme Court for further consideration and adoption. The Oregon Supreme Court will now consider whether to adopt the recommendations and will make a decision within the next several months.
Efforts to evaluate the bar exam are underway at home in Minnesota as well. In June 2021, the Minnesota Board of Law Examiners (BLE) announced plans to commence a comprehensive two-year study of the bar examination for the purposes of providing the Minnesota Supreme Court with a report and recommendation no later than June 1, 2023.13
The scope of the BLE’s Competency Study will be broad; the primary focus is the bar examination, including the history of the examination in Minnesota and the impact of being a UBE jurisdiction. The BLE also intends to review: alternative options for determining competency for licensure; supervised practice/limited practice models; legal education and the impact of any potential change on legal education requirements; and the impact of the licensure process on diversity and equity. Individuals interested in receiving updates on the Competency Study should email firstname.lastname@example.org for more information.
In October 2021, the Minnesota State Bar Association (MSBA), whose mission it is to “[promote] the highest standards of excellence and inclusion within the legal profession, [provide] valued resources to its members, and [strive] to improve the law and the equal administration of justice for all,” petitioned the Minnesota Supreme Court to form a diverse, robust, and inclusive task force to study and consider recommendations for change in attorney licensing generally in Minnesota, including but not limited to the bar exam.14
Citing the importance of this issue to the Minnesota legal profession and the recent actions that have been undertaken by jurisdictions across the country to study the bar exam and attorney licensing, the MSBA asked the Minnesota Supreme Court to appoint a task force to conduct a broader inquiry—one that explores possible changes to the bar exam, whether the bar exam is necessary, and whether there are alternative attorney-licensing approaches that may more accurately evaluate attorney competence and protect the public.15
The MSBA also requested that the Minnesota Supreme Court appoint members to the task force that represent greater diversity in age, race and ethnicity, gender, number of years of practice, geographic location, and practice areas than the current composition of the BLE. The MSBA proposed that the task force include representatives from the BLE; the Lawyers Professional Responsibility Board; Lawyers Concerned for Lawyers; the Minnesota Judicial Branch; the three Minnesota law schools; new lawyers; law students; members of the MSBA, HCBA, and RCBA; Minnesota’s affinity bar associations; legal employers representing all sectors, including private practice, business, government, the judicial branch, and nonprofit; and national experts on exam development or grading and on online testing software, security, and privacy evaluation.
Following the filing of the MSBA’s petition, the BLE filed a letter with the Minnesota Supreme Court confirming the steps it has undertaken in its Competency Study of the bar exam, the scope of its continued work, and its support for a comprehensive and inclusive study of this issue.16 The MSBA’s petition remains with the Minnesota Supreme Court for review and consideration as of the date of this publication.
As our focus on creating a diverse, equitable, and inclusive legal profession increases, it is essential that we re-evaluate licensing measures that govern attorney admission into the legal profession. The bar exam is too often a measure of privilege and opportunity, rather than competency to practice law. Now is the time to consider better ways to license attorneys. The need is urgent.
LEANNE FUITH is an associate professor at Mitchell Hamline School of Law, where she teaches courses in business formation and management and lawyer and law student professional identity formation. She previously practiced business law, employment law, and commercial and employment litigation and is admitted to practice in the state of Minnesota.
1Raising the Bar: A Publication Dedicated to the Exchange of Evidence-Based Thinking About the Bar Exam, AccessLex Institute, Vol. 3, Iss. 4 (Fall 2020). https://www.accesslex.org/sites/default/files/2020-10/Raising%20Tthe%20Bar_OCT%202020.pdf
2 15 J. Cunyon Gordon, Painting by Numbers: “And, Um, Let’s Have a Black Lawyer Sit at Our Table”, 71 Fordham L. Rev. 1257, 1274 (2003) https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3878&context=flr ; Daniel R. Hansen, Do We Need the Bar Examination–A Critical Evaluation of the Justifications for the Bar Examination and Proposed Alternatives, 45 Case W. Rsrv. L. Rev. 1191 (1995). https://scholarlycommons.law.case.edu/caselrev/vol45/iss4/32
3 Richard L. Abel, American Lawyers, 85, 109 (Oxford University Press 1989).
4 The statistics cited in this paragraph and the next two are drawn from Profile of the Legal Profession 2021, American Bar Association (July 2021). https://www.americanbar.org/content/dam/aba/administrative/news/2021/0721/polp.pdf .
5 Stephanie Francis Ward, New ABA data parses out bar exam pass rates by race and ethnicity, ABA Journal (6/22/2021) https://www.abajournal.com/newsarticle/new-aba-data-parses-out-bar-exam-pass-rates-by-ethnicity .
6National Survey Finds Support for Bar Exam, National Conference of Bar Examiners (9/30/2020). https://www.ncbex.org/news/national-survey-bar-exam/ In a recent survey, 60 percent of Americans supported a supervised in-person bar exam with masks, social distancing, and compliance with all other local health guidelines during the covid-19 pandemic. When survey respondents were asked about the post-pandemic environment, support for the in-person bar exam increased to 70 percent.
7 Andrea Anne Curcio, Carol L. Chomsky, and Eileen R. Kaufman, Testing, Diversity, and Merit: A Reply to Dan Subotnik and Others, 9 U. Mass. L. Rev. 206 (2014). https://ssrn.com/abstract=2518597
8 Merritt, Chomsky, Angelus, Howarth, Racial Disparities in Bar Exam Results—Causes and Remedies, Bloomberg Law (7/20/2021). https://news.bloomberglaw.com/privacy-and-data-security/racial-disparities-in-bar-exam-results-causes-and-remedies
9Final Report of the Testing Task Force, NCBE Testing Task Force (April 2021). https://nextgenbarexam.ncbex.org/wp-content/uploads/TTF-Final-Report-April-2021.pdf
11 Notably, during the covid-19 pandemic, Oregon was the third state to grant temporary diploma privilege for in-state graduates and people who graduated from ABA-approved law schools with first-time bar passage rates of at least 86%. Stephanie Francis Ward, Oregon is third state to grant diploma privilege, while Tennessee cancels its July UBE, ABA Journal (6/30/2020). https://www.abajournal.com/news/article/third-state-agrees-to-temporary-diploma-privilege-with-some-restrictions
12Willamette University law dean, Oregon task force recommend alternative pathways to licensure beyond traditional bar exam, Willamette University (6/28/2021). https://willamette.edu/news/library/2021/06/law-alternative-pathways.html (The dean of Willamette University College of Law and a member of the Oregon task force, Brian Gallini, noted, “This is a tremendous and historic shift in the thinking around attorney licensure. That the Oregon Board of Bar Examiners endorsed these proposals without any changes also shows, fundamentally, a forward-thinking recognition that the bar exam as we know it is not the only way for new lawyers to show minimum competency.”)
13Public Notice, Minnesota State Board of Law Examiners (6/21/2021).
14 Pet. of the Minnesota State Bar Association for Task Force, ADM10-8008, 10/6/2021.
16 Letter filed with the Minnesota Supreme Court by the Minnesota Board of Law Examiners (10/14/2021).