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 Abstract

Excerpted From: Jane E. Cross, The Bar Examination in Black and White: The Black-white Bar Passage Gap and the Implications for Minority Admissions to the Legal Profession, 18 National Black Law Journal 63 (2004-2005) (227 Footnotes) (Full Document)

Concerns about “minority performance on the bar examination make it impossible to ignore the subject of the bar examination as a formidable barrier to minority admission to the legal profession.” Evidence has shown that the bar examination has had an adverse impact on efforts to diversify the legal profession due to the lower pass rates of minority examinees as compared to non-minority examinees. The most dramatic gap in performance is the difference in pass rates of Black and white bar candidates.

This disparity in test performance is not limited to the bar examination. The differential test scores observable when comparing scores of Black and white standardized test takers has been labeled the “Black-White Test Score Gap.” Christopher Jencks and Meredith Phillips have identified the existence of the Black-White Test Score Gap based on the following conclusions:

African Americans currently score lower than European Americans on vocabulary, reading, and mathematics tests, as well as on tests that claim to measure scholastic aptitude and intelligence. This gap appears before children enter kindergarten and it persists into adulthood. It has narrowed since 1970, but the typical American black still scores below 75 percent of American whites on most standardized tests. On some tests the typical American black scores below than 85 percent of whites.

In terms of the bar examination, a similarly observable difference in the bar passage rates of Blacks and whites can be called the “Black-White Bar Passage Gap.” It is the size of this gap and the resulting impediment to efforts to diversify the legal profession that have raised concerns about the continued use of the bar examination as an impartial gatekeeper to the legal profession.

The effect of the Black-White Bar Passage Gap is that “the bar examination operates as a substantially greater barrier to entry into the legal profession for Blacks and Hispanics than it does for whites.” As such, the bar examination creates a barrier to the proportionate representation of Black lawyers in the legal profession. Dannye Hollen and Thomas Kleven estimated that “[t]his barrier reduced minority representation from 6.5 percent of law school graduates to no more than 4.5 percent to 5.5 percent of the new lawyers admitted in the last half of the 1970's, and from about 7 percent of law school graduates to about 5.0 percent to 5.8 percent of the new lawyers admitted in the first half of the 1980's.” Accordingly, they concluded that “the legal hierarchy's failure to systematically collect data on minority performance on the bar exam, to explore the reasons the bar exam so disproportionately screens out minorities, and to undertake corrective action, is at best irresponsible and at worst calls into question the legal hierarchy's purported commitment to increasing minority entry into the legal profession.”

Rather than compile racial data to assess whether there is a Black-White Bar Passage Gap, some state examiners, such as New York's, “have purposefully refused to compile these statistics” in order “to avoid the appearance of discrimination.” Even the Law School Admissions Council (“LSAC”) encountered some reluctance from state bar examiners while compiling data for the LSAC National Longitudinal Bar Passage Study (the “LSAC study”). The LSAC study noted that “[f]ourteen states declined to participate for a variety of reasons.” The LSAC study explained that “[t]he most typically reported reasons were lack of interest in the questions posed by the study, distrust of use that would be made of the data, and a belief that the jurisdiction was unable to share bar examination data about individuals even when those individuals explicitly granted permission.” The LSAC obtained the necessary information for its study from participating law schools and public lists of passing candidates.

The LSAC study published in 1998 clearly documents the existence of the Black-White Bar Passage Gap but does not attempt to fully explain the disparity. Even though the LSAC study fills gaps in the data on bar passage results, the failure of many state bar examiners to compile data on bar passage results and minority admission to the bar makes it difficult, if not impossible, to fully assess the extent of the Black-White Bar Passage Gap. Paul Bender noted in 1972 that possible evidence of the Black-White Bar Passage Gap and its effects calls the validity of the bar examination into question. He asserted that the constitutionality of the continued use of the bar examination is questionable “[i]f the statistics show that blacks do not perform as well as whites on an examination, and if the examination has the potentiality of unfairly discriminating against blacks - whether or not that discrimination is intended.” Thus, statistics showing a Black-White Bar Passage Gap continue to raise enduring questions about the fairness of the bar examination and the actual ability of the bar examination to test the competency of all examinees without unfairly excluding Black examinees.

Three converging trends highlight the importance of continuing to examine the Black-White Bar Passage Gap. First, the data published by the National Conference of Bar Examiners (“NCBE”) shows the overwhelming adoption and use of multistate examinations as a component of the bar examinations. Since the Black-White Test Score Gap is most evident on standardized tests, this increasing standardization of state bar examinations warrants an evaluation of its possible role in the persistence of the Black-White Bar Passage Gap. Second, data from the American Bar Association (“ABA”) shows increasing law school enrollment and graduation rates for minorities. It is important to continue to explore the existence of the Black-White Bar Passage Gap because it will affect larger proportions of law school populations. Third, data from the NCBE shows an increase and subsequent decline in national bar passage rates due in part to the raising of passing scores in a number of states. Lowering bar passage rates have caused, in some jurisdictions, an increase in the Black-White Bar Passage Gap. To understand the possible implications of the Black-White Bar Passage Gap, it is important to explore it within the context of these three trends that have emerged since the early 1970s and affect diversity in the legal profession. The cumulative impact of these three trends increases the importance of examining the persistence of the Black-White Bar Passage Gap.

Not only is the Black-White Bar Passage Gap a persistent concern, but it also defies the concepts of test validity and bias, which have been used to support the continued use of the bar examination. In the context of the Black-White Bar Passage Gap, such concepts are inadequate to determine if differences in bar passage rates accurately reflect whether Blacks who fail the bar examination also lack the skills, knowledge and ability to competently practice law. A more viable explanation emerges when the bar examination is scrutinized based on concepts that focus on the effect of what is tested and the experiences of Black people when taking standardized tests. As Peter Sacks explained, “persistent gaps in average test scores among ethnic groups have less to do with underlying ability than how that ability is measured.” Along these lines, Christopher Jencks has identified types of bias relevant to the Black-White Test Score Gap, and Claude Steele and Joshua Aronson have documented the effect of “stereotype threat” as one explanation for the manifestation of the Black-White Test Score Gap. These concepts indicate why it is necessary to continue to compile data on and to study the phenomena of the Black-White Bar Passage Gap.

[. . .]

The endurance of the Black-White Bar Passage Gap continues to slow the rate of diversification in the legal profession. Given the roots of the Black-White Test Score Gap in differences in cultural perception, there is no short-term or easy means to reduce its existence. Nonetheless, efforts to reduce this gap will not be fruitless. As Jencks and Phillips predicted, “while it is clear that eliminating the test score gap would require enormous efforts by both Blacks and whites and would probably take more than one generation, we believe it can be done.” Accordingly, if the law schools, bar examiners and members of the legal profession seek to seriously address this gap, efforts to reduce the Black-White Bar Passage Gap would require the coordination of resources and the collection and review of data amongst educational institutions, test developers and administrators and the profession. Such enormous efforts will not be undertaken if the significance of the Black-White Bar Passage Gap is explained away by reference to indicators, such as LSAT scores or LGPA, or if the gap is viewed as an imponderable conundrum. Ultimately, whether law schools, bar examiners and the legal profession take on the challenge of resolving this gap is dependent on the value placed on achieving greater diversity in the profession.

If the Black-White Bar Passage Gap remains unattended, however, it will persist as an imperfection in the bar licensing process. It will plague examination administration, as seen in the increased standardization of the bar examination. It will overshadow any progress in the enrollment and graduation of minority law students. It will call into question proposals by bar examiners to increase passing scores or to lower passing rates. At the same time, it will remain unexplained by basic concepts of test validity and bias. Accordingly, an approach to the Black-White Bar Passage Gap which focuses on understanding the dynamics of this gap, rather than discounting it, will provide insights into how enduring cultural differences affect and possibly distort the outcome of tests designed to assess ability, knowledge and skills.

Without such examinations, there is nothing new in this area, apart from the repetition of data showing the Black-White Bar Passage Gap. Without continued inspection of the causes, reasons and dynamics of the Black-White Test Score Gap across testing instruments and in the decision of whether to grant a license to practice law, there will be little to report except increases or decreases in these gaps. Therefore, without concerted efforts to understand the role of the Black-White Test Score Gap in the bar examination, the Black-White Bar Passage Gap will persistently frustrate and delay the process and speed of diversification of the legal profession.

The author is currently an Assistant Professor at Shepard Broad Law Center, Nova Southeastern University.

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