Excerpted From: Scott DeVito, De-Normalizing Racial Bias in the Bar Examination: Two Pragmatic Solutions, 63 Washburn Law Journal 23 (Fall, 2023) (228 Footnotes) (Full Document)


ScottDeVito.jpegAdmission to the bar should not be conditioned on one's race or ethnicity. Yet, recent statistical analyses demonstrate that students from communities of color underperform their peers even when we control for other relevant factors like entering credentials, school rank, and region. Such a result indicates a problem with the test rather than the test-takers. Bias in the bar examination has been a long-recognized problem, facing both litigation in the 1970s, and state court and state bar efforts to address the problem in the 1980s and 1990s. The long history of racial and ethnic bias in admissions to the bar and the likely chilling effects of the Supreme Court's recent decision on affirmative action in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, makes it imperative that the legal profession take action to eliminate systemic roadblocks that negatively affect people from communities of color who seek admission to the bar.

This Article explores two approaches to eliminating the problem of racial and ethnic bias in the bar examination. First, because of the long-standing nature of the problem and the inability of state actors to eliminate it, we must develop legal remedies that will force change or severely punish those who perpetuate this system. While issues of legislative and statutory immunity restrict many of the ordinary opportunities for a legal remedy, there remain other legal theories, founded in well-established law, offering potentially successful methodologies for seeking redress in the courts. Second, because of the difficulty of litigating these matters and because litigation is a slow path to a solution, this Article proposes that law schools seek to address it directly by changing and improving their current pedagogical approach to bar passage.

This Article motivates the need for new solutions to the problem of racial and ethnic bias in the bar examination by (1) demonstrating the historicity of the long-standing use of race and ethnicity to exclude people from communities of color from joining the profession; (2) explaining how the courts and state bars have attempted to resolve this problem starting in the 1980s and 1990s; and (3) reviewing contemporary empirical research to demonstrate that the problem persists even today--one's race or ethnicity affects one's bar passage rate.

In response to this ongoing problem, the Article reviews potential litigation strategies that could be used to force state actors involved in the bar examination to eliminate its racial and ethnic bias. There are at least three roadblocks to the litigation approach:

1. Legislative immunity protects state supreme courts from suit;

2. Title VII of the Civil Rights Act is not applicable to state supreme courts, state bars, and the state board of bar examiners in relation to the requirement that attorneys take and pass the bar examination; and

3. decisions relating to licensing are immune from prosecution.

At the same time, there appear to be at least four paths around these roadblocks:

1. Legislative immunity does not necessarily extend to agents of the state supreme court like the state bars and state boards of bar examiners;

2. claims under the Equal Protection and Due Process Clauses of the Constitution are justiciable;

3. Title VII is applicable to the state supreme courts, state bars, state boards of bar examiners, and National Conference of Bar Examiners (“NCBE”) when they are hiring attorneys to work for them; and

4. the public may be able to sue the NCBE on a third-party beneficiary cause of action.

In addition, recognizing that legal action is not, in most instances, a strategy for immediate change and that immediate change is necessary here, the Article concludes by explaining recent empirical research on bar passage pedagogy and outlining a pedagogical solution to the problem that law schools could readily, and immediately, implement to improve bar passage outcomes for students from communities of color.

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As we have seen, it is possible to improve student outcomes on the bar examination by changing the way we approach bar preparation in law school. At the same time, we have seen that the litigation approach offers opportunities for using the justice system to address bias in the examination. In light of the continuing racial and ethnic bias in the bar examination, law schools should be seen as having a duty to adopt pedagogical changes that improve bar passage rates for students from communities of color. Such action can immediately improve bar outcomes for examinees from communities of color and immediately begin to redress the systemic racial and ethnic bias in the system. At the same time, examinees from communities of color who fail the bar examination may want to seek legal counsel to determine if it is possible to fix the system. In so doing, they would join an impressive group of advocates for justice.