Abstract

Excerpted From: Mary Szto, Barring Diversity? The American Bar Exam as Initiation Rite and its Eugenics Origin, 21 Connecticut Public Interest Law Journal 38 (Spring, 2022) (214 Footnotes) (Full Document)

According to the 2020 census, the U.S. population is over 42% minorities, however, only 14% of the legal profession is. In 2020, the first-time bar taker pass rate was 88% for Whites, 80% for Asians, 78% for Native Americans, 76% for Hispanics, and 66% for Blacks. The COVID-19 pandemic has also thrown state bar exams into crisis. Some states allowed graduates a diploma privilege and many administered online exams. At the same time, anti-Asian violence, disproportionate COVID deaths in communities of color, Black Lives Matters protests, and the Capitol Insurrection have further exposed systemic racism in the U.S. This article will argue that racial disparities in first-time bar passage rates are not coincidental but rooted in the eugenics origin of the bar exam. The bar exam is an initiation rite that bars diversity in the legal profession. The exam requires costly isolated study for several months that privileges young White graduates with few family or financial obligations and those who have assimilated to such status.

Eugenics theory held that Whites were superior, and others should be denied access to property ownership, education, and the legal profession. Therefore, to diversify the legal profession, we must acknowledge these origins in eugenics and institute the diploma privilege or create sequenced exams or other alternatives that do not require costly isolated study and bar preparation courses.

This article will first discuss what states did to administer the bar during the pandemic. Then, the article will discuss the state of racial diversity in the legal profession and chronicle the American Bar Association's (“ABA”) efforts since the 1970s to diversify the profession. Then, we will delve into the history of the bar exam as an initiation rite. I will discuss how bar admissions standards arose amid teachings about Anglo-Saxon White supremacy in the late 1800s and early 1900s. Minorities were excluded from most law schools, and there was widespread fear of immigrants diluting the U.S. White population and the legal profession.

I will also discuss anthropological findings that initiation rites mark entry into a privileged group. These findings signify identity change through a costly, lengthy, communal, and painful event. They involve a separation from society, a liminal period, an ordeal, and then reincorporation into society. The bar exam follows this pattern. Many minority candidates cannot afford months of unpaid isolated study, much less multiple bar attempts. This is because of racial wealth gaps fueled by eugenics-inspired federal redlining policies from the 1930s. In pre-pandemic 2019, “the typical White family [had] eight times the wealth of the typical Black family and five times the wealth of the typical Hispanic family.” “The median young Black family has almost no wealth ($600). In contrast, the median young White family has a wealth of $25,400.” These wealth gaps will only be exacerbated by the pandemic.

I conclude that the pandemic and heightened awareness of systemic racism in the U.S. provide an opportunity to make permanent changes to bar admission and the diversity of the profession. Three years of law school are already a ritual liminal period with multiple ordeals. I propose either the diploma privilege or an open book exam focused on essential subjects for all candidates, and specialty exams for some. This can be administered frequently and online, and candidates, including current law students, need only retake subjects that they have not passed. All alternatives should not have a disproportionate financial and social burden on candidates of color, including costly bar preparation courses. Then, the bar exam can be part of a strategy to diversify the profession, and not a bar to it. Thus, this initiation rite can be liberating, transformative, and healing. Otherwise, we will continue to see huge racial disparities in first-time bar passage rates and crushing financial and familial burdens on minority candidates. Reform will also benefit all bar candidates.

[. . .]

The coronavirus pandemic and heightened awareness of systemic racism provide an opportunity to make permanent changes to bar admission. During the pandemic, states temporarily enacted the diploma privilege and online exams. I propose that these changes become permanent because, among other reasons, the bar exam has been a ritual that has barred diversity to the profession.

In this article I first discussed the state of diversity in the legal profession today, diversity initiatives within the American Bar Association, and the history of admission to the bar. I then discussed initiation rites, and how studying for the bar exam closely resembles the pattern used in many initiation rites: separation and isolation from family and society, liminality for several months, an ordeal, and reincorporation into society. However, it is precisely this pattern that disadvantages many minority candidates.

Today, the American legal profession does not reflect the racial diversity of the US population. Despite diversity initiatives within the ABA and elsewhere since the 1970s, although over 42% of the U.S. population is composed of racial minorities, only 14% of the legal profession is. Minority candidates pass the bar at significantly lower rates on the first attempt and must retake it to pass. Unfortunately, this is not a coincidence, but part of the sad legacy of eugenics theories from the late 1800s and early 1900s. Eugenicists not only limited U.S. immigration in 1924 from outside northern and western Europe, but instituted standardized testing. Their teachings also led to racial residential segregation, which through redlining and governmental policies helped create today's huge racial wealth and achievement gaps.

As a result of this legacy, the bar examination's ritual aspect privileges those who have the economic means not to work for several months while preparing for the bar; and those who do not have or can postpone significant social and family commitments. Due to today's racial wealth gaps, this disproportionately affects minority candidates and other economically deprived populations.

How can the bar examination be an aid and not hindrance to diversity? Initiation rites can be transformative by creating community and reflection on sacred texts. If we have a bar exam, it can be transformative as well. In order for this to happen we must acknowledge its origins in eugenics theories of White superiority. We must also decrease the financial, familial, and social cost of the bar exam. We must focus the period of reflection not on legal minutiae but on principles of access to justice.

Both the diploma privilege and online exams can help eliminate the structural barriers of the bar exam. I have proposed a multi-organizational task force, including ritual experts, that will issue a report on the history of the bar exam, and structural changes such as an open-book exam with required essential subjects for all candidates, and additional certification exams for specialties such as criminal law, family law, securities law, etc. Subjects may be taken as students master them in law school, and a candidate need only retake subjects that that candidate has failed. These exams should be administered frequently, and even on-line, so there are not long gaps between when a candidate can take the exam and when they can be admitted to practice law.

We may also consider the incorporation rituals of the Inns of Court, which focused on communal eating, moots, and discussion.

With these and other changes, we will hopefully see a bar admission process that welcomes candidates of color and does not bar them from the profession. Then, bar admission can be a transformative ritual that creates diversity; and not one that bars it. These changes will benefit all bar candidates, the profession, and the public. The pandemic has shown that we can make swift changes to bar admission. Let's appropriate these lessons to truly make the legal profession diverse.

Teaching Professor, Syracuse University College of Law. B.A., Wellesley College. M.A.R., Westminster Theological Seminary. J.D., Columbia Law School.