Each year the ABA publishes national bar pass data broken down by race/ethnicity and gender. These summaries, which are drawn from data supplied by law schools, report both first-time bar passage and "ultimate" passage. Ultimate pass rates are calculated two years after a class graduates from law school. Both categories count graduates admitted through diploma privilege as "bar passers." These reports regularly show that white candidates are more likely to pass the bar than candidates of color, whether measured by first-time pass rates or ultimate pass rates.

This article explains that, if current bar exams were subject to Title VII, they most likely would be struck down. The exams have a clearly disparate racial impact, they have not been sufficiently validated, and less discriminatory alternatives exist. The courts have held that bar exams are exempt from Title VII, but Professor Howarth argues that "the nondiscrimination values that animate Title VII disparate impact analysis for employers apply just as fundamentally to attorney licensing through principles of professional responsibility and legal ethics." Borrowing Title VII's framework, the article "undertakes that scrutiny, presenting evidence of the disparate impact of bar exams and their unproven validity, and suggesting feasible, less discriminatory modifications and alternatives. In other words, core professional responsibilities require consideration and adoption of valid licensing mechanisms that can reduce any disparate impact in who we permit to enter our profession, and who we exclude." 

A team of five researchers analyzed bar results for 85,727 candidates who took the California Bar Exam between 2009 and 2018. 80.5% of White candidates passed the exam after one or more tries. The eventual passage rates for candidates in other racial/ethnic groups were significantly lower: 71.5% for Asian candidates, 69.5% for Latinx candidates, and 53.1% for Black candidates.  "Over these 11 years," in sum, "every minority group eventually passed at a rate at least 9 percentage points lower compared to Whites." P 15.

This study also shows that selection of the cut score dramatically affects the racial/ethnic composition of candidates admitted to the bar. All racial/ethnic groups enjoy higher passing rates with a lower cut score, but the increase is greater for candidates of color. Reducing California's cut score from 1440 (the score used before fall 2020) to 1330 (the score used by New York), for example, would reduce the licensing gap from 27.4 points to 18 points. P 19. That "licensing gap" is the difference between the passing rate for White candidates and the passing rate for the lowest performing group of nonwhite candidates.

Reducing this licensing gap significantly affects the percentage of minority lawyers in the profession. If California had adopted a cut score of 1390 in 2009, rather than in 2020, it would have 3.9% more Black lawyers, 3.8% more Latinx lawyers, and 3.6% more Asian lawyers. P 23.

The authors of this study explain: "Using publicly available data, we analyze whether the ethnic makeup of a law school’s entering class correlates to the school’s first-time bar passage rates on the Uniform Bar Examination (UBE). We find that higher proportions of Black and Hispanic students in a law school’s entering class are associated with lower first-time bar passage rates for that school in its reported UBE jurisdictions three years later. This effect persists after controlling for other potentially causal factors like undergraduate grade-point average (UGPA), law school admission test (LSAT) score, geographic region, or law school tier. Moreover, the results are statistically robust at a p-value of 0.01 (indicating just a 1% chance that the results are due to random variation in the data). Because these are school-level results, they may not fully account for relevant factors identifiable only in student-level data. As a result, we argue that follow-up study using data relating to individual students is necessary to fully understand why the UBE produces racially and ethnically disparate results." 

This op-ed offers a concise overview of the bar exam's disparate racial impact, explores possible causes of those disparities, and suggests possible remedies.