White candidates are significantly more likely to pass the bar exam than candidates of any other racial/ethnic group. This disparate racial impact is well known and appears in every state where the issue has been studied. Our licensing process, in other words, disproportionately excludes people of color from the profession. At the same time, the current bar exam lacks sufficient evidence validating its connection to minimum competence. This combination is alarming: If the bar exam were an employment test, it would have been struck down decades ago. As a profession committed to diversity and inclusion, we need to ameliorate this racial barrier. The first step is to develop a valid licensing process. Then, if a disparate impact remains, we need to develop educational and other supports that will level the playing field for candidates of color.
The articles and reports below document the disparate racial impact of the bar exam.
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.
Mitchel Winick, et al.,, Examining the California Cut Score: An Empirical Analysis of Minimum Competency, Public Protection, Disparate Impact, and National Standards (2020)