New Study Reveals Cal Bar Exam Discriminates Against Minorities
A significant research study shows that the minimum passing score, also known as the cut score, on the California Bar Exam, excludes minorities from admission to the bar at a disproportionately high rate. The study aimed to examine the effect of the bar exam cut score on the racial and ethnic composition of new attorneys joining the legal profession in California.
The study examined two vast data sets for reaching its conclusions. The first data set included de-identified scores of 85,727 examinees who sat for 21 administrations of the California Bar Exam from 2009-18 and the race and ethnicity of each examinee. The second data set included the American Bar Association (“ABA”) discipline data from up to 48 U.S. jurisdictions from 2013-18 and the bar exam cut scores in each jurisdiction.
Looking at the first data set, the study observed that the number of attorneys of color who would have passed the bar exam had lower cut scores been in effect during the 11 years studied was significant.
*At 1390, California’s recently reduced cut score, the number of examinees eventually passing the California Bar Exam would have increased by 3,760 examinees; of these, 1,675 would have been attorneys of color.
*At 1350, the median national cut score, the number of examinees eventually passing the exam would have increased by 8,734 ̶ 3,876 of which would have been attorneys of color.
*At 1330, New York’s cut score, the number of examinees eventually passing the exam would have increased by 10,564 and California would have had an additional 4,665 attorneys of color.
Interestingly, despite the increase of minority test-takers sitting for the California Bar Exam over these 11 years, the State Bar of California reported in a recently released 2019 Report Card on the Diversity of California‘s Legal Profession that the state’s attorney population does not reflect the state’s diversity.
The study analyzed and examined six years of disciplinary statistics from 48 jurisdictions in the second data set to determine the accuracy of the commonly repeated claim that a high bar exam cut score helps protect the public from lawyers without the minimum competency to practice law.
Proponents of higher cut scores would be surprised to find that the study determined that no relationship exists between the selection of a cut score and the number of complaints filed, formal charges, or disciplinary actions taken against attorneys in the jurisdictional subject data set. Even more potentially surprising although not statistically significant, the data reflects the opposite relationship ̶ states with higher cut scores have a slightly greater rate of complaints, charges, and actions.
This finding that no statistically significant relationship existed between the choice of cut score and disciplinary complaints raises substantial doubt about whether public protection is a rational basis for maintaining a particular cut score, especially when high cut scores also are shown to have the negative, disparate racial effects reported in the study.
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