Should the bar exam be eliminated? There is a lot packed into that question about the efficacy of the bar exam, whether it serves to assure a minimum level of competence for admitted lawyers or whether it’s a waste of time, a barrier to keep the number of lawyers down and/or a rite of passage. But is it discriminatory?

The recommendation to eliminate the admissions testing requirement comes amidst cascading charges that reliance on the Law School Admission Test hurts minority applicants. The proposition is sharply contested by many friends of diversity….  Some find  it stigmatizing to be told they can’t do as well on the test as White applicants. But given that the case against the test appears to have persuaded the wordily named Council of the ABA’s Section of Legal Education and Admissions to the Bar, let’s assume for the sake of argument that the LSAT does indeed represent an unfair barrier to entry to the legal profession.

Moreover, the ABA admits that minority bar examination passage rates continue to lag. A 2021 study found that a rising percentage of non-White students at a law school is correlated with a reduction in the school’s bar passage rate. Hmmm.

I can’t speak for anyone else, but when somebody does the “hmmm” thing, it sends shivers up my spine, especially when it’s a Yale law prof who couldn’t possibly be unbrilliant, right?

But what is it about the LSAT, the bar exam or both that causes minority passage rates to “lag”? Sure, the outcome stats are easy enough to calculate, even if language like “minority” conflates a great many categories that may have little to nothing to do with each other and certainly are not inherently more different from “white,” whatever that means, test takes than, say, Nigerians or Pacific Islanders. But I digress.

Just because there is a disparity in outcome does not mean there is anything discriminatory about the test. One would hope any prawf would know this, having read Griggs v. Duke Power in law school. Is it evidence of discrimination? You bet, but it serves as a starting point to ascertain why there are disparate numbers on the back end, not proof that the front end, the test, is discriminatory. That’s the question in need of an answer, not the assumption to be taken for granted.

If students have attended law school, were they not in the same classrooms together, whether white or minority? Did they not hear the same words emit from the professors mouth? Did they not read the same hornbook? Did they not take notes?

But this is the bar exam, which every lawyer knows is learned during a bar review course and not law school. Did they not take the bar review course? Well, it’s expensive, unless you become the class sales rep and get it for free. Then again, law school is expensive, and this is just one more cost to becoming a lawyer. Are minorities en masse unable to afford bar review courses? Do they, alone among law students, not realize the value of these courses to passing the bar?

Or is it something else?

Maybe the solution is to eliminate the bar exam, but before leaping to the most extreme fix, wouldn’t it be far more effective to ascertain whether the problem is that the bar exam is discriminatory, and if so, to determine whether it can be fixed to not be discriminatory? But that requires actually determining the cause of the disparate outcome, and that might not turn out to be what some very passionate folks want it to be. Why look at the real cause of problems when you might not get the answer you want? Isn’t it easier to just eliminate the bar exam altogether than risk the realization that discrimination isn’t the cause of disparate outcomes?