FOR FAIRNESS AND EQUITY, WE NEED TO ABOLISH THE BAR EXAM
Earlier this year, law students from across the country graduated in the midst of the novel coronavirus pandemic. Our finals were online and graduation ceremonies were anything but ceremonial. We were forced to forgo tradition and make do. What didn’t change was the last fragment of a legal profession stained with inequalities and racism: the bar exam.
In the United States, the bar exam has not always been the gateway to the legal profession that it is today. Apprenticeships and oral exams were used by states to regulate new attorneys. Only in the last century has a formally administered exam become the norm.
The push for an exam came as a result of a growing number of people of color and immigrants desiring to practice law. Members of the profession did whatever they could to stop these aspiring attorneys from joining the ranks of the all-White legal profession. Theron Strong, a former judge of the New York Court of Appeals, warned of an “inf lux of foreigners” becoming lawyers. The American Bar Association itself was once a White male-only fraternity that voted to only admit “worthy members” in an effort, as its membership chairman said, to keep “pure the Anglo-Saxon race.”
The racial gap in law schools was reinforced to limit the number of non-White students who could attend. Even when those students were able to complete law school, the hurdles continued with the exam. The bar exam is only a piece of the racist history of the legal profession, but it is still a remnant of that awful past that exists today.
While no longer explicitly racially discriminatory, the bar exam creates a de facto racist system. To prepare for the exam, applicants spend thousands of dollars for bar preparation courses requiring months of their time. Many cannot afford these luxuries but must endure them to enter the profession. There is no question that these egregious considerations impact mostly non-White applicants.
People of color have had centuries of discriminatory and racist policies aimed at them, creating modern economic inequalities. This translates to a minuscule number of non-White students entering law school and taking the bar. In California, 68 percent of all attorneys are White, but White residents are only 41 percent of California’s population. Meanwhile, Latinos make up 7 percent of all of California’s lawyers but 35 percent of the state’s population. And California attorneys are only 4 percent Black and 13 percent Asian despite those groups making up a larger percentage of the population.
The discriminatory impact of the bar exam should be more than enough to convince states that a new licensing regime is necessary. However, the exam itself represents no functional application to the practice of law.
No attorney practices all of the 18 subjects the bar tests, some of which are not even California law. Its only use is as a relic of a time past, meant to further guard entry into the already heavily guarded legal profession.
Abolishing the bar exam is the necessary first step for attorney licensure reform. Students will already have completed three years of legal education, passed a state-required ethics test and passed an extensive state-required background check. Upon graduation, those students will be able to practice law pending other requirements such as short-term attorney supervision. This reform measure has been championed by the advocates with the national movement for diploma privilege.
In July, the California Supreme Court, which determines how California attorney applicants are licensed, heard from applicants for nearly three hours about how it should reconsider the exam.
Despite the overwhelming majority supporting diploma privilege, the court ignored us. It changed the date of the exam for
The American Bar Association was once a White maleonly fraternity that voted to only admit “worthy members.”
a second time, moved the test online and reduced the passing score — but twice denied retroactive admission for those applicants who previously scored above the new pass score. Justices did not take a single suggestion offered to them.
The movement for diploma privilege and reformed licensing is not limited to those of us who just took the exam. A reformed system is supported by law school students, graduates, professors, deans and even state legislators. Every administration of the bar exam that goes by, more and more ready and willing attorneys are left unable to practice. The need for reform is not just widely supported but in dire need of urgency.
Lawyers are called on to be zealous advocates in the pursuit of justice, but many are denied that opportunity because of historically racist barriers still thriving today. For the sake of equity and fairness in the legal system, a significantly reformed structure for licensing California’s attorneys is necessary. The creation of a more just legal profession begins with ridding our state of this irrational testing. Let my cohort of applicants finally be the last to undergo this glorified hazing ritual and, once and for all, abolish the bar exam.
Yousif,