Putting the Bar Exam on Constitutional Notice: Cut Scores, Race & Ethnicity, and the Public Good
67 Pages Posted: 7 Sep 2022
Date Written: August 31, 2022
Nothing to see here. Season in and season out, bar examiners, experts, supreme courts, and bar associations seem nonplussed, trapped by what they see as the facts, namely, that the bar exam has no possible weaknesses, at least when it comes to alternative licensure mechanisms, that the bar exam is not to blame for disparate racial impacts that spring from administration of this ritualistic process, and that there are no viable alternatives in the harsh cold world of determining minimal competency for the noble purpose of protecting the public from legal harms. All a lie, of course.
But rather than challenging our assumptions, state bar associations and bar examiners keep going as business as usual. We might even say that it’s just the cost of doing business. Yes, some bar applicants will pay the price, they admit, by not passing bar exams, but protecting the public good demands that we be demanding, that we not yield to temptation to soften our approach. We can never be too cautious when it comes to protecting the public. After all, the public good is at risk. Or is it?
This Article challenges conventional stories told about the bar exam. Part I describes the background of the bar exam as currently used by most jurisdictions to include a hypothetical “Socratic” conversation as a prelude to understanding the bar exam and its impact on demography and the public good. Part II catalogues stories we tell to justify our recurrent resort to bar exams as the penultimate source of wisdom in making licensure decisions. Part III exposes fallacies behind many of these justifications. Part IV analyzes whether we might look to common law tort principles as a tool for exposing whether the bar exam, by producing recurrent well-known racial disparate impacts, might suffer from constitutional infirmity. Part V concludes with an exploration of some common-sense alternatives to the behemoth of the bar exam to better protect the public.
Keywords: bar exam, cut scores, race, equal protection, constitutional law, torts, battery, human dignity, disparate impact
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