The faulty standard used for the California Bar Exam

Separate but equal ... strength and agility tests ... don't ask, don't tell ... the history and laws of the United States are full of examples of faulty "objective" metrics that were perceived as providing public protection based on the societal norms of their time. That is why the current arguments in favor of maintaining an artificially high minimum passing score for the California Bar Exam seem so easy to defend. After all, doesn't public protection require that the state license only the smartest and most capable lawyers, doctors, engineers, architects and other licensed professionals? How can "dumbing down the test" be in the best interest of public policy?

However, as lawyers and judges, we know and understand that public perception is not the legal standard that should be applied to professional licensure. That is why the California Supreme Court has unique original authority over the testing and licensing standards for lawyers. For the bar exam's purpose, the legal standard is defined as assessing "the minimum qualifications for the first-year practice of law."

The statutory criteria for state professional licensure through the bar exam is not to screen for the most experienced and capable lawyers, but to identify those candidates who have achieved and can demonstrate the basic qualifications to enter the profession of law in California ... as first-year beginners ... at the initial step of their professional career. As a state action enforced by the California Supreme Court, the bar exam serves as a pre-employment licensing exam that is expected to meet constitutionally defined standards for equal protection and not prove to have a disparate impact on protected classes under California law. Enforcement of these standards serves a critical role in providing access to justice and diversity of the profession.

Considering the first standard ... determining the minimum qualifications for the first-year practice of law in California ... the reported scoring of the July 2018 California bar exam determined that approximately 60 percent of law school graduates and 68 percent of lawyers already licensed to practice in another jurisdiction are unqualified for the first-year practice of law in California. As is widely reported, this is the highest bar failure rate in the country and the lowest pass rate in California in the past 67 years.

It is reasonable to question the validity of this outcome when California's July 2018 examinees actually outscored the nation on the Multistate Bar Exam. As reported by the State Bar, the mean scaled Multistate Bar Examination score on the July exam in California was 1404 compared with the national average of 1395. Furthermore, California examinees have outscored the national mean score on the Multistate Bar Exam every single year over the past 10 years. However, during this same period, the California scoring system appears to have artificially manufactured the lowest passing rate in the country by establishing a minimum passing score of 1440 when the national minimum passing score standard is 1350. No other major jurisdiction has a minimum passing score above 1360. New York, considered the most comparable bar exam jurisdiction to California, has a minimum passing score of 1330. For the California bar exam scoring to be valid, the argument would need to be made that practicing law in California is so unique and difficult that fewer than one-third of attorneys licensed and practicing in any other state, regardless of experience, can qualify as a first-year lawyer in California. Unfortunately, this argument is simply not rational.

The other commonly heard argument is that California's abnormally high passing score is necessary to protect the public from unqualified lawyers. However, based on a 2017 court-ordered analysis of the California bar exam scoring compared to all other U.S. jurisdictions, the State Bar determined that there is no relationship between a high minimum passing score and lawyer discipline.

Even more troubling, the same report determined that if the national standard of 1350 were applied in California, the passing rate of white examinees would increase approximately by 42 percent, Asians by 58 percent, Hispanics by 75 percent, and blacks by 114 percent. This disparity is a textbook definition of the type of "disparate impact" that the California Supreme Court has found unconstitutional in previous employment and housing cases.

In response to these concerns, the Supreme Court has ordered the State Bar to undertake additional studies of whether the current format and content of the bar exam reflects a measurement of the skills required for the modern practice of law. This is a critical and necessary initiative that should be fully supported by the bench, bar, and legal educators. However, completion of this type of study and the comprehensive and lengthy dialogue that will follow will take years to complete.

Given the "frightening results" of the July 2018 bar exam, as characterized recently by Chief Justice Tani G. Cantil-Sakauye, the question now being presented is whether the court should separate the two issues. By doing so, the court can first address whether the current 1440 minimum passing score is a valid measurement of the minimum qualification for the first year practice of law and subsequently consider whether changes in the content and format of the bar exam is warranted. It is well within the court's discretion to consider an adjustment of the minimum passing score on the basis of the already completed State Bar studies and the results of recent bar exams.

Protection of the public requires that California citizens have access to qualified lawyers who reflect the diverse communities of California, meet rigorous academic standards, pass a comprehensive moral character review, and pass the mandatory Multistate Professional Responsibility Exam. No one is arguing otherwise. Public protection also requires a bar exam minimum passing score that properly reflects the legal standard set by the court and that meets the constitutional requirements for equal protection for all examinees under the California Constitution.

Establishing the licensing standards to practice law in California is under the original jurisdiction of the California Supreme Court for a reason. The standards are too important to be based on surveys of a trade association that is arguably protecting its own economic interests by setting artificial entry barriers to future competition.

Finally, it is critical to note that adjusting the minimum passing score to meet the legal standard is not "dumbing down the test." Until the future validation studies are completed, the same rigorous, multi-dimensional bar exam will continue to be used. The test will not change. However, the uncontested facts on hand ... a disproportionate failure rate of otherwise qualified examinees when compared to national standards ... and the adverse impact on protected classes ... indicate that it is time for the bench and bar to encourage the Supreme Court to reconsider the current scoring of the California bar exam.