Black Lives Matter and the Bar Exam

The Black Lives Matter movement has swept the country and the legal profession. While our country confronts dual public health crises of racism and pandemic, our law school graduates are faced with an unknown future with the legal profession and the bar exam. As academic support professionals, we have a role to play in helping graduates pass the bar and participate in transforming the law so that Black lives matter.

Many graduates are too distraught to face the bar exam, and we know they need hours of focused study and rule memorization to pass.  We also know that very few of the rules they will be memorizing are designed to dismantle racism. In fact, many of the rules tested on the bar exam entered through the common law at a time when Black people had “no rights which the white man was bound to respect”.  Dred Scott v Sanford, 60 US 393, 407 (1857).

To pass the bar exam, law school graduates need to understand that the law does not have a race-neutral history. When Black graduates, and graduates from low-income and non-white communities, try to answer bar exam questions based on their own values and experience, they often get the answers wrong.  When they are taught to see the questions, not from their own point of view, but from the point of view of those who wrote the rules, they often do better.

We should help our students memorize rules for the bar exam, but we also need to help them understand the origins of these rules in enabling institutional racism. Many of the bar exam questions are focused on issues related to large corporations, exchanges between merchants, and the interests of wealthy clients. With a legal history of racially restrictive covenants and segregation, Black people currently have less than ten percent of the wealth of whites. Few questions on the bar exam relate to police brutality, racial profiling, civil rights, low-income tenants, poverty law, employment law, consumer protection, or racial discrimination.

To make Black lives matter in the legal profession, we need to actively work to change the law school experience and the bar exam. Changing the content and the character of the bar exam is one step on this path. We must help our courts and bar examiners to become more responsive to the legal needs of Black communities.

When confronted with disparate pass rates for Black law school graduates, bar examiners often respond that the exam is race-neutral. In employment discrimination law under the Civil Rights Act, if a policy has a disparate impact, it must be justified as a business necessity.  However, this standard has not been applied to the bar exam.  The National Conference of Bar Examiners’ own studies indicate great disparities between what the bar exam tests and the skills lawyers need. These disparities often disadvantage Black law graduates and serve as a barrier to access to the legal profession. Rather than justifying these inequalities, we should find ways to eliminate them.

At this time, we must help our law graduates pass the bar exam as it is now. In order to pass this year’s bar exam, they should understand that the rules of law do not have a race-neutral history. In the future, we must also work together to create a path to the legal profession where Black lives matter.

(Guest Blogger - Beth Kaimowitz)