Cut Scores Impact Racial Diversity of Profession without Protecting Public

The UBE is spreading through the country faster than any legal education reform in recent memory.  A few short years ago, multiple people with information on Oklahoma's decision making thought the UBE would never happen in Texas, and following their lead, Oklahoma would also be one of the last states to adopt it.  Oklahoma disavowed scaling just a few years ago, and then, Texas followed the UBE lemmings.  Once Texas joined the crowd, the Oklahoma Supreme Court created a committee to study adopting the UBE.  One major question for the committee was whether the UBE, through scaling, would impact diversity.  The court also wanted to know if certain cut scores would impact diversity.  At that time, no one had a great answer.  No study looked at both the bar's impact on diversity along with cut score implications.  For Oklahoma, any information was even more irrelevant because Oklahoma was one of only a few states not scaling essay scores to the MBE.  The court proceeded to adopt the UBE without much information on that issue.

At that moment, there was a complete lack of information on critical topics.  Thanks to AccessLex and a team of researchers, we now have a quality study on cut scores' impact on diversity.  AccessLex offers grants for research on legal education issues.  You can read numerous interesting articles on their grant page.  The most recent article on California bar exam cut score is especially interesting.

The article Examining the California Cut Score:  An Empirical Analysis of Minimum Competency, Public Protection, Disparate Impact, and National Standards considers the impact of California's cut sore on diversity while also asking whether cut scores really protect the public from incompetent or unethical lawyers.  The analysis is very interesting.  I encourage everyone to ready the study.  We are in a unique period for bar exam reform and UBE expansion.  We should definitely ask whether the bar accomplishes its intended goal of protecting the public, especially if the impact functionally prohibits diversity of the profession.

(Steven Foster)