Monday, May 15, 2017

Seeing Race on the Bar Exam by Dan Subotnik

Owing minority groups little for their support in the election, Donald Trump is not likely to go out of his way for them.  It is not surprising, then, that others are taking the lead.   

Deborah Merritt Jones is one of these.  A leader in legal education, the chaired professor at Ohio State Law School has recently issued a challenge to the profession, Validity, Competence and the Bar Exam.  Merritt takes bar examiners to task for devoting too much attention to doctrine, which students will promptly forget and, even more important, for ignoring “fact- gathering, negotiation, and interviewing,” skills that they will need in practice.  Lamenting that law schools are not teaching these skills in their classes, Merritt argues for a more practice-focused bar exam that tests these very skills. In short,  

This flawed exam puts clients at risk [and] subjects applicants to an expensive, stressful process. . .  The mismatch between the exam and practice, finally, raises troubling questions about the exam’s disproportionate racial impact. How can we defend a racial disparity if our exam does not properly track the knowledge, skills, and judgment that new lawyers use in practice?

For purposes here, I will concede the validity argument. Further, I will admit that the skills at issue can be tested in some reasonable manner.  The question I raise has to do with race, Without explicitly holding that bar results would be different, Merritt is quick to use racial disparities to help justify a “new” bar exam.  

But does this make sense?  If not, what are the implications? Consider: if  (a) law schools provided solid grounding in research and interview skills and (b) a bar exam was built thereon, and (c)  the bar examiners applied the same pass rate, on what basis could we imagine a different demographic outcome?   Do different groups have different intuitions in these areas?  Whether the exam is valid or not, it has to be that differences in preparation for exams are what create differences in results.   It seems fair to conclude, then, that race is being used as a hook to snare support for Merritt’s proposal.     

It could conceivably, beyond a hook, be a ploy and part of a larger problem. Black writers in books such as  Stanley Crouch, the “All-American Skin Game,  or Decoy of Race” and  Richard Thomson Ford’s  “The Race Card,” have themselves complained of the speciousness of race talk by black authors.  White authors, according to Orlando Patterson, earn no higher marks for honest talk.

Can it be surprising under the circumstances that a strong backlash could take place?  And is the best illustration not the election of Donald Trump?

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