Wednesday, August 4, 2021
Professor Deborah Jones Merritt has posted an article on the Best Practices for Legal Education Website: Racial Inequity on the Bar Exam. In this article, she points out disparities among results for racial groups: "Stark racial disparities mark our profession’s licensing system. Last year, 88% of White candidates passed the bar exam on their first try. For BIPOC candidates, pass rates were significantly lower: 66% for Black candidates, 76% for Latinx candidates, 78% for both Hawaiian and Native American candidates, and 80% for Asian candidates. These racial disparities have existed for decades. Why do they persist? And why do we, as a profession, tolerate them?"
The main solution she offers is dealing with the stereotype threat. "Test-takers who belong to groups that our culture stereotypes as low-performing on a particular test will perform less ably than they would absent that stereotype."
I offer a different solution--better teaching methods.
These disparities in bar exam results are unacceptable, but it is questionable that dealing with them through the "stereotype threat" is the answer. Just look at the criticisms of stereotype threat in the Wikipedia article. For example, "According to Paul R. Sackett, Chaitra M. Hardison, and Michael J. Cullen, both the media and scholarly literature have wrongly concluded that eliminating stereotype threat could completely eliminate differences in test performance between European Americans and African Americans. Sackett et al. argued that, in Steele and Aronson's (1995) experiments where stereotype threat was mitigated, an achievement gap of approximately one standard deviation remained between the groups, which is very close in size to that routinely reported between African American and European Americans' average scores on large-scale standardized tests such as the SAT." Similarly, "A meta-analysis by Flore and Wicherts (2015) concluded that the average reported effect of stereotype threat is small, but also that the field may be inflated by publication bias. They argued that, correcting for this, the most likely true effect size is near zero."
Instead of using a questionable social science approach, law schools should use a direct approach--use better teaching techniques. There is a mountain of general educational research on teaching approaches, as well as on legal education. For example, research has shown that on the average minority students entering law school lack metacognitive skills. Such skills are necessary for success in law school and in passing the bar.
I have discussed these issues in depth in:
1. How to Help Students from Disadvantaged Backgrounds Succeed in Law School, 1 Texas A & M Law Review 83 (2013)
2. Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals (2020) [for law students]
4. How To Succeed in Law School (2019) [for law students]