Will California, easing bar examination, see extra legal professionals of colour?

Give California law grads diploma privilege amidst coronavirus

For more than three decades, California has maintained one of the country's most stringent test standards for law students, hoping to practice law in the country's most populous state.

But this month, the California Supreme Court overseeing the prosecution agreed to lower the exam's passing score. This is a win for law school deans, who have long hoped that the change would increase the number of lawyers for blacks and latinos.

After virtual meetings with law degree graduates and deans, the state's highest court this month permanently lowered the score, allowed law degree graduates to temporarily work with preliminary licenses under the supervision of the pandemic, and allowed graduates to remotely take the bar exam early filed October.

"There is absolutely no evidence that higher scores lead to better lawyers," said Jennifer L. Mnookin, dean of the UCLA School of Law, a long-time advocate for lowering the scores. "There is significant evidence that it reduces the variety of the bar."

Forty percent of the California population are white, 60 percent are colored people. According to a new report from the State Bar of California, 68% of Californian lawyers are white and only 32% are colored people.

Dean Erwin Chemerinsky of UC Berkeley School of Law said the court's lawsuit would not have come without the outbreak of the corona virus.

"I think they tried to find a compromise that takes into account the particular circumstances of the health crisis," he said.

The Black Lives Matter movement could also have influenced the court.

"On the one hand, there has been pressure to lower the score for some time," said Chemerinsky. "On the other hand, the racially different impact of the higher score could have been particularly important to the court given the events of the past few months."

The court did not give the deans and students what they asked for: a bar exam in September and the right to practice permanently with a diploma but without an exam as a lawyer.

Chemerinsky said he was not surprised that the court refused to grant graduates a full “diploma privilege”. In contrast to other states, California has law schools that are not or only accredited by the state. Some of these schools have a graduation rate of less than 10%, the dean said.

The proliferation of COVID-19 forced the bar exam to be canceled in July, and the court had to decide when the next exam would take place and whether it could be taken remotely. The court used this opportunity to discuss the bar exam score.

"The issue of reducing scores has been around for a long time and the court never stopped thinking about it," said a source who was not authorized to speak publicly but was familiar with the decision-making process.

Some speculated that the results of the February bar exam may have influenced the court.

In February, a time when many graduates who failed the bar for the first time passed it again, only 26.8% of all test participants passed.

From the first-time test takers from law schools that were run by the American Bar Assn. Accredited and considered the best schools in the state, 51.7% of white graduates passed, compared with 5% of black graduates, 32.6% of Latinos, and 42.2% of Asians.

Whether the exam is culturally biased has been a question for journals over the years, and critics have written that it doesn't measure the real skills required to be good lawyers.

The average score for passing a national bar exam was 1350. That of New York was 1330. That of California was 1440 until the court permanently reduced it to 1390. Both Chemerinsky and Mnookin estimated that a change would increase the success rate by 10%. The court did not apply the new score retrospectively.

Victor D. Quintanilla, a professor at the Maurer School of Law at Indiana University and an additional faculty member at the Department of Psychological and Brain Sciences, said that the success rates for the California Bar Association for all applicants have decreased, but the impact of the particularly high test in California has decreased Scores have disproportionately hurt racial and ethnic minorities.

He is part of a foundation-funded team of legal professors and social psychologists who have been studying the results of the bar exam in California for 10 years. He said 19.5% of white test takers never exceeded the bar even after several attempts. In contrast, he added, 46.9% of black test takers and 30.5% of Latinos never pass.

Quintanilla, who also chairs the Assn. In the American Law Schools section on the empirical study of legal education, blacks and Latinos said that they generally perform worse than white counterparts in standardized tests with high stakes such as the SAT.

Studies attribute the differences to differences in educational opportunities and other socio-economic factors. Social psychologists have also found that colored people worry about whether the results could reinforce negative stereotypes in standardized tests, and that fear affects their performance, Quintanilla said.

"There are social psychological studies that show that even if colored people take an exam and do well, that exam may not reflect their true potential," said Quintanilla, who holds a law degree and a doctorate in social psychology.

The team, which studies the bar association, which includes faculties from Stanford University and the USC, will present the results to the California Supreme Court next month. Quintanilla said he was happy that the court lowered the score, but added, "The data shows that there are significant benefits to going further."

The Supreme Court from seven Member States has two white judges, a black judge, a Latino, and three Asian Americans. Chief Justice Tani G. Cantil-Sakauye and Judges Goodwin H. Liu and Joshua P. Groban took part in a three-hour long-distance conversation with 2,700 law students and graduates. Liu, Groban and Justice Mariano-Florentino Cuéllar attended a separate meeting with deans from the law school.

The court declined three years ago to lower the score, which is the second highest in the nation after Delaware. In a written decision, the court found that the success rate had risen and fallen over the decades, with success rates for first-time test subjects from 1989 to 1997 in 2001 lying between the top 60th and middle 70th percentiles from 2006 to 2013.

"The passing score was not controversial during those periods," the court said. It added that the success rate data did not support the adjustment of the score, but asked the status bar to investigate further.

Janet L. Brewer, a law firm when the court first considered lowering the score, had expressed concerns at the time that a sharp drop could result in incompetent people becoming lawyers. But the lawyer said the court-approved case was "fairly irrelevant."

In a letter to the bar earlier this month calling for the score cut, the court spoke of finding “the safest, most humane, and most practical” options for admitting law graduates to the pandemic.

"Some graduates have lost job offers," the court said. “Many are on the verge of losing health insurance, are unable to find a job to pay bills, or are afraid of deportation if they cannot enter the bar in time to keep job openings. Many more have student loan payments due in mid-November, but without a legal license and the ability to work, they fear late payments. "

The judges also instructed the lawyers to develop the preliminary licensing program that will allow 2020 California graduates to practice under the supervision of licensed attorneys by February 2022.

"This timeframe offers 2020 graduates several options to take the exam of their choice by February 2022 and wait for the exam results," the court said.

The California Bar Association is the regulatory authority of the California Supreme Court and submits changes to the Professional Code and Bar Exams to the court for review. The court has the final say on the audit results, as does most state courts across the country.


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