[*] Associate Professor of Law, Touro College, Jacob D. Fuchsberg Law Center. A.B., 1975, Harvard University; J.D., 1980, Boston College Law School. I would like to thank Professor Beverly McQueary Smith and the National Bar Association for including me on a panel before which an earlier version of this Article was presented. I am indebted to panel members Dean Daniel O. Bernstine of the University of Wisconsin Law School and Dean Henry Ramsey, Jr. of Howard Law School for their helpful and inspiring comments. I would also like to express my thanks to Barbara Martinolich and Deborah Conquest for their valuable contributions as research assistants in the preparation of this Article. A very special thanks is reserved for my wife, Marjorie, whose penetrating intelligence, loving support, and encouragement made this Article far better than it otherwise would have been. Return to text.

[1] DAVID LEVERING LEWIS, W.E.B. DUBOIS: BIOGRAPHY OF A RACE 330 (1993). These lines were part of DuBois' compelling "Address to the Country" read by Lafayette Hershaw at the Second Meeting of the Niagara Movement on August 15, 1906. Id. The address ended with the reasoned demand: "Cannot the nation that has absorbed ten million foreigners into its political life without catastrophe absorb ten million Negro Americans into that same political life at less cost than their unjust and illegal exclusion will involve?" Id. Return to text.

[2] Any and all references in this Article to "people of color" or "minorities" is expressly intended to include Blacks or African-Americans, Latinos or Hispanic-Americans, and Asians or Asian-Americans. Return to text.

[3] See Daniel O. Bernstine, Minority Law Students and the Bar Examination: Are Law Schools Doing Enough?, B. EXAMINER, Aug. 1989, at 10, 10. From confidential discussions with several law school deans, Dean Bernstine recounts what he terms "unsubstantiated horror stories" about the poor performance of minority students. Id. For example, he writes:

I have been able to determine that for some recent bar examinations, zero out of eleven minority graduates of a particular law school passed the local bar . . . and at yet another school, zero out of eight passed the local bar. The schools involved are among the "better" law schools and, in fact, two of these three schools, in all likelihood would, by consensus, be ranked in the top thirty of American law schools.
Id.; see generally STEPHEN P. KLEIN & ROGER BOLUS, COMMITTEE OF BAR EXAMINERS OF THE STATE OF CALIFORNIA, MINORITY GROUP PERFORMANCE ON THE CALIFORNIA BAR EXAMINATION (1987); Katherine L. Vaughns, Towards Parity in Bar Passage Rates and Law School Performance: Exploring the Sources of Disparities Between Racial and Ethnic Groups, 16 T. Marshall L. Rev. 425 (1991); Armundo M. Menocal, III, Letter from the Chair, B. EXAMINER, Feb. 1991, at 2. Menocal writes:
Almost all examiners acknowledge that disproportionate pass rates exist. Too few, however, actually know how great the gap is between men and women, minorities and non-minorities, and other discreet [sic] groups. . . .
California keeps and publishes race, gender, and law school bar passage rates. These confirm that major disparities exist. On a recent July examination, Anglo first time bar-takers from ABA-approved law schools passed the California Bar examination at approximately eighty percent. For Asians, it was only sixty-five percent. Latinos . . . between fifty-five and sixty percent. The Black bar passage rate is at fifty percent. Menocal, supra, at 2-3. Return to text.

[4] See, e.g., Stephen P. Klein, On Testing: How To Respond to the Critics, B. EXAMINER, Feb. 1986, at 16, 23 [hereinafter Klein, On Testing] (concluding that the bar exam is "neither widening nor narrowing the gap among groups . . . [because a]nalyses of this issue show that the differences in performance level among racial/ethnic groups on this state's bar exam parallel the size of the differences among them in law school grades and admission test scores"). Klein states that,

[i]n short, the bar exam neither widens or narrows the differences among groups that were present before they took the exam.
Differences among racial groups on the bar exam also parallel differences among them at other key points in the educational pipeline, such as graduation from high school and college. The bar exam simply reflects an accumulated educational deficit. It does not create or exacerbate it. Doing away with the exam would no more cure this problem than would throwing away the scale change your weight. Stephen P. Klein, Bar Examinations: Ignoring the Thermometer Does Not Change the Temperature, 61 N.Y. ST. B.J., Oct. 1989, at 28, 30 [hereinafter Klein, Bar Examinations] (citations omitted). See also Delgado v. McTighe, 522 F. Supp 886, 894 (E.D. Pa 1981) (rejecting a claim of racial discrimination in the grading of bar examinations and quoting the report of a defense expert witness: " 'The differences in the percentages failed will be eliminated only when the blacks as a group . . . come to the examination as well prepared as are the whites.' ") (citations omitted). Return to text.

[5] See generally Maurice Emsellem, Racial and Ethnic Barriers to the Legal Profession: The Case Against the Bar Examination, 61 N.Y. ST. B.J., Apr. 1989, at 42; Henry Ramsey, Jr., Symposium, National Conference on Minority Bar Passage: Bridging the Gap Between Theory and Practice, 16 T. MARSHALL L. REV. 419 (1991); Dannye Holley & Thomas Kleven, Minorities and the Legal Profession: Current Platitudes, Current Barriers, 12 T. MARSHALL L. REV. 299 (1987); Linda E. Dávila, The Underrepresentation of Hispanic Attorneys in Corporate Law Firms, 39 STAN. L. REV. 1403 (1987); Klein, On Testing, supra note 4; John Pierre et al., Racial Disparities in Bar Examination Performance: An Hypothesis, 40 LA. B.J. 483 (1993). Return to text.

[6] The consequences of discriminatory bar exams are extremely significant. See, e.g., NEW YORK STATE BAR ASSOCIATION, PROPOSED STUDY OF THE BAR EXAMINATION (1991). After noting the large numerical differences in passage rates, the authors concluded:

The societal impact of this discrepancy cannot be overstated. First, the disproportionate failure rate affects the hiring and retention of minority law graduates in all areas of the profession. Second, these rates may substantially discourage minority college graduates from seeking admission to law school, thus com pounding the problem of law-school recruitment as minority enrollment in college drops nationwide. Third, and perhaps most important, the level of minority representation in the profession has a significant impact on public confidence in and respect toward the justice system.
Id. at 1. See also THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, REPORT ON ADMISSION TO THE BAR IN NEW YORK IN THE TWENTY-FIRST CENTURY—A BLUEPRINT FOR REFORM 11 (1992) [hereinafter REPORT ON ADMISSION TO THE BAR IN NEW YORK]. While reiterating the concerns reflected in the New York State Bar Association's report, the authors write that "because many minority lawyers serve the under-represented, legal services to the poor have been especially hard-hit by the disparities in bar passage rates between whites and minority groups." Id. at 13.

The California Committee of Bar Examiners appointed a special multiracial subcommittee to examine the disproportionality in the bar passage rates of minorities and whites. The subcommittee concluded that "a substantial increase in the minority representation in the profession is one of the greatest challenges facing the legal profession in California and must be addressed by the profession as a whole as rapidly as possible." MICHAEL R. YAMAKI ET AL., COMMITTEE OF BAR EXAMINERS OF THE STATE BAR OF CALIFORNIA, MINORITY PASSING RATES ON THE BAR EXAMINATION 24 (1988). Return to text.

[7] See, e.g., Delgado, 522 F. Supp. at 886. In that case, the plaintiffs, three African-Americans and two Hispanics, alleged that the Pennsylvania Board of Bar Examiners intentionally manipulated the required passing score in order to discriminate against minorities. Id. They also argued that

[t]he allegation that Blacks have been excluded by the Board from the practice of law in Pennsylvania is not new. Frankly, some of the statistics are shocking. For the ten year period from 1933 to 1943, no Black was admitted to the practice of law in Pennsylvania. . . . [F]rom July 1950 to the end of 1952, thirty Black candidates from Philadelphia County took a total of forty-three examinations, some individuals being examined two or more times, and . . . only six of them passed.
Id. at 886-87. See also GERALDINE R. SEGAL, BLACKS IN THE LAW: PHILADELPHIA AND THE NATION (1983). In discussing the nature of this problem, Segal cites a 1973 study by Lani Guinier, a University of Pennsylvania Law School Professor at that time. The study, which was conducted before indicia of color were eliminated from the records kept by state bar examiners, documented the failure rates of black candidates as follows:

California

(no year given)56% of blacks and Latins failed

24% of nonminorities failed

District of Columbia

June 1973 184 of 200 blacks failed (92%)

Georgia

1972 41 of 41 blacks failed (100%)

Illinois

August 1972 30 of 40 blacks failed (75%)

March 197312 of 16 blacks failed (75%)

Nebraska

June 1972 5 of 10 blacks failed (50%)

January 1973 1 of 9 blacks failed (11%)

Ohio

1973 11 of 29 blacks failed (38%)

Virginia

1970 24 of 30 blacks failed (80%)

Id. at 11. Return to text.

[8] From the limited information available, it also appears that the bar exam has a discriminatory impact on women. Recent figures from Iowa indicated an 11% difference in the passage rate between men and women in the June, 1987 administration of the Iowa Bar Examination, and a 14% difference in the passage rate in the December, 1987 administration. REPORT ON ADMISSION TO THE BAR IN NEW YORK, supra note 6, at 13; see also Arthur E. Ryman Jr., Women and the Bar Examination: Thinking like a Woman Lawyer, 37 DRAKE L. REV. 79 (1987-88). Interestingly, Ryman notes that the female graduates of Drake University Law School who failed the Iowa Bar Exam on the subject dates had better academic records, on average, than their male classmates who failed the exam. Ryman, supra, at 79; see also Stephen P. Klein, An Analysis of the Relationships Between Bar Examination Scores and an Applicant's Law School, Admissions Test Scores, Grades, Sex, and Racial/Ethnic Group, B. EXAMINER 1980, at 14, 17. The author notes that "[f]emale applicants did slightly less well on the MBE [multistate bar examination] portion of the examination than would have been expected on the basis of their LGPAs [law school grade point averages] and LSAT [Law School Admissions Test] scores. For example, 7% more females than males passed the essay, but 5% more males than females passed the MBE." Id. Although Klein characterizes this difference as "slight," it is important to note that the net effect resulted in a 12% swing downward from the position in which the females should have been on the basis of LGPAs, LSAT scores, and essay performance. See generally infra part IV.B.3. Return to text.

[9] Menocal, supra note 3, at 3; see also SEGAL, supra note 7, at 10-11 & n.41. According to Segal, the National Conference of Bar Examiners did not maintain any data on the race of those candidates who either took or passed the various state bar examinations and was unable to refer Segal to any other sources that did. SEGAL, supra, at 10-11 & n.41; see also REPORT ON ADMISSION TO THE BAR IN NEW YORK, supra note 6, at 12 ("California is the only state which regularly collects and analyzes data concerning the minority pass rate."). Return to text.

[10] Menocal, supra note 3, at 3. Return to text.

[11] See generally Bernstine, supra note 3; MASSACHUSETTS BAR ASSOCIATION, REPORT OF THE COMMITTEE ON BAR ADMISSIONS, THE BAR EXAMINATION: IS IT FAIR? (1989) [hereinafter MASSACHUSETTS BAR REPORT]. The Committee concluded, after a frustrating and ultimately unsuccessful effort to verify and quantify the nature of the bar passage problem among minorities, that

[a]lthough we found very few answers or reasons for the low passage rate, and in fact little concrete statistical evidence that a significant variance between majority and minority exam takers exists, other than anecdotally, we nonetheless believe that the questions raised herein and our recommendations are sound, and can serve as a basis for further study and analysis. . . .
In spite of an exhaustive attempt to establish the actual pass/fail rate for minority bar exam takers in Massachusetts, the Committee was unable to obtain data sufficient to quantify the minority pass rate for any specific year. However, we have no reason to conclude that the minority pass rate is any better or worse here in Massachusetts than any other state in the nation. MASSACHUSETTS BAR REPORT, supra, at 6-8. Return to text.

[12] See also Menocal, supra note 3, at 3; Bernstine, supra note 3, at 10 ("[J]urisdictions are careful to protect the confidentiality of a particular school's bar passage rates and will, in most instances, release data to a school about only its graduates.").

The problem of data collection is further complicated by the fact that many jurisdictions do not maintain any records of graduates by school. In those jurisdictions which do maintain such records, however, the records are often kept only for graduates of the schools in that particular jurisdiction or for schools which have a substantial number of graduates taking that jurisdiction's examination.
Bernstine, supra, at 15 n.1. Return to text.

[13] Menocal, supra note 3, at 3. Return to text.

[14] Id. Return to text.

[15] Id. ("[T]his kind of data collection is an accepted fact from law school admissions to employment records."). Return to text.

[16] Id.; see also REPORT ON ADMISSION TO THE BAR IN NEW YORK, supra note 6, at 11. Return to text.

[17] Menocal, supra note 3, at 3; see infra part III; see also Pierre et al., supra note 5, at 487. In attempting to discover the reason for the racially disparate bar performance of bar candidates in Louisiana, the authors hypothesized that, given the essay format of Louisiana's Bar Exam, it might be possible "for the bar examiners unconsciously to pick up on the race of the writer from their usage, syntax, grammar and word choice. And is it possible that these examiners, again unconsciously, would allow their lower expectations of a particular writer to influence their assessment" of the writer['s] score?" Pierre et al., supra note 5, at 487 (citations omitted).

This theory is not so unreasonable as it may appear, given the results of a study conducted in California. In that study, 80 elementary school teachers were given a series of eight essay exams to grade. Id. at 486. All of the exams had been previously determined by educational experts to be of equal quality—the only difference among the essays was the name assigned to each one. Id. Some essays were given so called "red-blooded all-American" sounding names, others were given wimpy or unpopular sounding names. Id. The teachers gave the papers significantly different grades, with the red-blooded all-American names receiving the highest grades, and the wimpy or unpopular sounding names receiving the lowest. Id. at 486-87. Such studies and questions fuel suspicions that extraneous matter such as word choice, or even a name, can significantly, albeit unconsciously, affect the substantive evaluation of quality. Return to text.

[18] See Menocal, supra note 3, at 3. Return to text.

[19] Id. Return to text.

[20] See generally KLEIN & BOLUS, supra note 3 (California); YAMAKI ET AL., supra note 6 (California); REPORT ON ADMISSION TO THE BAR IN NEW YORK, supra note 6; HARI SWAMINATHAN & H. JANE ROGERS, AN INVESTIGATION OF RACIAL AND ETHNIC BIAS IN THE FLORIDA BAR EXAMINATION, FINAL REPORT SUBMITTED TO THE RACIAL AND ETHNIC BIAS STUDY COMMISSION OF THE FLORIDA SUPREME COURT (1991); MASSACHUSETTS BAR REPORT, supra note 11. Return to text.

[21] See, e.g., REPORT ON ADMISSION TO THE NEW YORK BAR, supra note 6, at 12. The Committee found that in New York State, the significance of the disproportionality between whites and minorities was "sobering and should occasion much concern" and concluded that "[t]he extant research in other jurisdictions indicates that the bar examinations in those states have a discriminatory impact on minority applicants and may also discriminate against female and older applicants." Id. (citations omitted). See also SWAMINATHAN & ROGERS, supra note 20, at 28. In evaluating the essay portion of a number of prior administrations of the Florida Bar Exam, the Commission concluded: "In the February administration, all essays showed potential bias against minority candidates. The performance of the minority candidates was substantially lower than the performance of the Whites. For the July administration, one of the three essays showed potential bias against the minority candidates." Id. Return to text.

[22] See REPORT ON ADMISSION TO THE BAR IN NEW YORK, supra note 6, at 14. This study emphasized that

[s]uch data collection is a necessary antecedent to the identification of any defects in the content, design, and/or administration of the bar examination. The goals of data collection are to identify any components of the testing process which are unrelated to the practice of law and which have a disproportionate adverse impact upon minority applicants.
Id. Return to text.

[23] Id. at 11; see also SWAMINATHAN & ROGERS, supra note 20, at 30. The report recommended that "[t]he Florida Board of Bar Examiners obtain racial/ethnic information on candidates for the Bar Exam so that performance levels of majority and minority candidates can be monitored." SWAMINATHAN & ROGERS, supra note 20, at 30. Return to text.

[24] Henry Ramsey Jr., Law Graduates, Law Schools and Bar Passage Rates, B. EXAMINER, Feb. 1991, at 21, 21. Therein Dean Ramsey notes that on the basis of the LSAC study,

[f]or the first time, an accurate determination of the bar passage rate among various discrete groups; e.g., men and women, minorities, graduates of large and small law schools, members of low and middle income families, graduates of private and public law schools, and the like, can be achieved over several administrations of the bar examination and in all states.
Id. Return to text.

[25] See, e.g., Anne R. Carey & Suzy Parker, Blacks in the Legal Profession, USA TODAY, Feb. 20, 1995, at A1. In 1983, there were 651,000 lawyers and judges in America, of whom 17,577, or 2.7%, were black. Id. Ten years later in 1993, there were 815,000 lawyers and judges in America, of whom 22,820, or 2.8%, were black. Id. This represents an increase of just 0.1% in 10 years!

The lack of any significant change in minority representation in the legal profession is highlighted by the statement of the great Charles Hamilton Houston, the first general counsel of what later became the independent NAACP Legal Defense Fund: "According to the 1930 census there were 1230 Negro lawyers in the United States in 1930 as against 159,735 white lawyers." Charles H. Houston, The Need for Negro Lawyers, 4 J. OF NEGRO EDUC. 49, 49 (1935). This means that from 1934 to 1993, a period of almost 60 years, the percentage of black lawyers increased from 0.7% to 2.8%, or by only 2.1%. The lion's share of this increase occurred during the period from 1970 to the present and was spurred in large part by the advent of affirmative action. See SEGAL, supra note 7, at 5-9. The dismantling of affirmative action, a current popular political goal, portends a deceleration of the meager gains in representative proportions which black lawyers have achieved. Return to text.

[26] The Bar Passage Rates study

has been endorsed by the Conference of Chief Justices, National Conference of Bar Examiners, American Bar Association Section of Legal Education and Admissions to the Bar, National Asian Pacific American Bar Association, and the Council on Legal Education Opportunity. [Moreover b]oards of law examiners in Alabama, Arizona, California, Colorado, Florida, Maine, Maryland, Mississippi, New York, North Carolina, Texas and Wisconsin have already agreed to fully cooperate with the study.
Ramsey, supra note 24, at 21-22. Return to text.

[27] SEGAL, supra note 7, at 24 (citations omitted); see, e.g., William L. Martin, The Women and Minorities Study: The Results Are In, ARKANSAS LAWYER, Apr. 1992, at 51, 51 (observing, from his study results, that "[e]ighty percent of the white attor neys work in segregated offices"). Thus, as of 1992, 80% of white lawyers in Arkansas worked in offices that had no minority attorneys at all. Martin, supra, at 51. Return to text.

[28] REPORT ON ADMISSION TO THE BAR IN NEW YORK, supra note 6, at 14. Return to text.

[29] Ramsey, supra note 24, at 21. Return to text.

[30] Id. at 23. Although well-intentioned and an extremely valuable contribution to the extant knowledge in this area, the LSAC study, even when completed, will be of limited value. This is because its statistical base consists of only three classes of graduates and thereby is limited in terms of the range of its informational base. Id. This is true even though the retrospective module will focus on the graduates of the classes of 1988 and 1989, while the prospective module will focus on those students who entered law school in the fall of 1991 and thus were members of the graduating class of 1994. Id. This limited statistical base is further exacerbated by the fact that the study will terminate with the class of 1994 and, at least presently, there are no plans to continue monitoring future classes in order to measure the effect of reforms currently being discussed by members of the bench, bar, and academia. Id. By its own terms, the study is designed to provide information to "assist students, educators, bar examiners and administrators, and others to better understand the national bar passage situation, and, as a result, to develop methods for increasing the success rates of students—particularly minority students—in law school and on the bar examination." Id. The study will clearly make a significant contribution to the information available to all of these identified groups, but without further and continuous monitoring, there is no way to determine whether the anticipated new "methods for increasing the success rates of students—particularly minority students—in law school and on the bar examination" will bear any tangible fruit in terms of increases in law school performance or bar exam passage rates. Id. Return to text.

[31] See REPORT ON ADMISSION TO THE BAR IN NEW YORK, supra note 6, at 14. The authors conclude:

Collection of such data on a long-term, continuous basis is absolutely crucial to the process of evaluation and reform of the examination and the admissions process. Only by collecting such data across administrations of the examination can the impact of reform upon minority pass rates be monitored, and further reform effected.
That an inadequate examination should prevent the entry of capable minority students into a profession which desperately needs their talents—and that the Board of Law Examiners has failed to compile the information necessary to confront these problems effectively—impresses this Committee as a shortcoming of significant proportions. Id. at 14-15. Return to text.

[32] Currently most states do not collect data on the race or ethnicity of their bar exam applicants. See Menocal, supra note 3, at 3 ("[T]he overwhelming majority of all states have avoided the collection of race-ethnic data. Frankly, some jurisdictions are unwilling to collect [such] information."); see also REPORT ON ADMISSION TO THE BAR IN NEW YORK, supra note 6, at 11; MASSACHUSETTS BAR REPORT, supra note 11, at 7-8.

Regarding failure of the New York State Board of Law Examiners to collect racial or ethnic data on its bar applicants, the authors of the New York Bar report observed, "The Law Examiners, however, to avoid the appearance of discrimination, have purposefully refused to compile these statistics." REPORT ON ADMISSION TO THE BAR IN NEW YORK, supra note 6, at 11. In the Massachusetts report, the authors noted that they had been unable to quantify the exact number of minority applicants who took and failed the Massachusetts Bar Exam because "[t]he Committee discovered . . . that the bar examiners do not collect information as to race or ethnic background. . . . The law schools were reluctant to provide any information because of privacy concerns for the graduates." MASSACHUSETTS BAR REPORT, supra note 11, at 7-8. Return to text.

[33] There are three principal federal statutes in this area:

(1) The Fair Housing Act, Pub. L. No. 90-284, 82 Stat. 81 (1968) (codified as amended at 42 U.S.C. § 3601 (1988 & Supp. V 1993)) (prohibiting discrimination in the sale or rental of residential housing on the basis of race, color, religion, sex, handicap, familial status, or national origin).

(2) The Equal Credit Opportunity Act, Pub. L. No. 93-495, 88 Stat. 1521 (1974) (codified as amended at 15 U.S.C. §§ 1691-1691f (1994)). Although this Act was originally passed to address the problem of discriminatory lending against women, it was expanded in 1976 also to prohibit discrimination based on race, color, religion, or national origin. See Equal Credit Opportunity Act Amendments of 1976, Pub. L. No. 94-239, Sec. 32, 90 Stat. 251 (1976) (codified at 15 U.S.C. § 1691 (1994)).

(3) The Community Reinvestment Act, Pub. L. No. 95-128, 91 Stat. 1147 (1977) (codified at 12 U.S.C. §§ 2901-07 (1994) (requiring regulated federal institutions to serve the convenience and needs of their communities for deposit and credit; inter alia, regulated institutions must meet the statute's standards in order to receive permission to buy another bank or to open an additional branch facility). Return to text.

[34] See Pub. L. No. 94-200, 89 Stat. 1125 (1975) (codified as amended at 12 U.S.C. §§ 2809-10 (1994)); Financial Institutions Reform, Recovery and Enforcement Act of 1989, Pub. L. No. 101-73, Sec. 1211, 103 Stat. 183, 524-26 (1989) (codified as amended in scattered sections of 12 U.S.C. (1994)). Return to text.

[35] See Glenn B. Canner & Delores S. Smith, Expanded HMDA Data on Residential Lending: One Year Later, 78 FED. RESERVE BULL. 801 (1992). Return to text.

[36] See ALICIA H. MUNNELL ET AL., MORTGAGE LENDING IN BOSTON: INTERPRETING THE HMDA DATA 2 (Federal Reserve Bank of Boston, Working Paper No. 92-7, 1992). Return to text.

[37] See, e.g., Anthony D. Taibi, Banking, Finance, and Community Economic Empowerment: Structural Economic Theory, Procedural Civil Rights, and Substantive Racial Justice, 107 HARV. L. REV. 1463 (1994); see also Peter P. Swire, The Persistent Problem of Lending Discrimination: A Law and Economics Analysis, 73 TEX. L. REV. 787 (1995). Although he acknowledges that he shares the economists' view that government regulation of lending discrimination is unnecessary because the market will deter, correct, and punish lenders who voluntarily forego profits or income in order to indulge their prejudices, Swire does observe that "[t]he Boston Fed Study, based on by far the best data yet available, was hailed by true believers and others as definite proof of continuing discrimination in mortgage lending." Swire, supra, at 808 & n.120 (citing Paul Wiseman, Bankers Grumpy Despite Strong Profits, USA TODAY, Oct. 19., 1992, at B6) (quoting Federal Reserve Governor John LaWare, who stated that the study provided "conclusive evidence of de facto discrimination"). Return to text.

[38] See, e.g., Swire, supra note 37, at 798 (citing Gary S. Becker, The Evidence Against Banks Doesn't Prove Bias, BUS. WEEK, Apr. 19, 1993, at 18; Stan Liebowitz, A Study That Deserves No Credit, WALL. ST. J., Sept. 1, 1993, at A14). Return to text.

[39] See, e.g., Schware v. Board of Bar Examiners, 353 U.S. 232 (1957); see also In re Griffiths, 413 U.S. 717 (1973); Martin-Trigona v. Underwood, 529 F.2d 33 (7th Cir. 1975); Hawkins v. Moss, 503 F.2d 1171 (4th Cir. 1974), cert. denied, 420 U.S. 928 (1975). Return to text.

[40] 353 U.S. 232 (1957). Return to text.

[41] Id. at 239 (citations omitted). Return to text.

[42] 517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S. 940 (1976). Cases which followed Tyler include Jones v. Board of Comm'rs of the Ala. State Bar, 737 F.2d 996 (11th Cir. 1984); Woodard v. Virginia Bd. of Bar Examiners, 598 F.2d 1345 (4th Cir. 1979); Parrish v. Board of Comm'rs of the Ala. State Bar, 533 F.2d 942 (5th Cir. 1976); Delgado v. McTighe, 522 F. Supp. 886 (E.D. Pa. 1981); Newsome v. Dominique, 455 F. Supp. 1373 (E.D. Mo. 1978); Pettit v. Gingerich, 427 F. Supp. 282 (D.Md. 1977). Return to text.

[43] Tyler, 517 F.2d at 1092. Return to text.

[44] Id. Return to text.

[45] Id. at 1093. Return to text.

[46] Id. at 1092. Return to text.

[47] Id. Return to text.

[48] Id. at 1105 (Adams, J., dissenting). Return to text.

[49] Id. at 1092. Return to text.

[50] Id. It is interesting to note that, although it was not pointed out by the court in Tyler, "even blacks graduating from top-ranking 'Ivy League' law schools did not fare well." SEGAL, supra note 7, at 11.

All of the white Yale law school graduates who took the Georgia test passed, but the two black Yale graduates failed. All of the white Harvard law school graduates passed and the one black Harvard person failed.
All of the white Columbia law students passed and the three black graduates from Columbia failed. Id. at 11-12 (citation omitted).

Therefore, even those black applicants who had high LSAT scores and LGPAs, as evidenced by their admission to and graduation from a range of Ivy League law schools, and who presumably had received relatively good educational preparation and experience, uniformly failed that administration of the Georgia Bar Examination. Return to text.

[51] Tyler, 517 F.2d at 1093. Return to text.

[52] Id. Return to text.

[53] Id. Return to text.

[54] Id. at 1094. In support of this theory, the plaintiffs introduced the deposition testimony of a professional linguist, who held a Ph.D. in the field and had spoken and published widely about Black English, including its history and usage in America. Id. The linguist indicated that there was such an English variant, distinct and identifiable, and that under extreme stress, such as a bar exam, an individual who had been raised in this dialect might well revert to it notwithstanding years of formal training in standard English. Id. Return to text.

[55] Id. Return to text.

[56] Id. The black appellants argued that, notwithstanding this acknowledgment by their own expert, the use of Black English in a bar examination essay response could still be the basis for overt discrimination because even if the grader did not recognize it as a racial characteristic, he would still react "negatively because he conceives it to be incorrect." Id. Recent studies provide support for the appellants' arguments. See discussion supra note 17. Return to text.

[57] Tyler, 517 F.2d at 1093. Return to text.

[58] Id. at 1093 n.1. Return to text.

[59] Id. Return to text.

[60] Id. at 1095. Return to text.

[61] Id.; see Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e (1996). As construed by the then-operative, but now-overturned, case of Griggs v. Duke Power Co., Title VII prohibited the use of any testing process or procedures, regardless of intent or motive, that had the effect of disproportionately excluding members of a protected minority class of persons, unless such tests were "demonstrably a reasonable measure of job performance." 401 U.S. 424, 425 (1971). Under the EEOC guidelines interpreting Title VII, which were in place at the time:

The use of any test which adversely affects hiring, promotion, transfer or any other employment or membership opportunity of classes protected by Title VII constitutes discrimination unless: (a) the test has been validated and evidences a high degree of utility as hereinafter described, and (b) the person giving . . . the particular test can demonstrate that alternative suitable hiring, transfer or promotion procedures are unavailable for his use.
29 C.F.R. § 1607.3 (1974). Return to text.

[62] 401 U.S. 424 (1971). Return to text.

[63] Id. at 425. Return to text.

[64] Tyler, 517 F.2d at 1096. Return to text.

[65] Id. Return to text.

[66] Id. Return to text.

[67] Id. Return to text.

[68] Id. The appellants actually posited that the Bar Examination was a type of super-employment test, in that failure resulted not simply in the loss of a specific job, transfer, or promotion, but rather in the inability to practice law anywhere in the entire state. Id. Nonetheless, the court was not persuaded. Id. Return to text.

[69] Id. Return to text.

[70] See id. at 1099. The court went on to observe, "The hallmark of a rational classification is not merely that it differentiates, but that it does so on a basis having a fair and substantial relationship to the purposes of the classification." Id. Return to text.

[71] Id. at 1098. In fact, the court referred to its holding in this regard as "our refusal to measure the constitutionality of the Georgia Bar Examination by Title VII standards." Id. at 1098-99. Return to text.

[72] See, e.g., Allen v. City of Mobile, 466 F.2d 122 (5th Cir. 1972), cert. denied, 412 U.S. 909 (1973); Geduldig v. Aiello, 417 U.S. 484 (1974); Communications Workers of Am. v. AT&T, 513 F.2d 1024 (2d Cir. 1975), vacated, 429 U.S. 1033 (1977); Wetzel v. Liberty Mut. Ins. Co., 511 F.2d 199, (3d Cir. 1975), vacated and remanded, 424 U.S. 737 (1976); Gilbert v. General Elec. Co., 519 F.2d 661 (4th Cir. 1975), rev'd, 429 U.S. 125 (1976). Return to text.

[73] Tyler, 517 F.2d at 1099. Return to text.

[74] Id. (citing Jefferson v. Hackney, 406 U.S. 535 (1972); James v. Valtierra, 402 U.S. 137 (1971); comparing Geduldig v. Aiello, 417 U.S. 484 (1974)). Return to text.

[75] Id. at 1100. Return to text.

[76] Id. Return to text.

[77] Id. Return to text.

[78] Id. The court noted that when this showing has been met, it shifts the burden of proof to the defendant to demonstrate that, in fact, "invidious discrimination was not among the reasons for his actions." Id. However, the court concluded that it did not have to decide whether this standard applied in the instant case because of its conclusion that the appellee-examiners had carried their burden of demonstrating the absence of any genuine issue of material fact regarding intentional racial discrimination. Id. Return to text.

[79] Id. Return to text.

[80] Id. at 1101. Return to text.

[81] Id. at 1101-02 (citing Armstead v. Starkville Mun. Separate Sch. Dist., 461 F.2d 276 (5th Cir. 1972)) (holding that the Graduate Record Examination was an unconstitutional method for selecting primary and secondary school teachers since it failed to meet the standard of a rationally supportable examination established therein). Return to text.

[82] Id. at 1102. Return to text.

[83] Id. Return to text.

[84] Id. Return to text.

[85] Id. The court also rejected appellants' argument that the Board of Examiners should be required to use model answers and predetermined standards in grading, since these were merely suggestions for improvement and did not go to the question of whether the examination was reasonable. Id. Similarly, the court rejected appellants' arguments that the Board of Examiners was acting unreasonably in at least two other respects: 1) because its practice of determining which failing exams were to be reviewed and regraded was based not on a definitive numerical cutoff, but rather on the exercise of an examiner's own discretion, and 2) because it employed the practice of comparing examination results with the law school records of the examinees. Id. at 1103. Return to text.

[86] Id. Return to text.

[87] Id. Return to text.

[88] Id. at 1103-04. Return to text.

[89] Id. at 1104. The court noted in this regard that, even if it were to make the "generous assumption that one out of every hundred applicants who take the examination fail[s] when they should have passed due to arbitrary grading, the probability that the same individual would be the victim of error after two reexaminations is literally one in a million." Id. (citation omitted). The court was also impressed with the fact that the hearing process itself could be susceptible to error. See id. Accordingly, on balance they saw little advantage to providing such a review and certainly no constitutional error in not providing one. See id. at 1104-05. Return to text.

[90] Id. at 1095. Return to text.

[91] Id. Return to text.

[92] Id. at 1097. Return to text.

[93] Id. at 1099 (citation omitted). Return to text.

[94] Id. at 1101. Return to text.

[95] Id. Return to text.

[96] Id. at 1102 (quoting an unreported opinion of the court granting summary judgment in one of the consolidated actions comprising the appeal at issue). Return to text.

[97] Id. at 1103. Return to text.

[98] Id. at 1093 (quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962)). Return to text.

[99] Id. at 1108. Interestingly, the dissent also cited Poller, as had the majority, to support this proposition. Return to text.

[100] Id. at 1105. Return to text.

[101] Id. at 1106. Return to text.

[102] Id. Return to text.

[103] See infra note 108 regarding the impermissibility of presumptions of racial inferiority. Return to text.

[104] Tyler, 517 F.2d at 1105. This applicant pool consisted, in part, of at least six blacks who were recent graduates of three of the finest law schools is the country, and yet each of them failed this Bar Examination. See supra note 50. Return to text.

[105] Tyler, 517 F.2d at 1106 (citations omitted). Return to text.

[106] Id. There is no record of either an official inquiry or investigation by the Georgia State Board of Bar Examiners as a consequence of this 100% bar failure rate of all 40 black applicants. This is particularly striking in light of the fact that among that group were six black applicants who had been graduated from Harvard, Yale, and Columbia law schools. See SEGAL, supra note 7, at 11-12. The dissent noted, in this regard, that there was "the absence of an investigation, or indeed any effort, by the administrators of the state program in question to ascertain whether the seemingly purposeful discrimination is intentional in fact or is explainable by the circumstances." Tyler, 517 F.2d at 1106. Return to text.

[107] Perhaps there are more benign explanations for the Board of Bar Examiners' nonreaction to such unanimous failure, but I am at a loss to think of one. As the dissent in Tyler pointed out, there was, and to a large extent still is today, a widespread presumption, particularly in states such as Georgia, of the intellectual inferiority of blacks as a race. This presumption strikes me as the most, in fact the only, logical explanation for the Board's apparently passive reaction to such stark bar results. Although private individuals are free to harbor such racist presumptions about the intellectual capacity of an entire race of people, such an attitude is absolutely unacceptable as a basis for either state action or inaction. Again, as the dissent in Tyler pointed out, with respect to state action, "a presumption of racial inferiority is simply not permissible." Id. Return to text.

[108] Id. Such presumptions have been a part of our common American heritage since before the founding of the Republic and continue to haunt us to this day. See infra part V.B. Return to text.

[109] Tyler, 517 F.2d at 1105. Return to text.

[110] Id. at 1106. Return to text.

[111] Id. at 1093. The Board of Bar Examiners thus denied both that there was any actual racial animus and that, even if there were, there was no opportunity to act upon it since the examiners could not discover an applicant's race before grading his or her exam. Id. Return to text.

[112] 461 F.2d 276 (5th Cir. 1972) (holding that the Graduate Record Examination was an unconstitutional method for selecting primary and secondary school teachers). Return to text.

[113] Tyler, 517 F.2d at 1102. The test suggested that a rationally supportable examination should meet two standards: 1) be designed for the purpose for which it is being used, and 2) utilize a cutoff score related to the quality which the examination purports to measure. Id. Return to text.

[114] Id. Return to text.

[115] Id. Return to text.

[116] Id. at 1106. In reaching this conclusion, Judge Adams observed in a footnote that he did not mean "by this statement to impugn the integrity of the examiners. Rather, [he] suggest[ed] only that it is not appropriate to foreclose an attempt by plaintiffs to establish this fact." Id. at 1106 n.7. Return to text.

[117] 462 F.2d 1112 (5th Cir. 1973). Return to text.

[118] Tyler, 517 F.2d at 1106 (quoting Baker, 462 F.2d at 1114); see generally Beverly M.M. Charles, First They Came for the Teachers . . . : Competency Testing and the Decertification of Texas Teachers Issued Certificates Valid for Life, 12 T. MARSHALL L. REV. 1 (1986). But see Michael Rebell, Disparate Impact of Teacher Competency Testing on Minorities: Don't Blame the Test-Takers—or the Tests, 4 YALE L. & POL'Y REV. 375 (1986). Return to text.

[119] Tyler, 517 F.2d at 1102 n.11. As a consequence of this finding, the court had held that the appropriate standard of judicial review was one of strict scrutiny (requiring a compelling state interest) rather than merely of rational relationship. Id. Return to text.

[120] Of course, the majority found that there was no genuine issue of material fact on the issue of purposeful discrimination. Id. at 1093. However, in so doing, it relied unreasonably and without further explanation on the good faith word of the Bar Examiners themselves and their agents, without giving the appellants an opportunity to test such testimony and the credibility of the witnesses on cross-examination before a jury. See supra notes 57-59 and accompanying text. Return to text.

[121] 533 F.2d 942 (5th Cir. 1976). Return to text.

[122] Id. at 944. Return to text.

[123] Id. Return to text.

[124] Id. Return to text.

[125] Id. In addition, the plaintiffs presented evidence that notwithstanding the fact that blacks comprised over 25 percent of the population in Alabama, the number of black lawyers constituted less than 1% of the state population. Id. The plaintiffs argued that this disparity was caused, in part, by the discriminatory and unconstitutional Bar Exam. Id. Return to text.

[126] Id. at 947. Return to text.

[127] Id. Return to text.

[128] Id. The plaintiffs filed a motion to compel the production of those documents. However, without ruling on that motion, the trial court entered a summary judgment in favor of the Bar Examiners. The court found no material issue of fact and held that " 'under the circumstances . . . the disparity in percentage of failures among blacks as compared to whites has little weight and fails to make out a prima facie case sufficient to realign the burden of proof so as to require the Defendants to establish that the exams are not discriminatory.' " Id. at 945 (quoting the district court). Return to text.

[129] Id. at 948. Return to text.

[130] Id. Return to text.

[131] Id. Return to text.

[132] Id. at 949. The Bar Examiners defending this practice claimed that it was crucial to the compelling state interest in identifying attorneys and discouraging persons other than the actual applicants from sitting for the examination. Id. (citing the district court opinion). Return to text.

[133] Id. (citation omitted). Return to text.

[134] Id. at 949-50. Return to text.

[135] Id. at 950. "At the April 20 hearing, the appellee secretary of the Alabama Bar Association stipulated that 'there is no effort by affiant to match the photographs of applicants with the persons actually appearing for the bar examinations, and affiant knows of no one else who attempts to make such a match up.' " Id. at 950 n.8.

Clearly, this admission suggests that the proffered justification for requiring photographs—of deterring impostors from sitting for the Bar Examination—was, at best, disingenuous, and, at worst, a pretext for purposeful discrimination. The court found that such a practice "[o]bviously . . . makes it easier for those to discriminate who are of a mind to discriminate." Id. (citing Avery v. Georgia, 345 U.S. 559, 562 (1953)); see, e.g., Avery v. Georgia, 345 U.S 559 (1953) (involving a jury selection process that identified white jurors on white tickets and black jurors on yellow tickets); Whitus v. Georgia, 385 U.S. 545 (1967) (involving a jury selection process that designated blacks with an identifying code letter after their names); Anderson v. Martin, 375 U.S. 399 (1964) (involving a voting practice that racially identified a black candidate on the voting slate in the voting booth); Jones v. Smith, 420 F.2d 774 (5th Cir. 1969) (involving a jury selection process based on tax records that used different color forms for blacks and whites). Return to text.

[136] Parrish, 533 F.2d at 950. Return to text.

[137] Id. at 944 ("Statistics produced during the litigation showed, for example, that in the last ten bar examinations the passing rate for blacks had been 32% while it had been 70% for whites."). Return to text.

[138] Id. at 949. Return to text.

[139] 401 U.S. 424 (1971). Return to text.

[140] In Griggs, the Supreme Court had held that Title VII precluded the use, in the context of employment decisions, of tests or testing procedures that disproportionately excluded minorities, without regard to intent, absent a demonstration that such tests had been validated as demonstrating "a reasonable measure of job performance." Id. at 436. Return to text.

[141] 517 F.2d 1089 (5th Cir. 1975). Return to text.

[142] Id. at 1096 (citing 42 U.S.C. § 2000e(a)). Return to text.

[143] Parrish, 533 F.2d at 949. Return to text.

[144] Id. at 950. The documents in question consisted of the examination papers and graders' notes, which the plaintiffs wanted in order to see whether the papers of black and white exam takers with similar answers had, in fact, been graded differently. Id. at 947. Although the plaintiffs had moved to compel the production of these documents, the Board resisted and the court entered summary judgment in favor of the Board without ever ruling on the plaintiffs' motion. Thus the court held that it was necessary to remand on at least this issue "in order to permit the plaintiffs to complete their discovery as to matters on which the trial court had not acted prior to its final judgment." Id. at 948. Return to text.

[145] 563 F.2d 1130 (4th Cir. 1977), cert. denied, 435 U.S. 968 (1978). Return to text.

[146] Id. at 1131. Specifically, the evidence showed that plaintiff Spain, a June, 1971 applicant, had an average score of 70.5 and was failed by three examiners. Id. However, applicant number 129, a white June, 1970 applicant, received a score of 71.8 and was failed by three examiners but was then passed by the Board and admitted to practice. Id. Similarly, plaintiff Kelly, a February, 1971 applicant, received an average score of 69.6 and was failed by three examiners. Id. However, applicant number 10, a white February, 1971 applicant, received a score of 69.3 and was failed by two examiners but was then passed by the Board and admitted to practice. Id. Return to text.

[147] Id. Return to text.

[148] Id. (citing Bishop v. Wood, 426 U.S. 341 (1976), overruled as stated in Nichols v. City of Jackson, 848 F. Supp. 718 (S.D. Miss. 1994)). Return to text.

[149] Id. Additionally, the Fourth Circuit was concerned about whether the district court had even possessed the required subject matter jurisdiction to review the denial of admission of an individual to the state bar. Id. However, the majority of the court found it unnecessary to resolve this issue because they agreed that, even if the district court had possessed the subject matter jurisdiction, there was not sufficient proof to entitle the plaintiffs to individual relief in any case. Id. In fact, the court was divided on this question. Judge Hall wrote a separate, concurring opinion in which he stated that, while he agreed with the majority's holding on the merits, he was convinced that the district court did not, in fact, have the subject matter jurisdiction to review questions regarding the admission of individuals to the state bar. Id. at 1132. Judge Hall concluded that such disappointed individuals' proper recourse was to the state supreme court and then only to the United States Supreme Court. Id. at 1133. Return to text.

[150] Id. at 1132. No doubt, the court was also not impressed by the fact that both Spain and Kelley continued to fail on subsequent reexaminations. See id. Return to text.

[151] Id. at 1131. Return to text.

[152] 427 F. Supp. 282 (D. Md. 1977), aff'd sub nom. Pettit v. Ginerich, 582 F.2d 869 (4th Cir. 1978). Return to text.

[153] Id. at 294. Return to text.

[154] Id. at 290-91. Because the state did not record racial data on its bar applicants or require photographs during the years in question, plaintiffs' evidence for the existence of a racial disparity was based on information that they derived through an informal monitoring of the exam by black candidates. Id. at 290 n.4. That information suggested that between 1962 and 1972, the passage rate of whites was approximately 50%, while that of blacks was 6%. Id. Further, the plaintiffs alleged that for 10 of the 11 examination administrations between 1962 and 1973, approximately 50% of whites passed, while only 12% of blacks passed. Id. Lastly, the plaintiffs alleged that between 1962 and 1972, approximately 70% of whites eventually passed the exam after successive reexaminations, while only 20% of blacks eventually passed. Id.

In addition, one failed black bar applicant, Charles Marshall, testified by affidavit that at a post examination meeting between himself and one of the Bar Examiners, he discovered that all of his examination books were marked with a small "c". Id. at 291 n.5. Plaintiffs claimed that such markings suggested that the examination books of black applicants were marked and identified as belonging to a "colored" test taker before they were graded, id., like the different color forms used to distinguish the black plaintiffs in the jury selection cases. See supra note 134. When Marshall asked the Board member about the letter on his examination books, he was told that it represented an internal administrative code. 427 F. Supp. at 291 n.5. Additionally, the Pettit plaintiffs argued, as the Tyler plaintiffs had done, that the Bar Examiners could also identify the examination books of black applicants by their black writing style, also known as Black English. Id. at 291. Return to text.

[155] Id. at 291. The sole basis for this conclusive disposition of the plaintiffs' claim of intentional discrimination was the court's reliance on the deposition of Board Chairman Gingerich in which he represented that, based on their established procedures, the Board did not have the opportunity to discriminate because it could not tell the race of any individual bar applicant from that person's exam materials, seating charts, etc. See id. Regarding the affidavit testimony of the failed black applicant Marshall, who discovered that his examination books had been marked with a small letter "c," the court stated, "Apparently, plaintiffs wish this court to construe the marking as meaning colored." Id. However, without engaging in an analytical process, the court dismissed the possibility that such coding could exist, based on a defense affidavit regarding the proctors' practice during the examination of checking each test taker's name and seat number in order to check attendance. Id. at 292 n.6. Relying on that affidavit, the court concluded that "[t]here is nothing in the record to suggest, however, that the checking process has been used to gather racial information or that even if the process were so used, that the Board had access to the data." Id. at 291 n.5. Just as had been done in the Tyler case, the Pettit court relied presumptively on the statement of the Board members in their affidavits that they did not, and could not, know the race of any individual test taker during the grading process. The court's faith in the word of the Board members was so strong that it concluded that the "stringent procedures adopted by the Board . . . conclusively insure the anonymity of Bar examination candidates and concomitantly, the impossibility of discrimination." Id. at 292 (emphasis added). However, there was no evidence either requested or offered to determine the existence or purpose of an alleged internal Board administrative procedure that resulted in a small "c" being placed on all of Marshall's exam books. Moreover, due to the summary process disposition of this matter, the appellants were not afforded an opportunity to test the credibility of the testimony of the Bar Examiners on cross-examination before a jury. Return to text.

[156] Id. at 292. Return to text.

[157] Id. at 291-92. Return to text.

[158] Id. at 292-93. (citing Schware v. Board of Bar Examiners, 353 U.S. 232, 239 (1957); Tyler v. Vickery, 517 F.2d 1089, 1099-1101 (5th Cir. 1975), cert. denied, 426 U.S. 940 (1976); Whitfield v. Illinois Bd. of Law Examiners, 504 F.2d 474, 476 n.5 (7th Cir. 1974); Feldman v. State Bd. of Law Examiners, 438 F.2d 699, 705 (8th Cir. 1971); Chaney v. State Bar of Cal., 386 F.2d 962, 964-65 (9th Cir. 1967), cert. denied, 390 U.S. 1011, reh'g denied, 391 U.S. 929 (1968); Lewis v. Hartsock, No. 73-16 at 15-16 (S.D. Ohio, March 9, 1976); Shenfield v. Prather, 387 F. Supp. 676, 686 (N.D. Miss. 1974)). Return to text.

[159] Id. at 293. However, the court noted that such disproportionality is not irrelevant; rather, it simply is not "the sole touchstone of an invidious racial discrimination forbidden by the Constitution." Id. (citing McLaughlin v. Florida, 379 U.S. 184 (1964)). Return to text.

[160] Id. (citing Washington v. Davis, 426 U.S. 229, 248-52 (1976); Richardson v. McFadden, 540 F.2d 744, 748-49 (4th Cir. 1976)). Return to text.

[161] Id. Return to text.

[162] Id. (citing Tyler v. Vickery, 517 F.2d 1089, 1102 (5th Cir. 1975)). Return to text.

[163] Id. (quoting Shenfield v. Prather, 387 F. Supp. 676, 689 (N.D. Miss. 1974)). Return to text.

[164] Id. The court quoted the Shenfield court, which noted that a 70% cutoff score had been adopted by 16 of the 24 states whose practices were known to it. Id. There was no indication as to the cutoff scores of the other 8 states and what, if any, standards should be employed to distinguish the arbitrary, but popular, standards from the rational and constitutional ones. See supra notes 100-10 and accompanying text for discussion of the dissent's view in Tyler. Return to text.

[165] Tyler and Parrish were decided in Georgia and Alabama, respectively; Richardson was decided in South Carolina; and Pettit was decided in Maryland. Return to text.

[166] 522 F. Supp. 886 (E.D. Pa. 1981). Return to text.

[167] Id. Return to text.

[168] Id. Scores were raised between February, 1973 and July, 1976. Id. at 895. Return to text.

[169] Id. at 886. Return to text.

[170] Id. For example, the court observed, "For the ten year period from 1933 to 1943, no Black was admitted to the practice of law in Pennsylvania. . . . [F]rom July 1950 to the end of 1952, thirty Black candidates from Philadelphia County took a total of forty-three examinations, some individuals being examined two or more times, and . . . only six of them passed." Id. at 886-87. Return to text.

[171] Id. at 887. The court noted that as early as 1953, the Chancellor of the Philadelphia Bar Association appointed a Special Committee to "investigate the allegation of discrimination in the grading of bar examinations." Id. That committee, known as the "Hastie Committee," was chaired by the late William G. Hastie, a former Judge of the United States Court of Appeals for the Third Circuit. Id. & n.1. Subsequently, in 1970, the chancellor appointed Peter G. Liacouras, then Dean of the Temple University Law School, to chair another committee to "investigate the claims of possible discrimination against black law students." Id. (citation omitted). Return to text.

[172] Id. Return to text.

[173] Id. Return to text.

[174] Id. at 896. Return to text.

[175] Prior to 1972, the Pennsylvania Bar Exam was entirely essay in format. Id. at 888. In February, 1972, the Board added the Multistate Bar Exam (MBE) to its Bar Examination. Id. Return to text.

[176] Id. at 889-91. In support of its argument, the Board noted that the percentage of passing applicants "was much higher than it had been prior to the introduction of the MBE and significantly higher than that of other states." Id. at 891. The Board then contended that the scores were raised from 55 to 60 to remedy this relatively high passage rate. Id. at 891-92. Return to text.

[177] Id. at 890. The court noted, however, that, in setting the passing score for the February, 1972 exam administration, Judge Wilkinson, then Chairman of the Board of Bar Examiners, "believed that the appropriate passing grade for a combined essay-MBE examination should be somewhere between 60 and 70." Id. However, when Wilkinson asked the National Conference of Bar Examiners (NCBE) and the Educational Testing Service (ETS), which had prepared the MBE, to advise him regarding the establishment of a passing score, "neither organization was willing to recommend a passing score." Id. However, in setting the passing score, the court observed that "the Board has always been concerned exclusively with determining what grade in its view demonstrated minimum competence to practice law." Id. Return to text.

[178] Id. at 895 (citing Personnel Adm'r v. Feeny, 442 U.S. 256 (1979); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976)). The court also pointed out that, under the Supreme Court's decision in Arlington Heights, the plaintiffs were not required to show that the challenged action was motivated solely by an intent to discriminate, but they did have to show that "a discriminatory purpose has been a motivating factor in the decision." Id. (citing Arlington Heights, 429 U.S. at 265-66). Return to text.

[179] Id. at 896. Return to text.

[180] Id. Return to text.

[181] Id. at 895. Return to text.

[182] Id. Return to text.

[183] Id. at 894. Return to text.

[184] Id. at 895 (emphasis added). Return to text.

[185] There is no discussion whatsoever in the case regarding whether such a score level could be established. This absence was no doubt due to the court's observation that the expert had concluded that "[n]o matter where the passing point is set, except at the very bottom, more blacks than whites will be failed." Id. Return to text.

[186] Id. at 896. Return to text.

[187] Id. at 896-97. For example, one expert testified that, in his opinion, "the constitutional law essay questions used in 1972 were not fit for use by law schools and that the model answers to the two constitutional law questions were not correct." Id. Another expert testified, "In connection with the MBE, . . . a multiple choice test on legal subjects is of questionable validity because, unlike a mathematics multiple choice test, very few of the wrong answers are patently wrong and many of them are arguably correct." Id. at 897. Return to text.

[188] Id. Return to text.

[189] Id. at 896 (citing Washington v. Davis, 426 U.S. 229 (1976); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957); Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S. 940 (1976); Chaney v. State Bar of Cal., 386 F.2d 962 (9th Cir. 1967), cert. denied, 390 U.S. 1011 (1968); Pettit v. Gingerich, 427 F. Supp. 282, aff'd per curiam, 582 F.2d 869 (4th Cir. 1978)). Return to text.

[190] Id. at 897 (citing Richardson v. McFadden, 563 F.2d 744 (4th Cir. 1976); Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975)). Return to text.

[191] Id. (citing Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975)). Return to text.

[192] Id. at 898. The court went on to observe that, when such a study is conducted, it "should include a comparative analysis of the answers of those applicants who failed to pass with the answers of those who received a passing grade. It was testified at trial that the applicants' answers were not available to the plaintiffs for the period covered in this litigation because it was the practice of the Board to destroy the applicants' answers after a period of time." Id. at 898 n.4.

This suggestion seems to imply that such a comparison might reveal that otherwise comparable answers were given different grades and that the practice of the Board in not maintaining their applicants' answers for a reasonable period of time, especially in light of their awareness of the existence of this problem, was itself suspect and should be corrected. It is also disturbing to note that, at least in the state of Pennsylvania, no such in-depth study was subsequently conducted, despite this court's clarion call for one. Return to text.

[193] In describing the prospects for the future of racial discrimination legal challenges to the bar exam as "bleak," I mean only to suggest that it looks that way to me. The inhospitable attitudinal bent of the judiciary to such challenges and the current national mood against affirmative action and any policies aimed at leveling the playing field and providing opportunities to minorities and women, who have for so long been the victims of officially sanctioned discrimination by the organized bar, leave me with a heavy heart.

The institutional opposition by the bar to minority participation in the law is legion. For example, it was not until 1964 that the Association of American Law Schools' Committee on Racial Discrimination could first state that no member American law school reported denying admission to any applicant on the basis of race or color. SEGAL, supra note 7, at 3. Consider, for example, Dr. Segal's moving description of the American Bar Association reaction to the first black attorney admitted to membership:

In 1912, racism within the legal community was so rampant that a storm arose over the "inadvertent" election of the first three black attorneys to the American Bar Association by its Executive Committee. When the Executive Committee discovered that it had unknowingly elected three members "of the colored race," the committee rescinded its prior action, stating that "the settled practice of the Association has been to elect only white men to membership."
Id. at 17.

Though the ABA did, ultimately, declare these men to be members, thereafter it passed a resolution requiring all recommendations for membership to be accompanied by the disclosure of the race and sex of the prospective member. Id. That resolution remained in place for more than 30 years and was not rescinded until 1943. See id. at 19.

To this day, of the 23,000 black lawyers and judges in America, over 18,000 are members of the National Bar Association (NBA), which is a national black bar association, and have joined either in addition to, or instead of, joining the American Bar Association. Unfortunately, the current growth and vitality of the NBA is a sad and continuing reminder of the continuing need for such an organization. See Revius O. Ortique, Jr., The National Bar Association—Not Just an Option!, 53 JUDICATURE 390 (1970). Return to text.

[194] See supra part III.A.1-5. Return to text.

[195] See, e.g., supra notes 57-59 and accompanying text. Return to text.

[196] By rough analogy to a criminal proceeding, these results are similar to the situation where the accused defendant denies by sworn affidavit that he committed the crime charged or even had the opportunity to do it and the case is dismissed for lack of any material issue of fact because the court believes that the accused has sworn his innocence in good faith. Similarly, in the civil context, if corporate officers charged by their shareholders with breaches of their fiduciary duties were to deny by sworn affidavit that they committed the offense or even had the opportunity to do it, the case would be dismissed for lack of any issue of material fact should the court be impressed in a like manner with the defendants' good faith. These examples illustrate both the logical and practical absurdity of allowing defendants to escape liability by summary judgment solely on the strength of their sworn affidavits of innocence and lack of opportunity. Nevertheless, this is precisely what has occurred time and time again when minority plaintiffs challenge bar examiners in court. Clearly, in both the criminal and civil examples cited, the proper response should be, if a prima facie case has been made out, that those accused, notwithstanding their good faith denials, must stand trial and have their credibility tested in the crucible of cross-examination before a jury, which under our system is the best test for determining the truth. Return to text.

[197] It can also be argued that so many failed challenges to bar examinations might have actually discouraged some blacks from even going to law school in the first place, since the prospects of passing the bar appear to be so dim. Return to text.

[198] See supra notes 90-96 and accompanying text. Return to text.

[199] There is no way to determine definitively why some judges appear to be hostile and unreceptive to attacks on the bar examination. There may be a number of different explanations or only one. However, one possible source of such judicial hostility may be a heightened sense of personal identification with the bar examination system by the judges themselves. As successful products of that system, they may feel a personal stake in perpetuating their own personal, as well as the public's, perception of it as a fair meritocracy. However, it might be argued that judges should feel a similar personal allegiance when they preside over cases where attorneys are sued for malpractice. I suggest that the two situations are distinctly different. When plaintiffs challenge the bar examination system, they are claiming that it is a biased process that does not truly measure or reward merit alone. By implication, some may feel that if the system is tainted, to some extent those who bear its imprimatur are similarly tainted. In contrast, when an attorney is sued for malpractice, the plaintiff is not attacking the system that judged him fit to practice; rather, they are leveling a personal accusation at a particular attorney's handling of a particular case. In essence, they are not saying that the system is blameworthy but that the attorney is personally blameworthy in his conduct of a particular case. The cause of the attorney's malpractice may have been incompetence, which, to some extent, does implicate the system that produced him. However, it may also have been due to a host of factors that are all personal to the attorney and do not necessarily implicate the system, such as inefficiency, inattention, malfeasance, etc. Consequently, a judge hearing an attorney malpractice case is far less likely to feel personally implicated than when hearing a challenge to the bar examination itself. In fact, a judge hearing a malpractice case would reasonably view the system as "good," in the sense of establishing sensible standards of attorney conduct, and the individual attorney as blameworthy, to the extent that he violated those standards. Thus, in being called upon to rule in favor of a plaintiff suing an attorney, judges could reasonably view themselves as defending the system. However, in being called upon to rule in favor of a plaintiff challenging the bar examination on the basis of illegal bias, judges could reasonably view themselves as endorsing an attack on the system. Some judges could understandably view such an attack on the system, by implication, as an attack on themselves. As a consequence, in an effort to defend themselves, such judges might well feel the need to defend the system in ways that do not afford a full and fair evaluation to the plaintiff's case. I am not suggesting that this judicial resistance is always either conscious or intentional, although sometimes it may be. More often than not, it is more likely an unconscious and unintentional reaction to a subtle and perceived affront to their status as the deserving products of a fair meritocracy. Return to text.

[200] See supra note 135 and accompanying text (discussing the voting rights cases, where under the official state and local policy, black voters were identified by such methods as using different color cards or tickets or the letter "c," for colored, beside their names; state and local officials in the South not only instituted and utilized these blatantly discriminatory systems but, when challenged, vigorously defended them in court). Return to text.

[201] Tyler v. Vickery, 517 F.2d 1089, 1106 (5th Cir. 1975). Return to text.

[202] The optimistic view is to consider this perspective wholly generational and, therefore, a problem of the past which fades daily as that generation of lawyers and officials grows older and retires. However, a more realistic view is that the prospects for a radically different experience for the lawyers of today and even tomorrow are not terribly hopeful, given statistics that indicate that only about 10% of the law school population consists of minorities and that there has been only a 0.1% increase in the number of black lawyers in the last 10 years. See YAMAKI ET AL., supra note 6, at 9-10 (law school minority populations); Carey & Parker, supra note 25, at A1 (black lawyers). Return to text.

[203] Tyler 517 F.2d at 1096. Return to text.

[204] Id. at 1095. See also material on U.C.C. Article 2 and use of rules by analogy, infra note 206. Return to text.

[205] Tyler, 517 F.2d at 1096. Return to text.

[206] A particularly illustrative example is Article 2 of the Uniform Commercial Code (U.C.C.), which specifically applies only to the sale of goods. However, Article 2 has been applied in a great many contexts that do not expressly involve the sale of goods. Such cases fall into two general categories: sales of goods with non-goods and sales of goods with services. A minority of courts apply Article 2 only to the goods sold in the transaction, while the majority apply Article 2 to the entire transaction or not at all depending upon whether the "predominant purpose" of the whole transaction was a sale of goods. "[I]n the overwhelming majority of cases, Article 2 has been found applicable." 1 JAMES J. WHITE & ROBERT S. SUMMERS, UNIFORM COMMERCIAL CODE 26 (3d ed. 1988) (citations omitted); see, e.g., E. Allen Farnsworth, Good Faith Performance and Commercial Reasonableness Under the Uniform Commercial Code, 30 U. CHI. L. REV. 666, 678 (1963) ("Is it not possible that the general obligation of good faith with the merchant's objective standard may be extended by analogy to contracts not literally within the purview of the Code? The comments to the Code suggest the possibility of such extension.") (citing U.C.C. Sec 1-102, comment 1); see also E. Allan Farnsworth, Implied Warranties of Quality in Non-Sales Cases, 57 COLUM. L. REV. 653 (1957) (suggesting that sales warranties should be extended by analogy to bailments and contracts involving only the provision of services as opposed to goods); Cecil J. Hunt, II The Price of Trust: An Examination of Fiduciary Duty and the Lender-Borrower Relationship, 29 WAKE FOREST L. REV. 719, 770-71 n.321 (1994) (noting that the U.C.C.'s express application to the sale of goods can be reasonably extended to the context of a commercial loan).

Article 2 of the Code applies only to the "sale of goods." However, it can be applied to the lender-borrower relationship from any one or more of three different perspectives: (1) by analogizing the underlying purposes and policies behind the rules pertaining to both types of transactions (The U.C.C. provides that it should be 'liberally construed and applied to promote its underlying purposes and policies[.]'); or (2) by characterizing their relationship as a "mix" of a transaction involving both goods and services; or (3) by characterizing the borrowed funds in a loan transaction as "goods" in and of themselves.
Hunt, supra, at 770-71 n.321 (citations omitted). Return to text.

[207] See Tyler, 517 F.2d at 1096 (concluding that the Georgia Board of Bar Examiners was neither an "employer," an "employment agency," nor a "labor organization" within the meaning of Title VII). It is interesting to note that all subsequent cases faced with this question cite Tyler for the proposition that Title VII does not apply to the equal protection analysis of a challenge to a bar examination, and Tyler's exact language has been reiterated in other cases. See, e.g., Woodward v. Virginia Bd. of Bar Examiners, 598 F.2d 1345, 1346 (4th Cir. 1979). Return to text.

[208] This refusal was based solely on the reasoning that since bar examiners were neither employers nor employment agencies, Title VII did not apply by it own terms. See supra notes 67-70 and accompanying text discussing Tyler. Return to text.

[209] 490 U.S. 642 (1989). Return to text.

[210] 401 U.S. 424 (1971). Return to text.

[211] See supra notes 60-69 discussing the employer employment agency theory of Title VII as applied by analogy. Return to text.

[212] See Griggs, 401 U.S. at 432; see also Reginald Leamon Robinson, The Impact of Hobbe[s]'s Empirical Natural Law on Title VII's Effectiveness: A Hegelian Critique, 25 CONN. L. REV. 607, 609 (1993). Professor Robinson noted that, even after Title VII was amended, "[t]hese amendments proved ineffective, and in 1989 the Court decided Wards Cove Packing Co. v. Atonio which severely weakened the Griggs disparate impact approach. As a result, Congress passed the Civil Rights Act of 1991 . . . , the purpose of which was to counteract the Supreme Court's more conservative jurisprudence." Robinson, supra, at 609 (citations omitted). Return to text.

[213] Griggs, 401 U.S. at 432. Return to text.

[214] Id. Return to text.

[215] Id. Return to text.

[216] Id. Return to text.

[217] Id. Return to text.

[218] Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 658-59 (1989). Return to text.

[219] Id. Return to text.

[220] Id. Return to text.

[221] Id. In determining whether this test had been met, the Wards Cove Court noted that "the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer." Id. at 659. However, the Court also pointed out that, in order to be considered "legitimate employer goals," the justification had to be more than just a mere insubstantial one "because such a low standard of review would permit discrimination to be practiced through . . . spurious . . . employment practices." Id. However, the Court also concluded that "there is no requirement that the challenged practice be 'essential' or 'indispensable' to the employer's business for it to pass muster." Id. Return to text.

[222] Id. at 657-60. Thus, under Wards Cove, employers need only plead, but not prove, a legitimate employment goal. Id. at 660. The burden then shifts to plaintiffs to identify with specificity the particular employment practice that they claim violates Title VII. Id. In support of its holding that the burden of persuasion must rest on the plaintiff, the Court in Wards Cove quoted 42 U.S.C. § 2000e(2)(a) (1988): "The persuasion burden here must remain with the plaintiff, for it is he who must prove that it was 'because of such individual's race, color,' etc., that he was denied a desired employment opportunity." Id.; see also Robinson, supra note 212, at 638.

With this 1989 decision, the Court redefined the thrust of Title VII and limited Griggs['] liberal scope of liability. Wards Cove thus established a new touchstone. Under Wards Cove, employers needed to prove only that challenged practices served legitimate goals 'in a significant way.' This rule could be viewed as undermining Title VII's goal of absolute equality in the workplace and as supplanting Griggs' liberal liability threshold. To this extent, Wards Cove redefined Title VII.
Robinson, supra note 212, at 638. Return to text.

[223] Wards Cove, 490 U.S. at 660-61. Return to text.

[224] Id. at 661. Return to text.

[225] Kenneth Williams, A Legal Challenge to Bar Examinations, 16 T. MARSHALL L. REV. 537, 539 n.24 (1991) (quoting Recent Cases, 103 HARV. L. REV. 806, 808 n.21 (1990)). Return to text.

[226] 709 F. Supp. 345 (S.D.N.Y. 1989). Return to text.

[227] Id. at 348. Return to text.

[228] Id. Under Title IX all federally funded educational programs are prohibited from discriminating on the basis of gender. Id. at 360 (citing 20 U.S.C. § 1681(a) (1988)). Return to text.

[229] Id. at 348. Return to text.

[230] Id. at 364. Return to text.

[231] Id. Return to text.

[232] The plaintiffs' evidence of disparate impact was primarily statistical. For example, they demonstrated that for the academic year 1986-87, girls represented 53% of the applicants for the state merit scholarships, id. at 355 n.26; however, only 43% of the scholarship recipients were girls that year, id. at 355. The plaintiffs argued that this gender-based disparate impact was the result of the state's use of a testing standard that was not rationally related to its purpose and therefore deprived them of equal protection under the law. Id. at 348; see also Kary L. Moss, Standardized Tests as a Tool of Exclusion: Improper Use of the SAT in New York, 4 BERKELEY WOMEN'S L.J. 230, 238 (1989-90) (discussing Sharif). Return to text.

[233] See W. Sherman Rogers, Title VII Preemption of State Bar Examinations: Applicability of Title VII to State Occupational Licensing Tests, 32 HOW. L.J. 563, 602 (1989) (analyzing the Fifth Circuit's decision in Tyler and its progeny and concluding that, "[f]or whatever reason, the Fifth Circuit's statement seems to have been blindly accepted by other courts without scrutiny"). Return to text.

[234] See, e.g., Woodard v. Virginia Bd. of Bar Examiners, 598 F.2d 1345, 1346 (1979); Parrish v. Board of Comm'rs of Ala. State Bar, 533 F.2d 942, 949 (5th Cir. 1976); Delgado v. McTighe, 442 F. Supp. 725, 730 (E.D. Pa. 1976). But see Woodard v. Virginia Bd. of Bar Examiners, 420 F. Supp. 211, 213 (E.D. Va. 1976). Return to text.

[235] An employer is defined as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." 42 U.S.C. § 2000e(b) (1988) (emphasis added). Return to text.

[236] See Pub. L. No. 92-261, 86 Stat. 103 (1972) (codified as amended at 42 U.S.C. § 2000e(a) (1988) (amending definition of "person" to include governments, governmental agencies, and political subdivisions); see also Florida v. Long, 487 U.S. 223, 228 n.1 (1988) (noting how the 1972 amendments to Title VII made states and local governments "employers" under Title VII for the first time); see generally Rogers, supra note 227, at 563. Return to text.

[237] See Sparks v. The Character & Fitness Committee of Kentucky, 818 F.2d 541 (6th Cir. 1987) (holding state bar examiners performed quasi-judicial function of state supreme court). Return to text.

[238] 420 F. Supp. 211 (1976), aff'd, 598 F.2d 1345 (4th Cir. 1979). Return to text.

[239] Id. at 213 n.3. Return to text.

[240] Id. (citations omitted). Return to text.

[241] Id. at 214. In so holding, the court reasoned, "The Supreme Court has recognized 'that the States have a compelling interest in the practice of professions within their boundaries, and that as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions.' " Id. (quoting Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975) (emphasis added by Woodard court)). Return to text.

[242] Woodward v. Virginia Bd. of Bar Examiners, 598 F.2d 1345, 1346 (4th Cir. 1979). Return to text.

[243] Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 718 n.33 (1978) (citations omitted). Return to text.

[244] Spirt v. Teacher Ins. and Annuity Ass'n, 691 F.2d 1054, 1063 (2d Cir. 1982), vacated and remanded, 463 U.S. 1223 (1983) (citations omitted). Return to text.

[245] Susan E. Brown & Claire Levay, Melendez v. Burciaga: Revealing the State of the Art in Bar Examinations, B. EXAMINER, May 1982, at 4, 6; see supra notes 165-177 and accompanying text (discussing Delgado v. McTighe and describing how neither the officials from the Educational Testing Service, which designed the Multistate Bar Exam, nor the National Conference of Bar Examiners could advise the Pennsylvania Bar Examiners as to what passing score would ensure minimum competence). Return to text.

[246] 522 F. Supp. 886 (E.D. Pa. 1981). Return to text.

[247] Id. at 897. Return to text.

[248] AMERICAN BAR ASSOCIATION SECTION OF LEGAL EDUCATION AND ADMISSIONS TO BAR, REPORT AND RECOMMENDATIONS OF THE TASK FORCE ON LAWYER COMPETENCY: THE ROLE OF THE LAW SCHOOLS (1979) [hereinafter ABA REPORT]. Return to text.

[249] Id. at 9. Return to text.

[250] AMERICAN LAW INSTITUTE- AMERICAN BAR ASSOCIATION COMMITTEE ON CONTINUING PROFESSIONAL EDUCATION, A PEER REVIEW SYSTEM: DISCUSSION DRAFT 11 (1980) [hereinafter ALI-ABA COMMITTEE DRAFT]. Return to text.

[251] Id. at 154. Return to text.

[252] Stephen P. Klein, Summary of Research on the Multistate Bar Examination, B. EXAMINER, Aug. 1983, at 10, 13; see also John F. O'Hara & Stephen P. Klein, Is the Bar Examination an Adequate Measure of Lawyer Competence, B. EXAMINER, Aug. 1981, at 28, 29. Dr. Klein, perhaps the most prominent defender of the bar exam on the basis of statistical correlations, has further acknowledged that "[n]o studies have attempted to correlate MBE (Multistate Bar Exam) scores with 'success as a lawyer' because of the difficulty of obtaining agreement as to a valid measure of success." See Rogers, supra note 233, at 590. Return to text.

[253] Edward F. Bell, Do Bar Examinations Serve a Useful Purpose?, 57 A.B.A. J. 1215, 1216 (1971). The author also concludes that to the extent that the bar exam's purpose is to determine lawyer competence, "that purpose has not been accomplished. There are many grossly incompetent lawyers practicing law today who have passed a bar examination that failed to eliminate them and to prevent them from practicing on an unsuspecting public." Id. Return to text.

[254] Id. Return to text.

[255] RICHARD S. BARRETT, COMMISSION ON TESTING AND PUBLIC POLICY, CONTENT VALIDITY IN EMPLOYMENT TESTING 89 (1989) (draft report); see also Emsellem, supra note 5, at 44. Return to text.

[256] Symposium, The Minority Candidate and the Bar Examination, 5 BLACK L.J. 120, 178 (1977). Return to text.

[257] Alfred E. Carlson & Charles E. Werts, Relationships Among Law School Predictors, Law School Performance, and Bar Exam Results, 3 REPORTS OF LSAC SPONSORED RESEARCH 211, 214 (Sept. 1976). But see Erwin N. Griswold, In Praise of Bar Examinations, 60 A.B.A. J. 81 (Jan. 1974). Return to text.

[258] 540 F.2d 744 (4th Cir. 1976). Return to text.

[259] Id. at 746-47. Return to text.

[260] See THE NEW YORK STATE BAR ASSOCIATION, FINAL REPORT OF THE SPECIAL COMMITTEE ON LAWYER COMPETENCY 52-54 (1988) [hereinafter NEW YORK STATE BAR ASSOCIATION]. Return to text.

[261] See id. at 48. Return to text.

[262] Id. at 54. Return to text.

[263] See generally KLEIN & BOLUS, supra note 3, at 2-3. Return to text.

[264] Id. Return to text.

[265] Derrick A. Bell, Jr., Law School Exams and Minority-Group Students, 7 BLACK L.J. 304, 307 n.5 (1981) ("LSAT scores are only statistical predictions that are accurate less than fifty percent of the time."). Return to text.

[266] James C. Hathaway, The Mythical Meritocracy of Law School Admissions, 34 J. LEGAL EDUC. 86, 86 (1984) (indicating that over the course of a law school career, the LSAT is a "particularly inaccurate predictor of academic success for various subgroups including men, younger students, and members of racial minorities"). Return to text.

[267] Brown & Levay, supra note 245, at 7; see also Carlson Werts, supra note 257, at 220. Return to text.

[268] Brown & Levay, supra note 245, at 7. Return to text.

[269] Id. at 12 (testimony of Dr. Ralph Hoepfner before the New Mexico Supreme Court) (emphasis added) (citations omitted). Return to text.

[270] Erica Moeser, At the Gap: Bar Admissions Issues That Are Relevant to the MacCrate Discussion, in THE MACCRATE REPORT 83, 84 (Conference Proceedings, Minneapolis-St. Paul, Minn., Sept. 30-Oct. 2, 1993). Return to text.

[271] Id. at 138-39. It should be noted that, as the reporter for a discussion group, the author was expressing the views of the members of her group, and not just her own. For example, she concludes by noting, "There was widespread agreement among this discussion group that the MacCrate Report and this conference could serve as a catalyst for improvement of the legal profession throughout one's career." Id. at 139.

At another point in the conference, John O'Neill, Academic Program Coordinator for West Publishing Co., in commenting on the enormous costs in both time and money imposed on students by the existence of the bar exam, concluded that "[t]hese particular resources of cost and study time should be put toward programs that would improve a recent graduate's competencies in serving the needs of their clients. It is clear that the current Examination does not serve this function." Id. at 150. Return to text.

[272] Brown & Levay, supra note 245, at 9. Return to text.

[273] Id. Dr. Richard Barrett defined false negatives as "those who are unqualified yet pass the examination" and false positives as "those who are qualified yet fail the bar." Id. He also identified two additional relevant categories as "those who are qualified to practice and pass the bar, [and] those who are unqualified to practice and are failed by the bar examination." Id. Return to text.

[274] Dr. Barrett described this form of analysis as "one of the most sophisticated concepts in testing." Id. Return to text.

[275] Id. at 9-10 (citations omitted). Return to text.

[276] Id. Return to text.

[277] Id. Return to text.

[278] Id. at 10. Return to text.

[279] As suggested supra, notes 252-71 and accompanying text, this would involve a psychometric evaluation of the bar examination to assure that it meets modern testing standards of having predictive, content, and construct validity. Curiously, most state bar examiners and courts considering the question have refused to hold the bar exam to these known standards of validity. Return to text.

[280] Cf. Brown and Levay, supra note 245, at 14 ("The exclusion from practice of qualified individuals, whether minority or majority culture, is too high a price to pay for adhering to outmoded and superseded attorney licensing practices."). Return to text.

[281] 522 F. Supp. 886 (E.D. Pa. 1981). Return to text.

[282] Id. at 898 (referring to the disproportionately high failure rate of blacks taking the Pennsylvania Bar Examination). Return to text.

[283] A significant exception to this trend is, of course, the current study being conducted by the LSAC headed by Dean Ramsey. See supra notes 24-32 and accompanying text. Return to text.

[284] See, e.g., Stephen P. Klein, An Analysis of the Relationship Between Bar Examination Scores and an Applicant's Law School Admissions Test Scores, Grades, Sex and Racial/Ethnic Group, 49 B. EXAMINER 14, 16 (1980); Klein, Bar Examinations, supra note 4, at 30; Klein, On Testing, supra note 4, at 18, 19-20 (correlating the MBE and law school grades); Brown & Levay, supra note 245, at 7 (correlating the MBE and law school grades); KLEIN & BOLUS, supra note 3, at 10-15; Carlson & Werts, supra note 257, at 262. Return to text.

[285] Delgado, 522 F. Supp. at 894 (quoting the report of Dr. Robert Bernreuter, who was retained by the Philadelphia Bar Association in 1972 to perform an analysis of the Pennsylvania Bar Examination). Return to text.

[286] See, e.g., MASSACHUSETTS BAR REPORT, supra note 11, at 25. This process is referred to as "front loading the law schools with confident, motivated, intellectually stimulated and prepared students." Id. at 25-26. Return to text.

[287] Vaughns, supra note 3, at 431. Recent psychological studies have explored and documented a positive, though not determinative, correlation between self-concept and academic achievement. Id. at 431-32 n.25 (citation omitted). As such, these "socio-psychological factors . . . may, albeit indirectly, affect law school academic performance and bar exam performance." Id. at 431. Return to text.

[288] Bernadette M. Gadzella & James David Williamson, Study Skills, Self-Concept, and Academic Achievement, 54 PSYCH. RPTS. 923, 932 (1984). "Self-concept" is a nonintellectual factor that relates to a person's perception of himself and the world around him, id.; self-concept can impact on, among other things, that person's academic achievement, id. at 927-28. Return to text.

[289] Jim Cummins, Empowering Minority Students, 56 HARV. EDUC. REV. 18, 21-22 (1986). Various types of learning environments promote the type of academic confidence necessary for competitive academic achievement; students from "dominated" societal groups are either "empowered" or "disabled," depending upon the quality of interaction received in the educational setting. Id. at 21; see also Vaughns, supra note 3, at 460 ("Studies indicate students of color succeed academically if they have a healthy sense of their own identity and self-worth and feel positively towards the learning environment."). Return to text.

[290] Cf. Jay M. Feinman & Marc Feldman, Achieving Excellence: Mastery Learning in Legal Education, 35 J. LEGAL EDUC. 528, 531 (1985) ("[A] large body of research and years of experience demonstrat[e] that widely distributed learning outcomes are more a product of ineffective schooling than of the abilities of the students."); see also RACIAL ISOLATION IN THE PUBLIC SCHOOLS, infra note 307, at 99. Return to text.

[291] See Vaughns, supra note 3, at 429. Professor Vaughns notes that, "given the large differential in the traditional law school predictors, law faculty tend to make negative assumptions about the potential of students of color, specially admitted, to perform well in law school." Id. "[Feinman and Feldman] note that most law students possess the basic prerequisites for learning the law. But for minority students admitted under affirmative action programs, they opine that many teachers reject this proposition, asserting that a significant number of law students are so deficient in ability or preparation that efforts to improve their academic performance significantly are infeasible." Id. n.15 (analyzing Feinman & Feldman, supra note 290, at 531 n.10). Since the faculty cannot distinguish between students of color who were "specially admitted" and those who were not, I suggest that, in practice, many law professors assume that all students of color, regardless of their academic credentials and preparation, were so admitted, and consequently the faculty entertain and communicate their low academic expectations indiscriminately with respect to all minority students. Return to text.

[292] See infra part V.B.1-4. Return to text.

[293] See infra part V.B.3. Return to text.

[294] Reflecting on that conversation, I was reminded of the parable of the elephant, the chain, and the rope: A small child and her father went to a local circus. Entering the bigtop, the child was particularly awestruck by the many enormous, powerful elephants that appeared to be held in check by nothing more than a short, thin piece of ordinary rope wrapped around one of the elephant's huge hind legs and fastened to a small metal stake in the ground. The child, fascinated by this simple and seemingly inadequate restraint on such powerful beasts, asked her father how such a big, strong animal could be held down by such a small rope. Equally perplexed, her father in turn asked the same question of the elephant's trainer. "Well," the trainer responded, "we get that question all the time. It's really quite simple." The trainer explained that when the elephants were still quite young, and not yet so strong, the trainers put huge, powerful chains on their legs and anchored the chains to the biggest, strongest things around, such as a big tree or a truck. When the young elephants struggled to get free, they were held fast by the big chains and strong anchors.

As the little elephant grew, the trainers used smaller and smaller chains, and less and less formidable anchors. By the time the elephants had become full-grown, the chains had been reduced to nothing more than a small rope attached to a metal spike in the ground. In that way, the trainer explained, each elephant, remembering the chains of its youth, associated the feeling of the rope on its leg with the feeling of the chains, and by then it was so convinced in its own mind that it could not break free, it did not even try anymore. "So you see," concluded the trainer, "the rope is not really holding the elephant back; it's just a reminder. The elephant is holding itself back. In fact," added the trainer, "this system works so well, that sometimes all we have to do is show the elephant the rope and it settles right down and doesn't give us any trouble at all."

I could not help but think of my colleague's minority students as being in a situation analogous to that of the elephants in the parable. Return to text.

[295] Cf. Harold B. Gerard, School Desegregation: The Social Science Role, 38 AM. PSYCHOLOGIST 869, 874 (1983).

There are fairly consistent findings that teachers pay more attention to white than to minority pupils. . . . [T]here is also evidence that teachers underrate minority children. In our own data we found that teachers who tend to undervalue the achievement of minority pupils as compared with whites—and most teachers do—tend to have an adverse affect on the performance of minority children in their classes.
Id.; see also Ralph Scott, Gender and Race Achievement Profiles of Black and White Third-Grade Students, 121 J. PSYCH. 629, 634 (1987).
Test scores often mirror empirical shortcomings, including validity and reliability questions. Nonetheless, the extensive range of the subjects' attainments on the CAT [California Achievement Test] seemingly serve notice that individualized curricular planning [that] enabl[es] students to become actively engaged in classroom activities through frequent and accurate responses to stimuli relevant to classroom tasks . . . may be required if compensatory programs are to provide many poor and minority youth with viable schooling enrichment.
Id. (citations omitted). Return to text.

[296] See Vaughns, supra note 3, at 458. The author observes that "students of color also bring a sense of low self-esteem which is difficult to overcome when they encounter overt or subtle treatment in a law school classroom that further undermines their self-confidence. Whether or not the instructor is well-intentioned, students of color may harbor debilitating resentment or perform less well if they perceive their treatment in the classroom as an indication that they are less able than their white counterparts." Id. at 458-59 (citing Gerard, supra note 295, at 874 (discussing data, in the context of studying the effects of desegregation, that demonstrates a tendency on the part of classroom teachers to underrate minority students, with consequences that adversely affect their performance in the classroom)).

I have a rather vivid memory of a similar incident when I was in the third grade. I was one of only a handful of children of color in the class. The class had been asked to write essays on what we saw in our minds when we daydreamed and to read those essays aloud to the rest of the class. When my turn came, I read my essay and told, in my own visually descriptive way, of seeing a beautiful meadow with bright flowers, a babbling brook, colorful birds, and a beautiful blue sky. When I was done, I looked around. The class was absolutely silent. Thinking that I had done a good job, I looked up to the teacher for approval. She stared at me with a stern and disapproving look that I will never forget and asked, "What book did you copy that out of?" No matter how I tried to assure her that I had not copied it but had written it myself, she insisted that it was "impossible" for it to be my own original work. She then launched into a stern lecture to the entire class about the sin of copying things out of books rather than doing one's own work and used me as an example.

I was humiliated by that experience and branded as a cheater by my teacher and my classmates for the rest of the year! I never spoke again in that class. Soon afterwards, I developed a serious stuttering problem that I struggle against to this day. It was years before I wrote another essay for a teacher and, when I did, I was careful to make it plain and simple so as to avoid any attention or suspicion.

The noted African-American playwright August Wilson, author of such works as Fences and The Piano and recipient of numerous Tony Awards and a Pulitzer Prize, responded similarly when asked why he had not finished high school. Charlie Rose (PBS television broadcast, Feb. 18, 1994). Because no one believed that he had actually written the things he produced, he was the object of much suspicion and harassment. Id. For him, it was the choice between writing or staying in school. Id. He chose writing. Return to text.

[297] Professors are not the only ones who foster this sense of being "suspected" rather than "respected." To the extent that some professors communicate a suspicion and low expectation in the classroom, some white students often will adopt their professors' attitude and treat the minority students in the same fashion. In fact, to the extent that white students harbor independent suspicions of their own regarding the intellectual capacity and qualifications of minority students to be in law school, they may well see in these professors' attitudes an implicit ratification of their own negative presumptions.

A few years ago I had one black student and one wheelchair-bound student in a large first-year course. I emphasized the importance of not attempting to grapple with the demands of law school alone and strongly encouraged the students to form study groups. Several weeks into the course the black student and the wheelchair-bound student came to my office and informed me that, despite their vigorous efforts, they had been unable to get into any study groups. Or, as they put it, they couldn't even "buy their way into a study group." I reassured them that there couldn't be anything personal involved since it was so early in the first semester no one in class really knew anyone yet. I asked them to be patient and trust that I would do something to help them. During the next several weeks, I highlighted those two students in my class and called on them repeatedly, probing deeply and following up extensively. They rose to the challenge and performed extremely well in these class discussions. I then frequently spoke about them and their excellent classroom contributions to my colleagues who taught other first-year courses in my section. As a consequence, I heard that they were being called on frequently in one or two other classes as well. Within a few weeks, they came back to my office and told me that they had now received a great many invitations to join study groups—some from one or two of the so-called "best groups in the class." As they put it, "[W]e now have to beat them off with a stick." At the end of the year, both students finished academically in the top 10% of the class. Return to text.

[298] Vaughns, supra note 3, at 432. The author also notes that "[t]o the extent that students feel inferior and alienated in the classroom setting, they are discouraged and, therefore, may perform less well or as 'expected'." Id. at 460. By performing "as expected," the author is referring to data that suggest that students tend to perform according to the expectations of the authority figures around them, especially teachers. See Feinman & Feldman, supra note 290, at 531. Therefore, as the saying goes, the students will live either "up to" or "down to" the expectations that are powerfully communicated to them. Return to text.

[299] Vaughns, supra note 3, at 458 (citing Richard Delgado et al., Can Science Be Inopportune? Constitutional Validity of Government Restrictions on Race-I.Q. Research, 31 UCLA L. REV. 128, 194 (1983) (discussing the controversy surrounding race-based theories of inferiority and psychological injury to African-American children)). Return to text.

[300] STEPHEN JAY GOULD, THE MISMEASURE OF MAN 80 (1981). Return to text.

[301] Id. The author states that "scientific racists and sexists often confine their label of inferiority to a single disadvantaged group; but race, sex, and class go together, and each acts as a surrogate for the others." Id. Return to text.

[302] Id. at 111. If my own experience is any guide, many blacks and whites in the current generation of lawyers, judges, and law professors grew up with this type of "scientific" information being taught to them in school as fact! Return to text.

[303] DERRICK BELL, CONFRONTING AUTHORITY 148 (1994). Professor Bell argues that since the time, just a few decades ago, when we thought so much good was about to be accomplished, "the plight of the poor and the disadvantaged is not much eased by social programs, which no matter how ambitiously undertaken, seem able to deliver only food without nutrition, welfare without well-being, job training without employment opportunities, and legal services without justice." Id. Return to text.

[304] Id. at 149. Witness the reactions to the O.J. Simpson verdict and the Million Man March. See generally Abigail Thernstrom, Two Nations, Separate and Hostile, N.Y. TIMES, October 12, 1995, at A23 (describing a "white backlash" to affirmative action, the O.J. Simpson verdict, and the Million Man March).

Bell and Thernstrom are suggesting that in the post-civil rights era most overt signs of racial discrimination have disappeared. Gone are the "whites only" signs in public places. However, what remains are the feelings of white superiority and black inferiority that provided the intellectual foundation for our national segregationist system in the first instance. As a consequence, whites who still feel that blacks are inherently inferior, but who are no longer free to express such views openly without fears of at least social, if not outright legal, sanction, have turned to more subtle, or underground, ways to express their views. Examples of this more subtle or underground racism are many and varied. They range from the deep racial divide exposed following the not guilty verdict in the infamous O.J. Simpson case, to the persistence of racial discrimination in mortgage lending and rental housing, to the increasingly heated national debate over affirmative action, to the debate over the great disparities in sentencing for possession of crack, versus powder, cocaine. Andrew Hacker, for example, eloquently discusses this more subtle, but continuing, legacy of racism in the recently published, expanded version of his famous book Two Nations: Black and White, Separate, Hostile, Unequal. Writing about the continuing resistance of whites to integrated housing, Hacker states:

To the minds of most Americans, the mere presence of black people is associated with a high incidence of crime, residential deterioration, and lower educational attainment. Of course, most whites are willing to acknowledge that these strictures do not apply to all blacks. At the same time, they do not want to have to worry about trying to distinguish blacks who would make good neighbors those who would not. To which is added the suspicion that if more black families arrive, it would take only one or two undesirables to undermine any interracial amity. . . .
Americans have extraordinarily sensitive antennae for the coloration of neighborhoods. In virtually every metropolitan area, white householders can rank each enclave by the racial makeup of the residents. Given this knowledge, where a family lives becomes an index of its social standing. While this is largely an economic matter, proximity to blacks compounds this assessment. For a white family to be seen as living in a mixed—or changing—neighborhood can be construed as a symptom of surrender, indeed as evidence that they are on a downward spiral. If you are black, these white reactions brand you as a carrier of contaminations. No matter what your talents or attainments, you are seen as infecting a neighborhood simply because of your race. . . . It opens wounds that never really heal and leaves scars to remind you how far you stand from full citizenship. ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL 43 (1995). Return to text.

[305] GOULD, supra note 300, at 65. Return to text.

[306] Id. Return to text.

[307] 1 RACIAL ISOLATION IN THE PUBLIC SCHOOLS, A REPORT TO THE U.S. COMMISSION ON CIVIL RIGHTS 99 (1967) (citations omitted). Return to text.

[308] These negative presumptions and expectations need not be, and most often probably are not, conscious and deliberate. Rather they are the unconscious products of living in a society steeped in negative and stereotypical images of minorities and women. See generally Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987). Return to text.

[309] Robert J. Borthwick & Jordan R. Schau, Gatekeepers of the Profession: An Empirical Profile of the Nation's Law Professors, 25 U. MICH. J. L. REF. 191, 193 (1991). The authors emphasize that "[t]oday, the role of law professor includes control over the only training experience common to all members of the legal profession: attendance at law school." Id. Return to text.

[310] A vivid, if perhaps somewhat dated, example of such pedagogic insensitivity, was related by Professor Bell, supra note 303, at 16. Bell tells a story about being warned by a recent black graduate of his law school about a property teacher who every year would illustrate the concepts of trespass and adverse possession with a hypothetical about a "Negro sneaking late at night into a watermelon patch." Id. Professor Bell's mentor told him not to protest when the story was told, but rather to sit quietly and take it. Id. The property professor did tell the story and Bell did not protest. Id. Perhaps Bell's current criticism of Harvard Law School is, in some small part, a result of the pent-up frustration borne from remaining quiet during his property professor's insulting and demeaning story.

More contemporaneously, I recently had a number of black students come to my office to complain about a white colleague, who, in teaching a class on professional ethics, created a hypothetical involving a black man raping a white woman. When the students asked him what the relevance of the race of the perpetrator and the victim was, he told them that their respective races were not relevant at all and to disregard them in framing their response to the ethical problem presented. Their question to me was, if race was irrelevant, then why was it included in the facts? I had no answer for them except to applaud their having brought it to the professor's attention, rather than just sitting quietly and taking it. Return to text.

[311] Borthwick & Schau, supra note 309, at 196. Return to text.

[312] Michael H. Levin, Fear and Loathing at Harvard Law School, HARVARD MAGAZINE, Mar.-Apr. 1995, at 44, 46. Return to text.

[313] See Suzanne Homer & Lois Schwartz, Admitted but Not Accepted: Outsiders Take an Inside Look at Law School, 5 BERKELEY WOMEN'S L.J. 1, 5 (1989-90). These observations are equally as true with respect to women as they are for students of color. Women in law schools tend to report feelings of isolation, alienation, and of being suspected and not respected in much the same ways as students of color. Clearly, "women of color" in law school bear the heaviest burden of all in this respect because of the intersection of gender and race. See id. at 8 (discussing a study conducted at Yale Law School from 1984 to 1987, in which women described their feelings of alienation in legal education as "a process of 'self extrication,' or the rigorous exclusion of feelings and personal beliefs"); see generally Taunya Lovell Banks, Gender Bias in the Classroom, 14 SO. ILL. L.J. 527 (1990). Return to text.

[314] Homer & Schwartz, supra note 313, at 5. Return to text.

[315] Id. at 4; see also Catherine Weiss & Louise Melling, The Legal Education of Twenty Women, 40 STAN. L. REV. 1299, 1330 (1988). Return to text.

[316] Homer & Schwartz, supra note 310, at 3. Return to text.

[317] Weiss & Melling, supra note 315, at 1322-23 (citation omitted); see generally Lani Guinier, Of Gentlemen and Role Models, 6 BERKELEY WOMEN'S L.J. 93 (1990-91). Upon returning to Yale Law School ten years after her graduation, Guinier noticed "the traditional portraits of larger-than-life white men," Guinier, supra, at 93, and concluded that "the gigantic male portraits symbolized my alienation as a student from class, race, and gender privilege. Law school, as a professional school, was simply more homogeneous with even more explicitly homogenizing institutional norms . . . than I had either expected or previously experienced." Id. at 94 n.4; see also Lani Guinier et al., Becoming Gentlemen: Women's Experiences at One Ivy League School, 143 U. PA. L. REV. 1 (1994). Return to text.

[318] Guinier et al., supra note 317, at 4. Return to text.

[319] Weiss & Melling, supra note 315, at 1302. The authors suggest that this alienation process is particularly significant because it "affects the legal profession and everyone it touches. What we do in law school shapes what we will do as lawyers, which in turn affects the lives of others. Until women share equally in the learning and thus in the practice, teaching, and making of law, we will be disabled in shaping society to fit women's needs." Id. Return to text.

[320] See id. at 1333. Return to text.

[321] Homer & Schwartz, supra note 313, at 29 (citation omitted). Return to text.

[322] Weiss & Melling, supra note 315, at 1335 (citation omitted). Return to text.

[323] Id. Return to text.

[324] Id. Additionally, the authors describe this type of elitist and self-centered disconnection, a situation in which

[n]o one listened to each other. The teachers didn't listen to the students. The students didn't listen to the teachers. The students didn't listen to one another. There was no joint project to learn something. In class, the teacher would say something. The student would respond. The teacher's response would have nothing to do with the student's comments.
Id. at 1341. Return to text.

[325] Id. at 1335. Return to text.

[326] Id. Return to text.

[327] Id. at 1336. One student reported:

There were times when women made points, and they were ignored or trivialized. Five minutes later, a man would make the same point, in three parts, and it was discussed. I hated that . . . . We were interrupted or pounced on. . . . Some professors . . . would always call on the men first when the men had their hands up, or they would always call on all the men first and then call on the women . . . . The men don't raise their hands, they just speak out, and they're very loud, and they just start shouting over each other.
Id. Return to text.

[328] Id. at 1337. This atmosphere within the classroom is clearly within the professor's ability to control and change. More subtle and perhaps more destructive behavior occurs outside the classroom, where women who dare to attempt to participate in class are punished and thereby silenced by both male and female colleagues who ridicule them based on "ideas about women's sexuality." See Guinier at al., supra note 317, at 51 n.128. In this context, Professor Guinier noted that

[o]ne woman student reported hearing negative comments about her frequent class participation while in a stall in the women's bathroom. Although married, she was decried as a "man-hating lesbian." She reports that she almost dropped out of law school that day. Another woman reported that she was called a "feminazi dyke" for her frequent comments in first-year classes. This student, who is Jewish, immediately stopped speaking in all her first-year classes. Still another woman said she felt "like wherever I went [the hissing] would follow me. It really shut me up."
Id. Professor Guinier also observed that although these put downs occur outside of classes in informal student relations, "they are normalized by and may reproduce behavior that is performed within the classroom." Id. at 52. Return to text.

[329] Cathaleen A. Roach, A River Runs Through It: Tapping into the Informational Stream To Move Students from Isolation to Autonomy, 36 ARIZ. L. REV. 667, 671 (1994). Return to text.

[330] Homer & Schwartz, supra note 313, at 33. Return to text.

[331] Id. Return to text.

[332] Id. at 30. But see Janet Taber et al., Gender, Legal Education, and the Legal Profession: An Empirical Study of Stanford Law Students and Graduates, 40 STAN. L. REV. 1209 (1988). In that study, the Stanford researchers

found no statistically significant difference in the number of men and women elected to Order of the Coif. They extrapolate this finding to provide evidence that all men and women at Stanford are performing comparably. . . . However, they do not consider the fact that the top ten percent of the class elected to Order of the Coif is not necessarily (or even logically) representative of the performance distribution among men and women in the other 90%.
Homer & Schwartz, supra note 313, at 13. Return to text.

[333] Ken Myers, Study of Gender Difference Finds 1-L Women Draw Lower Grades, THE NATIONAL LAW JOURNAL, Jan. 30, 1995, at A17. Return to text.

[334] Id. Return to text.

[335] Id. Return to text.

[336] Id. The study also revealed that even though women are receiving lower grades than men, the evidence indicated that they are spending "a lot more time studying than men." Id. While the results of this study clearly indicate that a lot more work needs to be done to understand fully what is going on in law school classrooms with respect to women and their self-image, Dr. Wightman concludes that, "We are learning that women are coming out of that first year of law school with a very different self-concept than men are." Id. Return to text.

[337] Roach, supra note 329, at 676. Dean Roach goes on to observe that those who are generally described as outsiders, which includes minorities and women (especially if they are older),

experience increased isolation with resulting increased psychological and academic hardships. . . . [S]tudies report that a typical behavioral response to this isolation is increased passivity and non-assertive behavior, including asking fewer questions of faculty members. In turn, this passivity clearly affects grade point averages. . . . [A]cademic self-concept, rather than the traditional cognitive skills, is a significant predictor of academic success.
Id. at 677 (citation omitted). Return to text.

[338] See generally Leslie G. Espinoza, Empowerment and Achievement in Minority Law Student Support Programs: Constructing Affirmative Action, 22 U. MICH. J. L. REF. 281 (1989) (describing the systemic inadequacy of most academic support programs). Espinoza argues that because the law schools that employ such programs do not understand the counterproductive psychological damage that they inflict on minority students, such programs will never succeed unless they are properly restructured. Id. at 286-92. Return to text.

[339] See id. Espinoza notes that in a 1988 report issued by the Minority Affairs Committee of the Law School Admissions Council (LSAC), of 128 schools that responded to the LSAC questionnaire, "81 law schools have a minority recruitment program, 51 have a summer orientation program, 59 have a tutorial program, 32 have a legal writing program and 58 have other special programs for minority students." Id. at 281, n.4. (citing LAW SCHOOL ADMISSION COUNCIL MINORITY AFFAIRS COMM., SUMMARY REPORT ON THE LSAC QUESTIONNAIRE ON SPECIAL LAW SCHOOL PROGRAMS FOR MINORITY STUDENTS 5 (1988)). Return to text.

[340] Id. at 282; see also Stephen R. Ripps, A Curriculum Course Designed for Lowering the Attrition Rate for the Disadvantaged Law Student, 29 HOW. L.J. 457, 462 (1986) (noting that "classification of minority students into a collective, homogeneous body, funneled into segregated remedial classes branded these students as different and caused their failure to fully integrate on campus"); Roach, supra note 329, at 675 ("[A] 'message of incompetence' or failure can be telegraphed to the student in a myriad of ways, including actions by professors who have lower expectations of minority students. In short, it seems apparent that minority student isolation may be more extreme than that of traditional law students, with far-reaching effects on self-esteem and motivation."). Return to text.

[341] Espinoza, supra note 338, at 286-89. Return to text.

[342] Id. at 288. Return to text.

[343] Id. at 290. Return to text.

[344] Id. at 289. Return to text.

[345] See generally Nerissa Bailey-Scott Skillman, Misperceptions Which Operate as Barriers to the Education of Minority Law Students, 20 U.S.F. L. REV. 553, 554 (1986). Skillman points out that the primary misperception that operates as a barrier to the education of minority law students is that both "faculty and students often misperceive the academic standard for minority students as being one of survival, rather than excellence. . . . Psychological studies have shown over and over again that a subject's level of achievement will be determined by the experimenter's articulation of the standard to be achieved." Id. Return to text.

[346] See infra part VI, discussing the concept of "wise schooling." At my own law school, Touro Law Center in Huntington, New York, we have discovered that by creating an academic support program for all minority students, without regard to statistical indicators, and involving active participation of minority law professors and successful upper-class minority students as teaching assistants, the sense of stigma is significantly reduced and the sense of empowerment is greatly enhanced. Return to text.

[347] See Skillman, supra note 345, at 556. Return to text.

[348] Levin, supra note 312, at 47 (quoting Dr. David Reisman, Harvard law class of 1934). Return to text.

[349] Espinoza, supra note 338, at 289. Return to text.

[350] See supra note 294. Return to text.

[351] See Espinoza, supra note 338, at 289 n.33 (citing Portia Y. T. Hamlar, Minority Tokenism in American Law Schools, 26 HOW. L.J. 443, 536 (1979) (discussing the LSAT's effect, Hamlar cites a Mexican American Legal Defense and Education Fund (MALDEF) study, which notes that "lack of confidence can be a dominant cause of a student's academic problems")). Return to text.

[352] This view has been fueled by reports that suggest that the real or eventual bar passage rates for minorities is "twice their initial rate. . . . Thus, there was only a 2 to 3 percentage point difference between the minority group's share of the test taking population and their share of those licensed to practice." Klein, supra note 4, at 30. Similarly, the New York State Board of Law Examiners, in a letter to the Association of the Bar of the City of New York, responding to that Association's report on admission to the bar in New York, concluded that " 'eventual pass rates' of minority and majority candidates 'demonstrate access by minorities to the profession' and that the bar examination is not a differential deterrent to becoming a lawyer." See REPORT ON ADMISSION TO THE BAR IN NEW YORK, supra note 6, at 14 (citation omitted). Return to text.

[353] Maurice Emsellem & Richard S. Barrett, The Bar Examination Debate (Continued), 16 T. Marshall L. Rev. 531, 534 (1991) (quoting YAMAKI ET AL., supra note 6, at 5) (emphasis added). Return to text.

[354] YAMAKI ET AL., supra note 6, at 5. The Yamaki report indicated that the eventual passage rate for the whole pool of African-American applicants remained (at least in California) at 48%, versus 84% for nonminorities. Id. Furthermore, the failure rates of retakers was 39% for African-Americans, versus 11% for nonminorities. Id.; see also Emsellem & Barrett, supra note 353, at 534. Return to text.

[355] See generally BELL, supra note 303, at 154 ("Of all the injuries inflicted by racism on people of color, the most corrosive is the wound within, the internalized racism that leads some victims, at unspeakable cost to their own sense of self, to embrace the values of their oppressors.") (citations omitted); see also ARTHUR ASHE & ARNOLD RAMPERSAD, DAYS OF GRACE: A MEMOIR 127-28 (1993). Therein, Arthur Ashe poignantly confesses that

segregation had achieved by that time what it was intended to achieve: it left me a marked man, forever aware of a shadow of contempt that lay across my identity and my sense of self-esteem. Subtly the shadow falls on my reputation, the way I know I am perceived; the mere memory of it darkens my most sunny days. I believe that the same is true for almost every African-American of the slightest sensitivity and intelligence. . . . I don't want to overstate the case. I think of myself, and others think of me, as supremely self-confident. . . . Still, I also know that the shadow is always there; only death will free me, and blacks like me, from its pall.
ASHE & RAMPERSAD, supra, at 127-28. Clearly, if Arthur Ashe, a man who achieved brilliant and unparalleled success in an arena that had been traditionally barred to black people, felt a "shadow of contempt" from which only death could free him, minority law students in a hostile learning environment may also feel the weight of that "shadow". Return to text.

[356] These lessons are exacerbated by the shocking dearth of minority law professors in our nation's law schools. See Espinoza, supra note 338, at 292-93. The absence of minority faculty only serves to reinforce the minority law student's impression that law is a "white man's world," in which it is difficult to see minorities participating as full members. See id. The presence of minority faculty, in more than token numbers, provides

concrete role models for minority law students. They dispel the myth of preordained mediocrity for minorities. . . . Minority faculty, though they may be marginalized and undermined by some, do represent power. Statistically, their presence means a higher retention of minority students. Their perceived accessibility creates a resource for advice and support. Minority faculty inspire confidence by their example; they provide perspective by their shared cultural experience.
Id. at 293. (citing, inter alia, Skillman, supra note 345, at 532 (stating that the "study found that the presence of minority faculty had a positive (statistically significant) relationship upon the retention rate of first-year black students")).

In addition, Professor Espinoza observed, "There is indeed a woefully inadequate number of minority law professors. The recent Society of American Law Teaching (SALT) study found that twenty-eight law schools have no minority faculty, thirty-two have only one, twenty have only two, and only fourteen law schools (excluding historically black schools) have more than two minority faculty." Espinoza, supra note 338, at 290 (citing Charles R. Lawrence III, Minority Hiring in AALS Law Schools: The Need for Voluntary Quotas, 20 U.S.F. L. REV. 429, 441 (1986)). Return to text.

[357] Claude M. Steele, Race and the Schooling of Black Americans, THE ATLANTIC MONTHLY, Apr. 1992, at 68, 75 (observing that "[w]ise schooling may indeed be the missing key to the schoolhouse door"). Return to text.

[358] Id. at 75. Return to text.

[359] Id. The author illustrates the success of this approach with a comparison to the movie Stand and Deliver, which tells the story of Jaime Escalante, a math teacher who utilized a similar technique of "assurance and challenge" to teach inner city kids at an East Los Angeles Chicano school to master calculus and ultimately to "ace" the state math exams. Similarly, in describing the unparalleled success experienced by Xavier University in producing record numbers of black medical students, a spokesman said, "What doesn't work is saying, 'You need remedial work.' What does work is saying, 'You may be somewhat behind at this time but you're a talented person. We're going to help you to advance at an accelerated rate.' " Id. at 75-76. Return to text.

[360] Id. at 78. The author observes that "[h]ere psychology is everything: remediation defeats, challenge strengthens—affirming their potential, crediting them with their achievements, inspiring them." Id.

A striking example of the power of such psychological factors was highlighted in a recent New York Times article on the work of Professor Steele, who is a professor of sociology at Stanford. See Ethan Watters, Claude Steele Has Scores To Settle, N.Y. TIMES, Sept. 17, 1995, § 6 (Magazine), at 45, 45-46. In describing experiments that Professor Steele had conducted, the author observed that

Steele . . . has a different take [than other scholars on why African-Americans score significantly worse on standardized tests the whites]. While they have tried to find an answer to the black-white testing gap by analyzing factors like economic status, family structure and educational opportunities, Steele has looked into the test-taking situation itself and has found new evidence of "a beast" stalking black test takers.
"Our idea," Steele says to the group, "was that whenever black students concentrate on an explicitly scholastic task, they risk confirming their group's negative stereotype. This extra burden, in situations with certain characteristics can be enough to drag down their performance. We call this burden stereotype vulnerability." In the first experiment Steele describes, he and Joshua Aronson from the University of Texas gave two groups of black and white Stanford undergraduates a test composed of the most difficult verbal skills questions from the Graduate Record Exam. Before the test, one group was told that the purpose of the exercise was only to research "psychological factors involved in solving verbal problems," while the other group was told that the exam was "a genuine test of your verbal abilities and limitations." "This is what we found," Steele says, placing a transparency onto the overhead projector. As the information in the bar charts sinks in, people sit up in their chairs. There are several audible "hmmms," a muffled "wow!" Then a professor at the back of the room asks: "Did you give the groups the same test?" Steele smiles and says, "Yes." The question speaks to the startling nature of the results. As the graphs indicate, the blacks who thought they were simply solving problems performed as well as the whites (who performed equally in both situations). However, the group of black students who labored under the belief that the test could measure their intellectual potential performed significantly worse than all the other students. Steele's idea of stereotype vulnerability is not that the student consciously or unconsciously accepts the stereotype (as other social scientists have speculated), but rather, as Steele says, that they have to contend with this whisper of inferiority at the moment when their mental abilities are most taxed. In trying not to give credence to the stereotype, Steele theorizes, the students may redouble their efforts only to work too quickly or inefficiently. Id. Return to text.

[361] Steele, supra note 357, at 77. The author also observes that the power of wise schooling is so great that it can even overcome "the barriers of poverty." Id. at 76. In this context, the author relates the story of James Comer, a child psychiatrist at Yale University, who over a 15-year period,

transformed the two worst elementary schools in New Haven, Connecticut, into the third and fifth best in the city's thirty-three school system without any change in the type of students—largely poor and black. His guiding belief is that learning requires a strongly accepting relationship between teacher and student . . . to establish a valuing and optimistic atmosphere in which a child can—to use his term—identify with learning.
Id.

Recently, results of the implementation of Steele's wise schooling at the college level were released. The 21st Century Program, established at the University of Michigan in 1991, was designed to counteract "stereotype vulnerability." See Marilyn Elias, "Inoculating" Minority Students Against Prejudice, USA TODAY, Aug. 10, 1995, at D6; Joanne Jacobs, Affirmative Treatment Enrichment, THE SACRAMENTO BEE, June 28, 1995, at B7. Each year, the program takes approximately 250 freshman (5% of the incoming class) and enrolls them in demanding academic seminars and special study groups. See Elias, supra; Connie Leslie, You Can't High-Jump if the Bar Is Set Low: A New Prescription To Help Black Kids Succeed, NEWSWEEK, Nov. 6, 1995, at 82, 82. The group of students, which includes whites and economically disadvantaged minority students, is selected at random and housed in the same dorm. Leslie, supra. The students are told that they are going to be held to high standards but that they are capable of succeeding. Id. The workshops they attend demand a mastery of their courses beyond the normal requirements and emphasize collaboration on projects. Elias, supra. The results are dramatic.

Outside of the 21st Century Program, black freshmen have a 1.98 grade point average (GPA), while whites have a 2.86. Jacobs, supra. Within the program, blacks average a 2.89 GPA, and whites do about one-tenth of a point better. Id. Not only do blacks who participate in the program get higher grades, but their dropout rate plummets from 30% to 10%. Elias, supra. The cost of the program? About $150 per student. Jacobs, supra. Based on these results, officials at the University of Michigan have announced plans to expand the program to include 25% of incoming freshmen. Elias, supra. Return to text.

[362] See Vaughns, supra note 3, at 429. The author notes that "[a]s legal educators, law faculty are, in fact novices. Although law professors are well adept at 'inundating students with substantive and procedural rules of law, [they] rarely if ever provide any guidance or instructions in methods of learning.' " Id. (quoting Paul T. Wangerin, Learning Strategies for Law Students, 52 ALB. L. REV. 471, 471 (1988)); see also Jay Feinman & Marc Feldman, Pedagogy and Politics, 73 GEO. L.J. 875, 882 (1985). Return to text.

[363] See Douglas D. McFarland, Students and Practicing Lawyers Identify the Ideal Law Professor, 36 J. LEGAL EDUC. 93 (1986). McFarland found that there was a striking difference between students' concept of an ideal professor and how law teachers viewed themselves. Whereas law professors positively valued research and writing, students and lawyers rejected these priorities in favor of concentration on classroom instruction. See id. at 103. Return to text.

[364] I recall with amusement and surprise my own entry into academics on the raised side of the lectern. In essence, the administration and faculty said, "Here is your class roster of students and schedule of when the class meets, there is your classroom, good luck and good bye!" I am sure that every law professor has had a similar initiation into the mysteries of law teaching. Return to text.

[365] Rachel F. Moran, Commentary: The Implications of Being a Society of One, 20 U.S.F. L. REV. 503, 511 (1986). Return to text.

[366] Espinoza, supra note 338, at 292. Return to text.

[367] Moreover, it is interesting to note that in the current first-year class, the top-ranked person is a minority student who was a very active participant in our program. In addition, two other members of the program received the American Jurisprudence Awards for the best exam performance in two different first-year classes.

It is not surprising that until quite recently, our law school had five minority law professors on the faculty, two of whom were women and both of whom were tenured. As a result of leaves of absence and acceptance of visiting professor positions at other law schools, we now have only three minority law professors. Interestingly, for the past two years in a row, the president and vice-president of the student bar association have also been minority students. Quite recently, the editor-in-chief of the Law Review was a minority student and a very active member of our support program as a student and later as a teaching assistant. Last year, two students from our law school were selected to be clerks in the New York Court of Appeals. Both of these students were minorities and had been extremely active members of our support program as first-year students and later as teaching assistants. One of those students was an editor on the Law Review, and both were graduated in the top 10% of their class. Clearly, as suggested earlier, there appears to be a definite correlation between the presence of minority faculty members and the success of minority students.

Most importantly, we have a dean and an administration who fully support and fund our academic support program and participate in an ongoing and critical evaluation of our progress, our needs, and our performance. Finally, a survey of the program's graduates reveals that they perceive that it has truly made a difference in their educational success. Return to text.

[368] 709 F. Supp. 345 (S.D.N.Y. 1989); see supra part III.B.5. Return to text.

[369] 420 F. Supp. 211 (E.D. Va. 1976), aff'd, 598 F.2d 1345 (4th Cir. 1979). Return to text.

[370] See supra part III.B.5.b. Return to text.

[371] See supra note 270 and accompanying text. Return to text.

[372] See supra notes 278-80 and accompanying text. Return to text.