GUESTS IN ANOTHER'S HOUSE: AN ANALYSIS OF RACIALLY DISPARATE BAR PERFORMANCE

CECIL J. HUNT, II[*]

Copyright © 1996 Florida State University Law Review

I. INTRODUCTION
II. THE ABSENCE OF DATA
A. State Practices
B. State Studies
C. Law School Admission Council Bar Study
III. JUDICIAL CHALLENGES TO THE BAR EXAMINATION ON THE BASIS OF UNLAWFUL RACIAL DISCRIMINATION
A. The Judicial Record
1. Tyler v. Vickery
2. Parrish v. Board of Commissioners of the Alabama State Bar
3. Richardson v. McFadden
4. Pettit v. Gingerich
5. Delgado v. McTighe
B. Reflections on the Judicial Record
1. Discouraging History
2. Inhospitable History
3. Irrational History
4. A Bleak Future
5. A Ray of Hope
a. Equal Protection
b. Title VII
IV. THE MYTH OF THE BAR EXAM AS A TEST OF MINIMUM COMPETENCE
A. Definitional Barriers
B. Measurement Barriers
V. THE CAUSES AND SOURCES OF RACIALLY DISPARATE BAR PERFORMANCE
A. Educational Deficiencies
B. Socio-Psychological Factors
1. The Law School Experience
2. A Hostile Learning Environment for Students of Color
3. A Hostile Learning Environment for Women
4. Academic Support Programs and Stigmatization
5. The Power of Law School Grades
6. Effects on Bar Exam Performance
VI. A MODEST PROPOSAL FOR A SOLUTION TO THE PROBLEM OF RACIALLY DISPARATE BAR PERFORMANCE
VII. CONCLUSION

I. INTRODUCTION

We claim for ourselves every single right that belongs to a freeborn American, political, civil and social; and until we get these rights we will never cease to protest and to assail the ears of America. The battle we wage is not for ourselves alone but for all true Americans. It is a fight for ideals, lest this, our common fatherland, false to its founding, become in truth the land of the thief and the home of the Slave—a by-word and a hissing among the nations for its sounding pretensions and pitiful accomplishments.[1]

W.E.B. DuBois

Prevailing wisdom holds that substantial disparities exist in bar passage rates between people of color[2] and their white counterparts.[3] Some scholars argue that these differences reflect the educational preparation and academic performance of racial groups prior to and during law school.[4] However, such disparate performance also generates concern that the bar examination, the gateway to the legal profession, may be infected with racial, ethnic, cultural, gender, and/or economic bias unrelated to the competent practice of law.[5] To the extent that such bias prevents other wise capable law graduates from entering the legal profession, it is a serious problem.[6]

The issue is not new. Bias in the examination process has been observed in one form or another for over sixty years, but any serious effort to recognize or correct this problem has been stymied by three interrelated factors.[7] First, there is a scarcity of comprehensive, accurate statistical data to confirm racial disparities in bar passage rates over time and across jurisdictions. Second, courts consistently demonstrate an unwillingness to consider judicial remedies as an appropriate response to any aspect of the disparate bar passage problem. Lastly, there is a surprising lack of thorough, sensitive analysis of the causes and the sources of such racially disparate bar performance. This Article analyzes each of these three interrelated factors.

Part II examines the widespread practice of forbidding the collection of hard data documenting the performance of bar candidates along racial or ethnic lines in virtually every jurisdiction. In reviewing the history of this practice, the Article identifies a correlation between the banning of such data collection and the entry of large numbers of minorities into law schools. The proffered rationale supporting this practice is reviewed, and recommendations calling for its reversal are made.

Part III examines prior judicial challenges to the bar examination on the basis of unlawful racial discrimination. This part reviews the various constitutional and statutory bases which plaintiffs have utilized and suggests that not only do courts almost universally reject racial discrimination claims against state bar examiners, but they also appear hostile to such actions. The Article explores possible sources and explanations for such hostility and considers their implications.

Part IV confronts and dispels the myth that the bar examination serves as a test to ensure the minimum competence of lawyers.

Part V reviews the major theories, as reflected in the few studies which have been conducted in this area, and explains the causes and sources of racially disparate bar performance. This part analyzes and critiques the prevailing rationale that racial differences in bar passage rates derive from poor academic preparation and performance by minorities at every significant stage along the educational pipeline. This part also confronts the logical conclusion of this theory—that the only solutions to the present problem are long-term and must occur long before minorities come to the bar exam.

This part suggests that to solve the problem of racially disparate bar passage rates, educators do not need to improve the quality of minority candidates but rather to alter the procrustean, negatively reinforcing pedagogical process to which those students are subjected before and especially during law school. In other words, to the extent that any fault can be identified, it does not lie with minority candidates per se, but rather in the educational process which produces them.

Finally, in part VI the Article concludes with a modest proposal for process-based solutions to the bar passage problem, including both long- and short-term applications. While these solutions are designed to be applied at every level of the educational system, their primary utilization should be in the law school teaching and learning process.

Law school pedagogical paradigms have remained essentially unchanged for over 100 years. Perhaps the greatest benefit of examining whether bar examinations discriminate along racial, ethnic, and gender lines would be the motivation for a long overdue reevaluation and redefinition of what constitutes a competent attorney—a reconsideration address ing the issue of how best to produce such a person and, ultimately, how to test such a person's competence without unreasonably sacrificing fairness.

II. THE ABSENCE OF DATA

A. State Practices

With the single exception of the state of California, no state regularly collects or maintains data on the race, ethnicity, or gender[8] of its bar examination candidates.[9] As a consequence, virtually no state can claim any accurate knowledge "of the effect of [its] bar examination on minority applicants."[10] What little information which does exist (outside of California) is necessarily anecdotal and incomplete and, therefore, largely unreliable.[11]

Commentators have advanced three reasons to explain the failure of state bar associations to collect a broader scope of data on applicants, including their race, rather than merely collect data on which law school the applicants attended.[12] First, it has been suggested that "some jurisdictions are unwilling to collect information on such a major, volatile, social issue when they see no solution in sight."[13] This observation is particularly troubling when one considers that the practice of barring disclosure or collection of race information in state bar examinations begun in the early 1970s closely parallels the entry of significant numbers of minorities into the nation's law schools.

Second, out of an expressed concern for applicants' privacy interests, some states forbid the collection of racial and ethnic data on bar examination candidates.[14] The validity of this justification weakens if one considers that racial and ethnic data are collected at virtually every other stage of a student's educational experience, from grade school through college and graduate school admissions to employment applications.[15] No such privacy concerns have been seriously raised at any of these other levels, either by those who seek such information or by those who supply it. In fact, by the time minority candidates reach this stage in their educational careers, they are quite accustomed to providing such information at the threshold of every significant standardized examination. Consequently, the failure to collect such data is likely to spark the interest of minority applicants because noncollection is anomalous when compared to their previous experience. The justification to protect privacy is paternalistic and unwarranted, at best. More troubling is the possibility that noncollection is disingenuous as a pretext for more insidious goals. Privacy arguments are probably advanced more to protect the interests of a board of examiners than those of the minority test takers.

The third, and perhaps most popular, justification for the prohibition against data collection is a desire to avoid even the appearance of impropriety or discrimination.[16] Some have suggested that if bar examiners knew the race and ethnicity of each bar taker, somehow that information would be intentionally and deliberately "misused to single out and fail the minority applicant."[17]

Avoiding the appearance of any impropriety is a worthy goal; however, evidence reveals that even this concern is misplaced. For example, the state of California has collected, analyzed, and published data on the races and ethnicities of its exam takers for more than twenty years. In that time, there has been neither controversy nor the privacy violation predicted by those jurisdictions that prohibit the collection of such data.[18] On the contrary, as a consequence of this open information practice, California is at the forefront of confronting the problem of racially disparate bar performance and serves as a model for the rest of the nation in this regard.[19]

B. State Studies

Although the problem of racially disparate bar performance has been known for some time, relatively few states have studied the causes of this disparity or acted to address it. Only California, New York, Florida, Massachusetts, and Washington have undertaken any serious effort to study the problem.[20] While these states' efforts have yielded varying results, they have reached unanimous conclusions with respect to two key points.

First, all of the studies agree that state bar examinations appear to have a discriminatory impact along racial, ethnic, and gender lines.[21] Second, all agree that the collection of racial data on bar takers appears to be essential.[22] In fact, one study concluded that the "[c]ompilation of data regarding bar passage rates of minority law graduates is a prerequisite to any conclusive assessment of claims of racial bias of the bar examination . . . . [T]he proper collection of such data and the preparation of statistics are essential elements of any meaningful reform of the bar examination."[23] Clearly, no one can meaningfully address the issues raised by racially disparate bar performance without a base of hard empirical data regarding the races of those who take the exam and their perfor mances.

C. Law School Admission Council Bar Study

Fortunately, the need for more information is beginning to be recognized and addressed on a national scale. In 1991, the Law School Admission Council (LSAC) began a national bar passage study "in an effort to obtain complete and accurate information about bar passage rates among graduates from ABA-approved law schools, as well as about factors that may influence performance in law school and success on the bar examina tion."[24] Concerned about the legal profession's comparatively few minority members,[25] many major national legal organizations have endorsed this laudable effort.[26] Despite the good faith efforts of many, there has not been any significant change in the numbers of minority lawyers since Secretary of Labor Willard Wirtz more than thirty years ago described "the legal profession as the worst segregated group in the whole economy."[27]

The LSAC bar passage study is an excellent first step in identifying whether there are components of the bar examination "which are unrelated to the practice of law and which have a disproportionate adverse impact upon minority applicants."[28]

However, the value of the LSAC study is limited for a variety of reasons. The study is a single study covering only three classes of graduates from ABA-approved law schools during the years 1988, 1989, and 1991.[29] Moreover, the race, ethnicity, and gender data of bar applicants in the study will not be collected from the boards of bar examiners but rather will be obtained directly either from the law students themselves or from the participating law schools.[30]

For these reasons, this study does not address the real need for bar performance data. An effective determination of the impact of race, ethnicity, and gender on bar examination performance requires a systematic and continuous collection of such data across administrations and jurisdic tions.[31]

Moreover, the task of collecting such data should be the responsibility of each state's board of bar examiners, not the LSAC. The former are charged by their respective state legislatures with preparing, monitoring, and administering a fair and impartial examination and, at the very least, should be routinely required to provide some modest amount of statistical evidence to prove that they are acting impartially and lawfully. Ideally, bar examiners' efforts in this regard should occasionally be subject to independent audits evaluating their performance. However, it should not be left to an outside agency to compile the data essential to judge the performance of the various state boards of bar examiners.[32] This is true because, as a matter of simple efficiency, the boards of bar examiners are in the best position to acquire and maintain data on the race, gender, and ethnicity of their bar applicants and their exam results. It seems quite illogical to ask such boards not to discriminate among its bar applicants on the basis of race, gender, and ethnicity but then to fail to require them to obtain and maintain sufficient data to determine whether they are ful filling that mandate.

A revealing analogy can be found in the area of racially discriminatory lending practices by banks. Racial discrimination in lending is explicitly prohibited by federal law.[33] Moreover, in order to monitor the financial industry's compliance with these statutory mandates, lenders must collect, maintain, and disclose the number of mortgage applications they receive and their lending decisions with respect to each one, on the basis of the census tract, income, race, and sex of the applicant.[34]

On the basis of the data which the law requires lenders to collect and maintain on the race and results of mortgage applicants, startling empirical findings showed that blacks with the same income as whites were more than twice as likely to be denied approval for home mortgages.[35] Similarly, a now famous study conducted by the Federal Reserve Bank of Boston revealed that, even after correcting for all relevant differences among applicants, blacks were still turned down almost sixty percent more often than similarly situated qualified whites.[36]

This empirical evidence of such stark racial disparities in mortgage lending has led many to view the numbers as evidence of clearly illegal racial discrimination by banks.[37] Others disagree regarding the meaning and significance of the numbers.[38] However, it is clear that the entire current debate over the possibility of lending discrimination would be significantly less focused without the supporting data that lenders were required to collect, maintain, and disclose in order to monitor their com pliance with the federal mandate not to discriminate.

That statutory scheme appreciated that the lenders themselves are in the best position to collect and disclose the data on their mortgage applicants. Moreover, without such comprehensive and continuous collection of information, it would be impossible to determine whether the banks are in fact discriminating along racial lines. Similarly, the various boards of bar examiners are in the best position to collect and disclose the data on their bar exam applicants; without such comprehensive and continuous collection of information, any effort to determine definitively whether the boards are discriminating along racial, ethnic, or gender lines will be significantly and unnecessarily burdened.

III. JUDICIAL CHALLENGES TO THE BAR EXAMINATION ON THE BASIS OF UNLAWFUL RACIAL DISCRIMINATION

A. The Judicial Record

It is well-settled that states have a legitimate interest in regulating the admission of attorneys to their respective bars by imposing a standard of licensing that ensures competence and thus protects the public.[39] As the United States Supreme Court noted in the oft-cited case of Schware v. Board of Bar Examiners:[40]

A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. . . . Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards or when their action is invidiously discriminatory.[41]
1. Tyler v. Vickery

Tyler v. Vickery[42] is one of the earliest, and most frequently cited, judicial challenges to the bar examination. Tyler involved a consolidation of a number of suits into a class action "on behalf of all black persons who have taken and failed the Georgia Bar Examination and have not been admitted to the practice of law in Georgia, as well as all black persons who will take the examination in the future . . . ."[43] The plaintiffs claimed that the Georgia Bar Examination violated the United States Constitution on both due process and equal protection grounds.[44]

The plaintiffs' constitutional challenges fell into three categories. They alleged that 1) the Georgia Bar Examiners used the Bar Examination to discriminate purposefully against black applicants on the basis of race; 2) the Georgia Bar Examination inherently violated the equal protection clause of the Fourteenth Amendment due to the highly disparate passage rates of blacks and whites; and 3) the Georgia Bar Examiners violated the applicants' due process rights by not providing a procedure for review of failing grades.[45] The federal district court granted summary judgment in favor of the Georgia Board of Bar Examiners on all three of the plain tiffs' claims.[46] The Fifth Circuit Court of Appeals affirmed the district court's grant.[47] However, in a separate opinion, Judge Adams provided a spirited, eloquent, and well-reasoned dissent.[48]

The uncontroverted facts in Tyler demonstrated that, for a number of years, black bar applicants had failed the Georgia Bar Examination in significantly disproportionate numbers to their white counterparts.[49] As even the circuit court majority conceded, disproportionality "reached a nadir in July, 1972, when each of the 40 black applicants taking the examination failed. On the February and July, 1973, examinations, slightly more than one-half of the black applicants were unsuccessful, as compared to a failure rate of roughly one-fourth to one-third among white examinees."[50]

Notwithstanding these strikingly disparate bar results, the court held that the appellants had failed to establish the requisite showing of intentional discrimination by the Georgia Bar Examiners.[51] In so holding, the court reasoned that a mere showing of a discriminatory motive, even if proven, did not rise to the level of a constitutional violation.[52] Rather, in order to prove such a violation, the appellants needed to show such motives coupled with the opportunity to manifest such motives in discriminatory conduct.[53] In short, the Bar Examiners had to be able to identify a particular test as having been authored by a black applicant in order to discriminate intentionally against him.

The appellants had advanced a novel theory to explain how the examiners could make such a racial identification. They argued that the Bar Examiners could identify black applicants in the grading process by virtue of their use of a Southern patois that they referred to as "Black English."[54] However, the court rejected this theory on two grounds. First, the plaintiffs' own expert acknowledged that this dialect was not limited to blacks but was, in fact, characteristic of the Southern dialect generally.[55] Second, the plaintiffs' expert acknowledged that it was quite unlikely that anyone not trained in linguistics would "recognize the use of Black English as a 'black' characteristic, or indeed as anything other than incorrect standard English."[56]

The court also relied on the grading procedure of the Georgia Board of Bar Examiners to decide that the opportunity for racial discrimination was absent. The Board presented evidence that all examination papers were identified and graded anonymously. Throughout the grading process, the identification cards that contained the applicants' names were in the custody of an employee of the Georgia Supreme Court who served as an administrative assistant to the Board.[57] That custodial official, by deposition, swore that examinations were matched with their corresponding identification cards only after the exams were given their final grades.[58] The Fifth Circuit accepted these representations as accurate and held that since the examiners could not discover the race of an applicant, the district court's grant of summary judgment for the Bar Examiners on the appellants' intentional discrimination claim was correct as a matter of law.[59]

The appellants' second constitutional claim alleged that, notwithstanding intent, the Georgia Bar Exam inherently denied them equal protection under the law by disproportionately failing black applicants.[60] As support for this conclusion, the appellants urged the court to apply by analogy the previously-operative standards developed by the Equal Employment Opportunity Commission for employment testing under Title VII.[61]

In 1971, the U.S. Supreme Court had ruled in Griggs v. Duke Power Co.[62] that Title VII prohibited the use of any testing process or procedure, regardless of intent or motive, that disproportionately excluded members of a protected minority unless such tests were "demonstrably a reasonable measure of job performance."[63] The circuit court in Tyler agreed with the appellants that the Georgia Bar Exam violated the first prong of the Griggs Court's interpretation of Title VII because the exam had a disproportionate, adverse impact on black applicants.[64] The court agreed that the Bar Exam also violated the second prong because the examination had never been the subject of a professional validation study.[65]

After concluding its Title VII comparison, the circuit court recognized that "acceptance of appellants' suggested standard of review would inexorably compel the conclusion that the examination is unconstitutional,"[66] but it then avoided this result by holding that Title VII did not apply "by its terms."[67] To support this conclusion, the court rejected appellants' arguments that the Bar Examination was an employment test[68] and found that the Georgia Board of Bar Examiners was "neither an 'employer,' an 'employment agency,' nor a 'labor organization'."[69]

The Tyler Court took pains to explain that, although the Georgia Bar Exam had not been professionally validated as Title VII required and although no alternative means of measuring professional competence had been considered, the conclusion did not necessarily follow that "the 'job-relatedness' of an examination has no relevance to its constitutional ity."[70] However, the court ultimately decided that it was inappropriate to equate Title VII protections with Fourteenth Amendment equal protection requirements.[71] The court based its decision, in part, on a reading of the case law.[72]

The majority also rejected the appellants' alternative strict scrutiny standard of review. The appellants contended that the significant disparity in bar passage rates between blacks and whites created a classification based on race, for which strict scrutiny review was constitutionally mandated.[73] In rejecting the appellants' theory, the court noted that the clear weight of authority held that "an otherwise legitimate classification does not become . . . 'suspect' simply because greater numbers of a racial minority fall in the group disadvantaged by the classification."[74]

However, the court noted that its conclusion did not mean that "any facially neutral method of classification automatically escapes more than minimal judicial scrutiny."[75] Rather, the court presented examples of situations in which a facially neutral classification might trigger a higher standard of review, including 1) when such a classification is "merely a subterfuge for invidious discrimination,"[76] 2) when such a classification is "discriminatorily applied,"[77] or 3) when "statistical evidence of disparate racial impact alone may establish a prima facie case of racial discrimination."[78] The court held that none of these classifications were applicable to the instant case.[79]

The court then applied the rational relationship test to find the Georgia Bar Examination constitutional.[80] In reaching this conclusion, the court noted that an examination should meet two criteria to be rationally supportable: it should "be designed for the purpose for which it is being used," and it should "utilize a cutoff score related to the quality the examination purports to measure."[81]

The Tyler court held that the Georgia Bar Examination satisfied both prongs of this two-part rationality test.[82] The examination satisfied the first prong because both the essay and the multistate portions of the exam were "designed solely to assess the legal competence of bar examinees."[83] The examination satisfied the second standard because, "while the minimum passing score of 70 has no significance standing alone, it represents the examiners' considered judgments as to 'minimal competence required to practice law'. . . ."[84] The court reasoned that because the operative standard of review was one of rational relationship rather than strict scrutiny, the state was not required to show that it had no other less restrictive means of testing applicants but was required to show only that the means it did employ were reasonable.[85]

Finally, the appellants argued that they were denied due process of law by the Bar Examiners' failure to provide a procedure for review of a failing exam should an examinee request it.[86] The appeals court agreed with the district court's holding that such a review process was not constitutionally required because the failed examinee had the absolute and unlimited right to take the examination again at its next administration.[87] Further, the court found that the administrative burdens of a review outweighed any possible benefits.[88] In the court's view, the requested reviews would be time-consuming, expensive, and burdensome to the Bar Examiners and unlikely to be "significantly more effective in exposing grading errors than would reexamination."[89]

The decision in Tyler is interesting and illustrative. Notwithstanding the length and detail of the opinion, the majority's decision appears hostile in its tone towards the appellants' claims. For example, the court described the appellants' arguments as "speculative inferences,"[90] which are not to be "treated indulgently";[91] they were "overly simplistic,"[92] "naked statistical argument[s],"[93] which are "specious,"[94] "devoid of merit,"[95] and "beyond question"[96]—all descriptions making it seem perfectly reasonable that the court should "flatly reject [the] appellants' contentions."[97] Furthermore, the court used all of this language in the context of affirming the district court's granting of summary judgment against the appellants on issues involving motive and intent—a context in which the majority acknowledged that the Supreme Court had admonished that " 'summary procedures should be used sparingly.' "[98] The Tyler dissent drove home this point: "[W]here one of the key factors in determining illegality will be the evaluation of motive, it seems particularly inappropriate to employ the device of summary judgment."[99]

Because the district court granted summary judgment in favor of the Bar Examiners, the appellants never had an opportunity to prove their case at trial. As Judge Adams emphasized in his dissent in Tyler, "[T]he majority decision rests upon a tenuous resolution of pivotal factual issues in a troublesome area of the law where residual doubts . . . should be resolved in favor of the plaintiffs."[100] On the issue of purposeful discrimination, the dissent agreed with the majority that where the state is administering a policy which is neutral on its face, unequal application in and of itself is not a violation of the equal protection guarantee.[101] However, the dissent did observe that such purposeful discrimination "may be evidenced by a systematic, long-continued pattern of unequal results."[102]

The dissent suggested that insidious forces were at work beneath the face of the court's decision.[103] Judge Adams observed that in this case, a clear, historical pattern of racial disparity in the bar passage rate did exist. For the years at issue in the case, 1972 and 1973, 100% of the black applicants who took the Bar Exam failed the first administra tion.[104] In the face of this evidence, Judge Adams concluded:

A colorable case of purposeful racial discrimination is set forth where sustained de facto discrimination is shown together with 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. This is so because a presumption of racial inferiority is simply not permissible.[105]
The dissent quite correctly observed that, given Georgia's poor history of race relations, it was extremely curious that when faced with a 100 percent failure rate of black applicants, six of whom had been graduated from the top law schools in America, the state made no effort to inquire whether the Bar Examiners had unlawfully discriminated against these applicants.[106] It is difficult to understand why a 100% bar failure rate for the state's black bar applicants did not lead to some sort of inquiry by the state's Board of Bar Examiners. Such dismal unanimity would seem to suggest that something is terribly wrong somewhere. It therefore follows logically that, on at least some level, the Georgia State Bar Examiners were not alarmed by such results and did not find them suffi ciently at odds with their expectations for the intellectual performance of their black applicants to warrant either investigation or inquiry.[107] As the dissent observed, this attitude was grounded in the presumption of the inferiority of blacks as a race, an attitude beyond the pale of acceptable state action.[108] The dissent argued its position "based in large measure on the nature of the uncontradicted facts which plaintiffs have advanced to establish a case of racial discrimination violative of the equal protection clause of the fourteenth amendment."[109]

In response to the majority's finding that the Bar Examiners would have difficulty identifying applicants by race, the dissent insightfully observed, "[T]he difficulty of proof does not eliminate its possibility. Surely such difficulty, without more, should not bar, in the context of this case, affording the plaintiffs the opportunity of offering any such evidence at trial."[110]

The majority seemed too quick to believe the evidence presented by the Board of Bar Examiners. In finding no genuine issue of material fact on the issue of intentional discrimination, the majority relied solely on the deposition of the custodian of the identification records, who stated that detailed procedures were in place to ensure the anonymity of the applicants.[111] Notwithstanding the official written procedures, it is certainly possible that the custodian did not follow those procedures. Cross-examination could have uncovered such information at trial. Yet a trial on the merits was foreclosed by the grant, and subsequent affirmance, of sum mary judgment in favor of the Bar Examiners.

The majority's presumption of credibility is also evident in its appli cation of the rational relationship test. In Armstead v. Starkville Municipal Separate School District,[112] the Fifth Circuit had developed a two-part test for determining whether an examination was rational.[113] The second prong required that the examination "utilize a cutoff score related to the quality the examination purports to measure."[114] The only evidence that the Georgia Bar Exam satisfied this standard was the court's unsubstantiated conclusion that the cutoff score "represents the examiners' considered judgments as to 'minimal competence required to practice law'."[115] Judge Adams, in dissent, made clear the oddity of the majority's holding when he wrote:

[T]he selection of cut-off scores, especially when such selection is not subject to review, may be arbitrary. The legality of such decisions may not properly be resolved by mere reference to the good faith judgment of the bar examiners.[116]
Similarly, the majority's refusal to apply strict scrutiny review in this case was suspect in light of the court's decision just three years earlier in Baker v. Columbus Municipal Separate School District.[117] As the dissent pointed out, this same court had held in Baker that " '[w]henever the effect of a law or policy (use by school district of a 1,000 cut-off score in the National Teachers Examination as a condition of employment) produces . . . a (significant) racial distortion it is subject to strict scrutiny.' "[118] Curiously, in attempting to distinguish Baker, the majority argued that the holding therein had been based on "an explicit finding of purposeful racial discrimination."[119] Yet, in this case, by affirming the grant of summary judgment below, the court foreclosed the appellants from any opportunity to establish such similarly purposeful racial discrimination and justifiably to invoke strict scrutiny analysis at trial.[120]

2. Parrish v. Board of Commissioners of the Alabama State Bar

Ironically, a short time after deciding Tyler, the Fifth Circuit reviewed the grant of summary judgment in a similar claim of intentional discrimi nation, this time brought by a class of black plaintiffs against the Alabama State Bar Examiners. In Parrish v. Board of Commissioners of the Alabama State Bar,[121] a class of black bar applicants appealed a grant of summary judgment. At the lower level, the black bar applicants had challenged the constitutionality of the Alabama Bar Examination on two grounds: (1) that the Bar Examiners intentionally discriminated against black applicants by identifying their supposedly anonymous exams and "grading them lower than white applicants who displayed equal proficien cy,"[122] and (2) that the examination was invalid under Title VII standards because it was not "sufficiently 'job-related' "[123] and "fail[ed] blacks in disproportionately high numbers compared to whites."[124] In support of this latter claim, the appellants had presented uncontroverted evidence to the district court that over the last ten administrations of the Bar Examination "the passing rate for blacks had been 32% while it had been 70% for whites."[125]

On appeal, the plaintiffs argued that summary judgment had been granted despite the fact that they had not yet completed discovery of documents that contained facts essential to opposing the defendants' motion for summary judgment.[126] Specifically, the plaintiffs sought copies of all answer sheets for the February, 1973 Bar Exam in order to demonstrate that "substantially identical answers were graded discriminat orily on the basis of race."[127] The Bar Examiners claimed that these documents were neither relevant nor material to the allegations in the complaint and refused to produce them.[128] Relying on its recent Tyler holding, the circuit court held that the trial court should have required production of the examination documents requested by the plaintiffs.[129] The court reasoned that its finding in Tyler was premised, in part, on the fact that the plaintiffs had been provided with all of the examination papers, though they had still failed to establish any connection between race and examination results. According to the court, the plaintiffs in this case "lacked 'the means' (access to the examination papers) and thus were not saddled with 'the duty' to bring the pertinent facts forward"[130] to show a connection between race and examination results.

However, in sharp contrast to its reasoning in Tyler, the Parrish court held that "we are compelled to recognize that a plaintiff has a right to challenge the sworn affidavits used to support a motion for summary judgment by discovery in order to meet such a motion just as he is entitled to challenge sworn testimony on a trial."[131]

The plaintiffs in Tyler were not afforded such an opportunity to chal lenge the sworn affidavits of the Bar Examiners and their agents. Rather, the Tyler court accepted the Bar Examiners' representations as truthful, based solely on the court's belief in the affiants' good faith.

The Parrish plaintiffs' allegations of intentional discrimination were leveled at Bar Examiners who expressly required that each examination applicant provide a photograph with his or her application.[132] In this context, contrary to Tyler, the court stated that "the fact that the defen dants required a clearly racially identifiable application form to be filed for the taking of examinations without question put it within the power of the defendants to utilize racial identification as an ingredient in the grading of the examination papers."[133]

Although the circuit court noted that the state had a compelling interest in identifying its attorneys once they had been admitted to practice, it rejected this justification for requiring a photograph prior to admission.[134] Undisputed testimony revealed that the photographs were, in fact, never used for the purpose of verifying the identity of persons who actually sat for the Bar Examination.[135] Thus, the court found that Alabama's requirement of a photograph with each Bar Examination application created an "opportunity for discrimination, which if coupled with statistics showing a prima facie case of racial discrimination as was present in the jury selection cases, would deny appellants equal protection of the law."[136]

In Parrish, the plaintiffs also argued that statistical evidence showing substantial differences between the bar passage rates of blacks and whites[137] amounted to a constitutional deprivation by requiring blacks to pass a bar examination that had not been validated "in the sense that this term is used under Title VII of the Equal Employment Opportunity Act."[138] The plaintiffs cited the Supreme Court's decision in Griggs v. Duke Power Co.[139] in support of their argument.[140] However, between the original disposition of Parrish at the trial level and its later consideration on appeal by the Fifth Circuit Court of Appeals, that same court had just recently decided the case of Tyler v. Vickery.[141] In Tyler, the plaintiffs made the same test validation argument that was presented in Parrish and the appellate court rejected it by concluding that the act did not apply to the Georgia Board of Bar Examiners because the scope of the statute was expressly limited to employers, employment agencies, and labor unions,[142] and the Board satisfied none of those jurisdictional categories.

Relying on its decision in Tyler, the Parrish court rejected the plaintiffs' test validation argument by simply noting that, since it had recently held that Title VII did not apply to the Georgia State Bar Examiners because they were not an employer, they saw no basis for "distinguishing that case from the Alabama case now before us."[143] However, the court did nevertheless reverse and remand the case back to the trial court—but only on the limited issue of allowing the plaintiffs an opportunity to complete discovery of relevant documents before the trial court could properly consider the defendant's motion for summary judgment.[144]

3. Richardson v. McFadden

The Fourth Circuit addressed the constitutionality of the South Carolina Bar Examination in Richardson v. McFadden,[145] a case in which four black applicants who had failed the exam brought suit against the state Bar Examiners on due process and equal protection grounds. The essence of the plaintiffs' claims in the lower court was that "other applicants at other times appeared to have received more favorable treatment in grading than that which was afforded them."[146]

This case was an en banc reconsideration by the Fourth Circuit Court of Appeals of its prior review of the district court's denial of relief to the plaintiff group. The prior panel affirmed the district court's denial of relief to the plaintiff group except for the individual claims of two members, Spain and Kelly. Regarding Spain and Kelly, the Fourth Circuit had previously held that the "Law Examiners had acted arbitrarily and capriciously, and it directed the district court to order them to be certified as having passed the South Carolina Bar."[147] As a threshold matter in its reconsideration, the court noted that its function was not to determine whether the Bar Examiners had made a mistake in individual cases but, rather, to ascertain "if there [had] been a denial of due process or of equal protection . . . [since n]ot every erroneous determination mounts up to a denial of due process or equal protection."[148] The court then found that the appellants Spain and Kelly were not entitled to individual relief.[149]

In rejecting their claims, the court found that "of the aggregate 828 examinations given during the eight times that the bar examination was administered over a four-year period, only these two [plaintiffs'] examples of alleged discrimination were proved."[150] On this record, the court concluded that the plaintiffs had failed to establish "the constitutional discrimination requisite to the granting of individual relief."[151] Having determined that there had been no constitutionally protected denial of due process or equal protection, the court of appeals held that Spain and Kelly were not entitled to individual relief.

4. Pettit v. Gingerich

In Pettit v. Gingerich,[152] a case strikingly similar to Tyler, a class of black plaintiffs brought suit claiming that the Maryland State Bar Examination was violative of their Fourteenth Amendment equal protection guarantee. The district court granted summary judgment for the Bar Examiners.[153]

The plaintiffs claimed that the Bar Examiners' intentional discrimination was evidenced by the examiners' ability to determine the race of the applicants before the grading process and the disparity in passage rates between black and white applicants.[154] However, relying on Tyler's reasoning, the court held that the issue of whether there had been intentional discrimination was "conclusively disposed of" in the negative,[155] since it found no genuine issue of material fact on the issue of evidence of intentional discrimination.[156] In making such a finding, the court relied on the Maryland State Bar Examiners' sworn affidavits, in which they stated that they did not and could not discriminate.[157]

Regarding the Pettit plaintiffs' claims of inherent discrimination in the Bar Exam, the court held that, based on Tyler and its progeny, "It is well settled that the appropriate standard of review is whether the Maryland Bar examination bears a rational relationship to the state's admittedly valid interests in professional licensure."[158] Moreover, the court observed that the disparate racial impact of the Bar Examination by itself is not enough to "evidence a suspect racial classification and thereby trigger a strict scrutiny analysis."[159] Lastly, the court rejected the plaintiffs' claim that disparate racial results on the Bar Exam required the use of Title VII standards to resolve their Fourteenth Amendment equal protection claim.[160]

Following Tyler, the Pettit court found that the Bar Examination at issue satisfied the rational relationship standard. Although the plaintiffs advanced undisputed evidence that Maryland's Bar Examination did not comport with standards for the educational and psychological tests as published by the American Psychological Association,[161] the court, again relying on Tyler, found these concerns merely indicative of ways in which the test could be improved and not "suggestions of constitutional infirmity."[162]

In addressing the plaintiffs' allegations that the Bar Examiners' cutoff score of seventy percent was arbitrary, the court again relied on Tyler when it held that the cutoff was a "reasonable yardstick by which competence . . . may be determined."[163] However, it did not explain why this cutoff was reasonable other than to note that a number of other states used the same figure.[164]

5. Delgado v. McTighe

While constitutional challenges to state bar examinations have been universally unsuccessful in the South,[165] minority plaintiffs have fared no better in the North. One notable Northern case is Delgado v. McTighe.[166] The plaintiffs in Delgado, three blacks and two Hispanics, claimed that the Pennsylvania State Bar Examination violated their Fourteenth Amendment equal protection rights.[167] Specifically, the plaintiffs claimed that the Pennsylvania Bar Examiners changed the passing scores on the examination arbitrarily and with the intent to discriminate against minority applicants[168] and that the Bar Examination was not rationally related to its objectives.[169]

Unlike Tyler and its progeny, the Delgado plaintiffs' claims were not disposed of summarily by the federal district court. After undertaking a thorough review of the history of black applications to the Pennsylvania bar, the Delgado court admitted, "Frankly, some of the statistics are shocking."[170] However, the court also noted the rather significant efforts undertaken over the years by the Philadelphia Bar Association and the law schools of Temple University and the University of Pennsylvania to study this problem and to suggest corrective measures.[171] The court also noted that the instant case appeared "to be the first time that allegations of discrimination by the Board [had] been subjected to judicial scrutiny."[172]

At the conclusion of a fifteen-day trial, however, the court held that the plaintiffs had "failed to carry their burden of proof with respect to each of the two constitutional violations claimed by them."[173] The court first concluded that the Bar Examiners had raised the passing scores "with the sole aim of determining minimum competence."[174] In reaching its finding, the court implicitly accepted the Bar Examiners' argument that although an initial low passing score had been set when the Multistate Bar Examination (MBE) was added to the Pennsylvania Bar Examination in 1972,[175] the intention had been to raise the score after a review of the test results.[176] It rejected the plaintiffs' allegations that the adjustments violated the equal protection clause by disproportionately affecting blacks and minorities.[177] Responding to the plaintiffs' argument, the court stated that to establish an equal protection violation it was the settled law that plaintiffs must demonstrate that "actions having racially disproportionate impact were done with a discriminatory intent or purpose."[178] The court then found that it could not "draw an inference of discriminatory intent and purpose on the basis of the plaintiffs' showing of a disproportionate impact"[179] since the Bar Examination was neutral on its face and rationally served the important state interest of protecting the public from incompetent lawyers.[180]

In refusing to find discriminatory intent, the Delgado court rejected the plaintiffs' contention that the Bar Examiners had prior knowledge of the adverse effect on minorities of raising the passing score.[181] The court acknowledged that the Board was in possession of an expert's report stating that raising the passing score would have a "profound effect" on the percentage of blacks who passed the Bar Exam.[182] However, it observed that the report also stated, "No matter where the passing score is set, except at the very bottom, more blacks than whites will be failed."[183]

The court did not discuss or analyze whether the discrimination was "a motivating factor"[184] as opposed to the sole motivation. For example, there was no indication that, as a result of the report, the Board analyzed the extent to which the examiners could set a lower passing score that would both ensure competence and have the least racially disproportionate impact on minorities. Indeed, the record demonstrates that once the report indicated that there was not one passing score which had no racially disproportionate impact, the Board did not even attempt to discover whether it could establish a score that minimized that impact without sacrificing competence.[185]

This observation is particularly interesting in light of the plaintiffs' second argument that the Pennsylvania Bar Examination was not rationally related to the Board's goal of ensuring minimum competence.[186] In advancing this argument, the plaintiffs produced a good deal of expert testimony that there were numerous, significant defects in the accuracy and reliability of the Pennsylvania Bar Examination.[187] Moreover, one of the plaintiffs' experts testified that the Pennsylvania Bar Examination was not capable of measuring minimal competence to practice law because the Board had made no determination as to "what constitutes incompetent performance by an attorney."[188]

However, without directly addressing the opinions of the plaintiffs' expert witnesses, the court rejected the plaintiffs' attacks on the Pennsylvania Bar Exam. In doing so, the court held that the appropriate standard of review for judging the constitutionality of a state bar exam under equal protection analysis was whether it bears a "rational relationship" to the goal of ensuring minimum competence.[189]

The court's reasoning on this point was limited to references to Tyler and its progeny. The court concluded from those decisions that other courts had found the use of essay and multiple choice tests to be rationally related to testing lawyer competence, even in the absence of model answers, and even where different graders were using different methods of grading essays[190] and grading on a subjective basis.[191]

The court's apparent unwillingness to address evidence in the form of apparently undisputed expert testimony is quite troubling in what otherwise appears to be a thorough and well-reasoned opinion. Once again, this court, as so many others considering this question have done, appears to have relied too heavily on a presumption of credibility and good faith action by the state Bar Examiners. This tendency is particularly surprising in this case because the tone of much of this court's opinion suggests that it genuinely appreciates the significance of the problem of a racially disproportionate bar passage rate. For example, although the court rejects the plaintiffs' claims and denies relief, it nevertheless concludes by saying that it is "convinced . . . that the Blacks, for reasons which have not been presented in this litigation, are failing the Pennsylvania Bar Examination in disproportionate numbers. . . . [T]he record of their disproportionate failures cries out for an in-depth study to ascertain the reason."[192]

B. Reflections on the Judicial Record

The history of judicial challenges to bar examinations that appear racially discriminatory in their impact has been discouraging, inhospitable, and, to some extent, irrational. The prospect for the future of such legal challenges is bleak.[193]

1. Discouraging History

Courts have ruled in favor of state bar examiners almost without exception.[194] Most often courts dismiss summarily, relying almost exclu sively on the good faith word of the bar examiners themselves, thereby denying plaintiffs an opportunity to have a full and fair hearing in court.[195] As the dissent pointed out in Tyler, summary judgment is particularly inappropriate in cases where motive is a pivotal issue.

Of course, this is not meant as a blanket indictment of state bar examiners across the nation. But given the stakes involved and the troubled racial history of this country, it seems especially unfair to disallow these plaintiffs a chance to have such claims heard on the merits. The trial setting provides an opportunity to test the credibility of the witnesses by cross-examination before a jury, rather than relying solely on their testimony by affidavit.[196] Such uniform losses by these plaintiffs have no doubt deterred others from even attempting to prosecute what may be meritorious claims.[197]

2. Inhospitable History

Historically, courts have been inhospitable to claims of racial discrimination in state bar examinations. As shown previously,[198] the language and tone of many of these courts' opinions has been decidedly condescending, dismissive, insensitive, and hostile to entertaining the plaintiffs' causes of action. The reasons for such an attitude are not altogether clear, although it is not unreasonable to infer that such responses might relate to the fact that the plaintiffs' attacks have been directed at the very system that initially validated the judges themselves. Thus, judges who identify with the current system on some level may perceive an attack on the system as an attack on themselves and their own credibility and worth as products of the current system.[199]

In trying to understand such underlying hostility, it is also important to consider both the geographical and generational context in which these cases arose. Most arose in Southern states, whose history of race relations has been, at best, dreadful, and, at worst, shameful. That sad part of our nation's history saw all levels and branches of government, particularly in the South, conspire to create and perpetuate a system of racial bigotry and white dominance.[200] Perhaps it is idealistic to believe that the 1970s and 1980s saw the disappearance of all remaining vestiges of these attitudes from the minds of state officials, such as members of state boards of bar examiners or the judiciary.

In addition, most of the state officials and judges who reviewed the actions of the various bar examiners grew up during a time when minorities were virtually nonexistent in our nation's law schools. As a result, few, if any, of them had any exposure to minority students or professors in their law school classes. It is not unreasonable to suggest, as the dis sent in Tyler noted,[201] that some of these judges and officials probably still harbored presumptions of racial inferiority about blacks, in general, and aspiring black lawyers, in particular—presumptions that colored their judgment when they considered the plaintiffs' claims of discrimination in bar examinations.[202]

3. Irrational History

Lastly, the history of judicial challenges to bar examinations has been somewhat irrational because of the courts' not infrequent refusal to apply simple logic. In Tyler, for example, the court held that Title VII standards did not apply to the plaintiffs' equal protection claim because, under the terms of the act, the Bar Examiners were not "employers" or "an employment agency."[203] But the plaintiffs had not claimed that Title VII applied by its terms; rather, they urged the court to apply the standards of Title VII by analogy.[204]

The plaintiffs argued that although the Bar Examiners might not be "employers" or "an employment agency" by definition, they so strikingly resembled the categories defined therein that they should be treated the same vis-à-vis their alleged discrimination.[205] In other words, if Title VII prohibits an employer from excluding a minority from a particular job through utilization of an employment test that does not test the skills required for the job in question, why should the bar examiners be allowed to utilize a similar type of test that excludes minorities from working anywhere in the entire state?

Application of rules of law by analogy from one area of the law to another similar area is common practice. In fact, it is done with increasing frequency in many fields.[206] However, although the court in Tyler referred to the plaintiffs' analogical argument in its recitation of the facts, the court did not address it in the analysis or holding. Instead, the court addressed the plaintiffs' claims as if they had asserted jurisdiction under Title VII directly and then dismissed that claim with a wave of the hand in their oft-cited not-an-employer reference.[207]

4. A Bleak Future

For a number of reasons, the future of constitutional challenges to bar examinations is bleak. First, there appears to be a general judicial hostility to any suit alleging racial discrimination by bar examiners. Second, the courts have consistently refused to apply Title VII standards, even by analogy, to bar examination challenges.[208] Third, and perhaps most significantly, the future looks bleak in light of the Supreme Court's recent decision in Wards Cove Packing Co. v. Atonio,[209] wherein the Court implicitly overruled Griggs v. Duke Power Co.[210]

Although courts have consistently refused to apply the standards enunciated in Griggs to bar examination challenges, as long as Griggs remained good law it provided a powerful framework for resolving discrimination claims by giving plaintiffs the hope that they might someday persuade a court to apply its standards in the context of a bar examination challenge.

Under Griggs, a plaintiff who charged an employer[211] with discrimination was initially required to establish a prima facie case of discrimination.[212] That case could consist of statistics evidencing a racial imbalance in the workforce in order to prove a disparate impact by the employer's practices.[213] If the plaintiff was successful in establishing his prima facie case, the burden then shifted to the defendant,[214] who could raise the affirmative defense of business necessity.[215] To the extent the defendant proved such necessity, the plaintiff could then rebut that proof by showing that a less discriminatory standard existed which the defendant had failed to utilize[216] and, that therefore, the defendant's actions were a pretext for intentional discrimination.[217]

Under Wards Cove, the Griggs standard was altered in two very important ways. First, the affirmative defense of business necessity, a rather strict standard and usually difficult to meet,[218] was eliminated.[219] In its place, the defendant now need only show a legitimate business purpose for his practice[220]—a much less stringent standard.[221] Second, under Wards Cove, a defendant has the burden of production only on the issue of business necessity, while the burden of persuasion ultimately rests with the plaintiff.[222] But most importantly, in Wards Cove, the Supreme Court rejected the use of statistics alone as evidence of racial imbalance in the workforce and as probative of the racially disparate impact of an employer's practices.[223] Instead, under Wards Cove, in order to prove a prima facie case, the plaintiff must now establish a narrower comparison between the racial composition of the relevant workforce and the otherwise qualified labor pool.[224] Through its holding in Wards Cove, the Supreme Court signaled a "future constriction of the use of broad statistical comparisons previously allowed under Griggs."[225]

5. A Ray of Hope

a. Equal Protection

Although the future of challenges to bar examinations is bleak, it is not altogether dark. While the courts have refused to apply the highest standard of strict scrutiny in equal protection challenges against bar examinations, there is some evidence that a challenge based on the lower rational relationship standard could be successful. In Sharif v. New York State Education Department,[226] a recent gender discrimination challenge based upon this lower standard, a court struck down as unconstitutional a state educational department policy; the court found the policy not rationally related to the state's purpose.[227]

In Sharif, the plaintiffs sued the New York Education Department for violating the Fourteenth Amendment Equal Protection Clause and Title IX of the Education Amendments.[228] The plaintiffs claimed the department's policy of relying exclusively on high school Scholastic Aptitude Test (SAT) scores in awarding merit scholarships illegally discriminated against females.[229] The stated goal awarding merit scholarships was to reward academic achievement in high school.[230] However, it was adduced that the SAT's primary purpose is to predict academic performance in the first year of college.[231] Focusing on the state's stated scholarship goal of rewarding academic achievement in high school, the plaintiffs made a compelling case that it was contradictory to reward high school achievement based on a test that did not measure such achievement, but rather only potential college performance. By focusing the court on this clear contradiction between the stated goal and the means to achieve the state's policy, the plaintiffs successfully argued that the state failed to validate its exclusive reliance on the SAT as a rational, gender-neutral basis for awarding merit scholarships.[232]

The equal protection arguments successfully advanced in Sharif regarding validation and exclusive reliance on a standardized test could readily be applied to any bar examination challenge. The essence of the argument would be that under the Equal Protection Clause, sole reliance on the bar examination as a basis for admitting attorneys to practice law is not rationally related to the state's goal of ensuring minimum competence among licensed attorneys.

This argument has two components; the first is definitional and the second involves a problem of measurement. The state's goal of protecting the public by ensuring the minimum competence of its attorneys suffers from a serious definitional problem—quite simply, no one has been able successfully to define "minimum competence." And, to the extent such a state of competence does exist, it has not been established whether the bar examination can, in fact, measure that ability.

b. Title VII

Beginning with Tyler, the courts that have considered the issue consistently hold that Title VII is inapplicable to discrimination challenges against bar examinations. Blindly obedient[233] to the reasoning in Tyler, courts find that because bar examiners are neither an "employer" nor "an employment agency," Title VII by its terms does not apply to claims of racial discrimination against state bar examiners.[234]

The scope of the term "employer" under Title VII is quite broad.[235] State and local governments have long been considered employers under Title VII.[236] Thus, because a board of bar examiners performs a sovereign function of the state,[237] it can be argued that these state boards are, in fact, "agents" of the state and should therefore be treated the same as the state. Such an argument is supported by Woodard v. Virginia Board of Bar Examiners,[238] in which the District Court for the Eastern District of Virginia expressly found that a Board of Bar Examiners was an "employer" under Title VII because the Board was acting as the state's agent in performing the function of licensing attorneys to practice in that state.[239] In so holding, the Woodard court said that it was

satisfied that the Board is an agent of the state which unquestionably employs the requisite number of persons. The statutory definition of employer includes agents of persons employing fifteen or more persons. The Board's statutory origin, its role in performing the sovereign function of licensing professions, and the statutory restrictions placed on its authority are the primary factors supporting the Court's conclusion that an agency relationship exists.[240]
Notwithstanding this conclusion, the court found that principles of federalism militated against extending Title VII's test validation standards to professional licensing examinations.[241] On appeal, the Fourth Circuit relied on Tyler in holding that the state Board of Bar Examiners was neither an "employer" nor "an employment agency."[242]

In the year prior to Woodard, the Supreme Court clarified the "employer" issue by holding that an employer covered by Title VII could not escape the Act's jurisdiction merely "by delegating discriminatory programs to [others]. . . . Title VII applies to 'any agent' of a covered employer."[243] Additionally, in Title VII jurisprudence, the Second Circuit has held that the term "employer" is "sufficiently broad to encompass any party who significantly affects access of any individual to employment opportunities, regardless of whether that party may technically be described as an 'employer' of an aggrieved individual as that term has generally been defined at common law."[244] The judicial pronouncement suggests that there is no analytical or policy reason why state bar examiners should not be held to Title VII standards.

IV. THE MYTH OF THE BAR EXAM AS A TEST OF MINIMUM COMPETENCE

A. Definitional Barriers

In an open forum designed as a comprehensive review of its bar examination procedure, the New Mexico Supreme Court found that

[t]he fallacy in the professed rationale [of ensuring minimum competency] for the existence of the bar examination is that none of the expert witnesses could define minimum competency. Not only in New Mexico, but in all states, . . . one is left with the anomalous situation of adhering to a licensing system for the state bar which though purporting to safeguard the public from practitioners who do not meet minimum standards of competency, cannot define the standard it uses. The obvious question is how one can adequately measure a criterion that eludes definition.[245]
Clearly, in order for a bar examination to be a legitimate test of minimum competence to practice law, it must be rooted in a reasonable definition of the very quality it professes to measure. However, not only have bar examiners noticeably failed to articulate a reasonable definition, but they have also failed to enunciate any definition at all.

In Delgado v. McTighe,[246] one of the plaintiffs' experts testified that "the bar examination could not measure minimal competence to practice law unless some determination was made as to what constitutes incompetent performance by an attorney."[247] The American Bar Association's (ABA) Section of Legal Education and Admissions to the Bar issued a report in 1979 that attempted to define lawyer competence.[248] That report identified three basic elements of lawyer competence: 1) the capacity to perform fundamental skills including analysis, legal research, and communication; 2) knowledge of the law and legal institutions; and 3) the ability and motivation to apply skills and knowledge to legal tasks with reasonable proficiency.[249]

Similarly, the American Bar Foundation (ABF) made an attempt to define lawyer competence by utilizing a survey of Chicago lawyers to solicit their views on the skills and knowledge necessary to practice law.[250] That survey compiled the following hierarchy of skills and knowledge comprising legal competence: 1) the ability to marshal facts; 2) the ability to gather facts; 3) the ability to instill confidence in others; 4) effective oral expression; 5) the ability to read and comprehend written judicial opinions, statutes, and other sources of law; 6) knowledge of substantive legal principles; 7) the ability to conduct legal research; 8) the ability to conduct effective negotiations; and 9) the ability to draft precise legal documents.[251]

In commenting on both the ABA and ABF reports, several experts in the field have concluded that "the bar examination does not assure competence in basic lawyering skills, although it does test knowledge of the law and the ability to analyze legal problems."[252] Similarly, others have argued that "the bar examination is totally unrelated to . . . the successful practice of law"[253] and is little more than a memory test.[254] Reports by such experts have concluded that the examination is "indefensible, a psychometric anachronism, on the grounds that it assertedly fails to satisfy the minimum requirements of test validity."[255] A leading critic concluded that it is "unthinkable that a group can study bias in a test without ever having defined that criterion (adequacy of attorney functioning) that the test is to predict."[256] Still other critics have characterized the bar examination as nothing more than an achievement test "designed to assess specific accomplishments in a student's legal education."[257]

Moreover, in an uncharacteristic display of candor, the court in Richardson v. McFadden,[258] although ruling against the plaintiffs' challenge to a bar examination, concluded that the bar examination did not adequately measure lawyer competence:

While the Bar Examiners do not concede that they would lose under [Title VII], we believe the record is inadequate to demonstrate either "criterion" ("predictive"), "content," or Sconstruct" validity under professionally acceptable methods. Thus, if we were to determine that Title VII standards were applicable, it would be necessary to reverse and declare the South Carolina Bar Examination constitutionally invalid.[259]
Significantly, the New York State Bar Association also concluded that the New York Bar Examination did not ensure lawyer competence.[260] The Bar Association commissioned a study on lawyer competence and the Bar Examination.[261] The commission charged with conducting the survey concluded that "[n]either the multiple choice nor the essay examinations can ensure that students have adequate lawyering skills to enable them to engage in the practice of law."[262]

Defenders of the bar examination in its current state counter these criticisms by arguing that there is a strong statistical correlation among the criteria for successful performance on the bar, achievement on the Law School Admission Test (LSAT), and law school grades (LGPA).[263] These statistical correlations clearly indicate, they contend, that candidates who perform well on the LSAT and achieve a high LGPA are more likely to pass the bar.[264]

This analysis forms the basis for arguments that the answer to racially disproportionate bar performance is improvement in the academic preparation of minority law school students both before and during law school. The argument is that increased academic preparation before law school yields higher LSAT scores, which, in turn, produce higher law school grades. And the combination of higher LSAT scores and LGPAs results in significantly higher minority bar passage rates.

This line of reasoning contains at least two fundamentally erroneous assumptions. First, the theory wrongly assumes that the performance on the LSAT is strongly correlated to success in law school. In fact, as a predictor of success in law school, the LSAT is wrong more than fifty percent of the time,[265] and particularly so with respect to minority students.[266]

Second, the theory wrongly assumes that a positive correlation among bar passage rates, LSAT scores, and LGPAs has a direct relationship to bar candidates' abilities to practice law competently. Positive correlations between two different measures, such as LSAT/LGPA and bar passage, may evidence nothing more than the fact that each index is measuring essentially the same thing, that is, the same legal skills and knowledge.[267] While, to those not familiar with statistical analysis, a high statistical correlation "would seem to corroborate the very validity of the bar examination, . . . indeed it should suggest the contrary."[268] As one noted expert in the testing field has concluded, "[A] high correlation is not something you should have striven for in the first place. . . . Why do you want a high correlation? The higher the correlation, the more you're measuring the same thing."[269]

While the bar examination may be an excellent test of the ability to study law competently, it does not necessarily indicate the ability to practice law competently. In fact, legal educators and practitioners now widely acknowledge that the bar examination is really just a rite of passage which "functions more as an exit examination, a law school comprehensive, than as a professional entrance examination."[270] Moreover, many legal experts have concluded that "the bar exam was doing the wrong thing at the wrong time; it tests one's ability to take tests. . . . [E]xaminers should not be trying to validate a person's educational experience, but rather one's character and fitness for practice."[271]

B. Measurement Barriers

The state's goal of ensuring minimum competence through administration of a bar examination also suffers from a significant measurement problem. To the extent that the goal of the bar examination is accurately to screen out those persons who are incompetent to practice law and correctly to identify those who are competent, at best the exam is a highly imprecise measurement that may ultimately cost society more than benefit it. In a study conducted by the New Mexico Supreme Court, one of the expert witnesses identified two groups that the bar examination does not detect particularly well.[272] He described them as "false positives" and "false negatives."[273]

Utilizing a cost/benefit analysis,[274] the expert described the results of a study he conducted in an effort to measure the ability of the bar examination to distinguish between false positives and false negatives:

Hypothesizing, based on his expertise in testing, that the bar examination has a validity coefficient of .30, [he had] calculated that in a state with a bar examination failure rate of 16 percent [84% passage rate], the following would occur: 73 percent of the people sitting for the bar examination would be correctly identified as being competent; 5 percent would be correctly identified as being incompetent; 11 percent unqualified would pass; and 11 percent qualified would fail. If, however, the pass rate were lowered to a 31 percent failure rate [69% passage rate], the following happens: 61 percent of the bar candidates would be correctly identified as being competent; 8 percent of those who take the test will be accurately identified as incompetent; 8 percent will pass the examination though they are incompetent; and 23 percent of the qualified will fail the examination though they are competent to practice law.[275]
As a consequence of his study, Dr. Barrett demonstrated that by changing the failure rate from 16% to 31% the identification of positive-failures increased only slightly from 5% to 8%.[276] However, the false-negatives increased significantly from 11% to 23%, more than double.[277] From this study, Dr. Barrett concluded that "whatever cost there is to failing qualified people goes up very fast. Whatever benefit there is from failing unqualified people is accrued only fairly slowly."[278]

Clearly, excluding qualified applicants from the practice of law and passing unqualified candidates imposes a very high cost on society. This is especially true if a significant percentage of those who are qualified but excluded are members of racial groups that in our society have been historically underrepresented in the law.

The most reasonable way to ensure that qualified applicants pass the bar exam and, in effect, do not become "false negatives" is to apply a very strict analysis to bar examinations. Such an analysis would put the burden on the bar examiners to demonstrate, on an ongoing basis, that their exams have been professionally validated as being maximally capable of identification and exclusion of the incompetent, while being minimally susceptible to exclusion of the competent.[279] Any bar examination that failed to satisfy such standards would hardly be rationally related to the state's purpose and should, therefore, be held to be violative of the Equal Protection Clause of the Fourteenth Amendment.[280]

V. THE CAUSES AND SOURCES OF RACIALLY DISPARATE BAR PERFORMANCE

A. Educational Deficiencies

Fifteen years ago in Delgado v. McTighe,[281] Judge Broderick observed that the record of disproportionate bar failures by minorities "cries out for an in-depth study to ascertain the reason."[282] However, both before and since that time, very little effort has been devoted to discovering the reasons for this disproportionality.[283] Research that does exist in this area reveals one common conclusion. All of the studies agree that, among both minority and white bar applicants, there is a significant correlation among LSAT scores, law school grades, and bar passage rates.[284]

As a consequence of this conclusion, the prevailing wisdom, as noted in Delgado, is that "[t]he 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."[285] In short, many have blamed the causes of disproportionate bar failure rates by minorities on the relatively poorer educational preparation that minorities receive before entering law school. As a result, proposed solutions to the disproportionate failure rate have focused on the long range goal of improving the "educational pipeline" through which minority students pass on the way to law school.[286]

B. Socio-Psychological Factors

However, this long-range view fails to take into account the extent to which "socio-psychological factors"[287] may adversely affect the academic performance of minority students, before and during law school and, ultimately, on the bar examination. The core of this socio-psychological perspective is the self-concept[288] of the minority student in the academic environment and the extent to which it is either positive, and thereby empowering, or negative, and thereby disabling.[289]

1. The Law School Experience

Students at all levels of education tend to perform at the level of the expectations of authority figures around them, especially their teachers.[290] Unfortunately, in law schools, all too many law school professors tend to have low academic expectations for students of color[291] and tend to communicate those expectations to both minority and white students in a myriad of subtle, and not so subtle, ways.

The most obvious way that professors communicate their low expectations for minority students is by failing to call on students of color in the classroom with any frequency. Similarly, when such students are called on in class, their responses are frequently not probed very deeply, nor are their answers followed up on in the general class discussion.[292] These patterns of behavior quickly and clearly communicate a message to the entire class about the extent to which the professor values the voices, contributions, perspectives, and academic ability of minority students.[293]

During my first year as a law professor, a white colleague told me that he was very sympathetic to the plight of minority students in law school. As evidence of this sympathy, he told me that it was his practice not to call on minority students at all in class in order to spare them from the embarrassment and humiliation attendant upon speaking in class. While that professor was obviously motivated by what he perceived to be positive, sympathetic motives, implicit in his comment was an assumption regarding the inability of minority students to contribute to the class discussion if called upon. Or, at the very least, his comments reflected a perception that minority students would be more fragile and thus more negatively impacted than white students by the normal experience of speaking in class.

Quite honestly, I was stunned by my colleague's admission. It seemed clear to me that he had no idea how demeaning and presumptive his comments were about his minority students' abilities. I asked him what he did when a minority student raised his hand to volunteer. His response was that they never did![294]

By refusing to call on minority students in class, my colleague was summoning up within them the memories of the years when they had been held back. They were no doubt reminded of elementary and secondary school where they were similarly excluded from the dynamic of classroom discussion.[295] As a result, it came as no surprise to me that minority students did not volunteer to speak in his class. Unwittingly, he had sent them a message; they had heard it and reacted accordingly.[296]

Minority students who find themselves in a law school environment where they are suspected, rather than respected, by their professors may reasonably feel alienated.[297] That sense of alienation can have a negative impact on their ability to learn and achieve in the classroom. One scholar writing about this process of alienation has observed that "[i]f students are in an environment in which they feel that the instructor does not value their contributions or behaves in a manner that is insensitive or demeaning, whether it be well intentioned or otherwise, such an environment may adversely affect the learning experience."[298]

In this environment, minority law students, although admitted and registered as any other student, are not treated as legitimate members of the law school community. Instead, they are treated as guests in another's house—provided with all of the superficial courtesies of a guest who is told, "Make yourself at home," while made to feel the clear, but unspoken, subtext: "Don't get too comfortable; hurry up and leave soon; but, above all, do not forget that this is really our house, not yours!"

2. A Hostile Learning Environment for Students of Color

Being continually treated as a guest in another's house can create what reasonably may be described as an adverse, and possibly even hostile, learning environment. At the core of this racially hostile environment in America's law schools, there still exist "lingering perceptions that African-Americans (and presumably other minorities) are inherently inferior."[299] America has a long and shameful history of racial discrimination against black people. Much of that discrimination was based on a "scientific" racism[300] that purported to prove through the "general philosophy of biological determinism . . . [that] hierarchies of advantage and disadvantage follow the dictates of nature; stratification reflects biology."[301] As recently as 1964, the eighteenth edition of the Encyclopaedia Britannica described the characteristics of black people as having " 'a small brain in relation to their size,' along with woolly hair."[302]

To be sure, as a nation we have come a long way since 1964. However, it has been perceptively observed that "[f]ew will deny that the racial equality goals that a few decades ago seemed in sight are now further away than ever. . . . Equality, experience tells us, did not follow the enactment of civil rights laws or victories in the courts."[303] Instead of eliminating racial discrimination, in many cases much of the civil rights legislation has done no more than to drive discrimination "underground, where it flourishes even more effectively."[304] The presumption of incompetence, which many law professors and law students have regarding minority law students, provides a vivid and pernicious example of this "underground racism." [305] As we have seen, "expectation is a powerful guide to action."[306] The power of such expectations is particularly strong in the teacher-student relationship. In a report analyzing racial isolation in public schools, the United States Commission on Civil Rights described the well-documented power of such expectations in an educational context by observing that

studies have highlighted the effect of teacher expectations on student performance. In one study, teachers were told that certain students, who actually had been selected at random, had especially high ability. As a result, their own expectations for those students rose and the students' performance markedly improved. It seems likely that a similar relationship exists for student attitudes. Indeed, some studies suggest that students tend to adjust to what they perceive their teachers' expectations to be and to aspire and perform accordingly.[307]
Such presumptions and expectations by law professors generally, but particularly with respect to minority students, can be especially damaging.[308] The "influence of law professors extends well beyond the classroom. . . . [They] are both the gatekeepers and molders of the profession."[309] As a result, to the extent that they conduct themselves with insensitivity[310] in the classroom and act like "Hessian-trainer[s]"[311] with "arrogance transformed into a pedagogical device,"[312] many minorities (and women) will continue to disengage and become alienated from the learning process. This alienation cannot help but have a direct and negative effect on students' academic performance as well as their internal perceptions of intellectual self-worth and confidence. More importantly, majority male students, learning from their professor's example, will carry those negative presumptions and expectations with them into their practice of law, and the same will affect their interactions with clients, colleagues, judges, staff, and applicants for jobs.

3. A Hostile Learning Environment for Women

The sense that the law school classroom may be a hostile learning environment for students of color also appears to apply to women.[313] In a comprehensive study of the graduating class of 1989, Suzanne Homer and Lois Schwartz discovered that most of the women "convey[ed] an overriding sense of isolation and dissatisfaction with what they perceive[d] as a hostile legal educational system."[314] Moreover, their study revealed that these feelings were "not limited to women who were having social or academic difficulties in law school. Women who were 'performing well' often expressed the same feelings."[315]

Their sense of isolation and dissatisfaction was based in large measure on what they described as the dominant white male model of the structure of legal education.[316] Catherine Weiss and Louise Melling identified the same structural and institutional source of women's isolation:

We increasingly saw ourselves as women in a white male community.
The environment reminded us and our men-peers that the profession did not yet reflect women's presence. . . . The physical environment made us feel both invisible, images of women noticeably absent, and conspicuous, incapable of camouflage. Entirely absent were images of women and men of color. These surroundings kept us distrustful, reminding us that the institution that admitted us had traditionally denied entrance to women and people of color. The pictures, the furniture, the male professors—all indicated that the place had always belonged to white men.[317] One of the most significant ways in which women's sense of isolation is manifested is their silence in the classroom. Professor Guinier noted that women described this process as "a dynamic in which [they] feel that their voices were 'stolen' from them during their first year."[318] Similarly, Weiss and Melling describe it as "[t]he drowning of women's speech in a flood of men's voices."[319] This silencing process is apparently so pernicious that even women who had been active class participants in college classes suddenly and startlingly fall mute in the law school classroom.[320]

Many women feel that the burden of silence in the law school classroom falls most heavily on women of color:

[W]omen of color indicat[ed] that they participated less than any other group. Strikingly, a majority of women and people of color indicated that they never asked questions or volunteered answers in class, in contrast to nearly two-thirds of white males who stated that they had done both with some frequency. The data thus confirm what many of us have experienced or observed as law students, and what has been verified by every study which has addressed the issue. Although we are present in increasing numbers in the classroom, we are present only to listen and not to speak.[321]
In addition to the structural and institutional factors described by Professor Guinier and others, Weiss and Melling have identified four additional and interrelated factors that contribute to the silencing of women in the law school classroom. First, they suggest it is a consequence of the hostility many professors and male students feel towards their presence.[322] Second, they attribute it to the law school style of argumentation, which they describe as a "generalized aggression" directed "against every person and every issue."[323] Third, they describe "nonconversation," a type of classroom speech pattern in which primarily men speak only to demonstrate their intellectual and verbal prowess, and no one listens or responds to anyone else.[324] Fourth, they describe a type of male showmanship engendered by "classes dominated by argument or nonconversation."[325]

The hostility felt by women in the law school classroom occasionally manifests itself as "direct derogation of [their] minds and bodies" by their male colleagues.[326] More frequently, however, this hostility is the product of "a kind of willful deafness toward what women-students say, accompanied by an absence of eye contact, a physical turning away."[327] Whether done by their male colleagues, their professors, or both, the insulting, excluding, or drowning out of women in the classroom reflects great pedagogic insensitivity by the law professor. After all, it is the professor who is primarily responsible for such behavior, either through active participation or simply by not establishing a more disciplined classroom environment. Unfortunately, in such hostile environments, classes "become a closed circle of men [that is, some] women start to behave as if they weren't there, as if they didn't deserve to participate as fully in their education as their classmates."[328]

Just like their classmates of color, as well as many other law students, women who are being silenced and suffocated in the classroom pay a very personal price in the form of "genuine and tremendous 'psychic injury'" to their self-esteem.[329] In this respect, Homer and Schwartz found that "57% of women of color, 50% of white women, and 41% of men of color agreed that they no longer felt intelligent and articulate in law school, in vivid comparison to only 25% of white men. . . . [L]oss of confidence was experienced by 43% of women of color, 36% of white women, 30% of men of color, and only 19% of white men."[330] This pattern was so pervasive that the study's authors concluded that white men were having a vastly different experience in law school "from the rest of us."[331] It is, therefore, not surprising to find that with respect to grades in two first-year courses, the study concluded that "women were not . . . performing as well as men, at least in the critical first year."[332] No doubt this results at least partly from the silencing, excluding, marginalizing, and ridiculing environment.

A recent study conducted by the Law School Admission Council (LSAC) on the differences in the law school experiences of men and women concluded there were "wide disparities in the experiences of men and women after they entered law school."[333] Central in these disparities was the finding that many women who overachieved in earlier stages of the academic pipeline tended to perform less well than their male counterparts and received lower grades in law school.

Although the LSAC study failed to identify definitively the underlying causes for these disparities, its author, Dr. Linda F. Wightman, suggested that the disparity was due primarily to what she termed a "chilly classroom environment for women."[334] Moreover, she concluded that at least part of the explanation for these gender-based disparities lay in the fact that "women's self-concept is being undermined"[335] in classroom environments that are cold and inconsistent "with their way of problem-solving."[336] To this extent, the experiences of both women and people of color are quite similar. The law school classroom is for both groups a learning environment that is cold, alienating, hostile, and therefore different from what affects their white male counterparts.

To the extent that performance on the bar exam is in any way correlated to academic performance in law school, the psychic injury done to women and students of color by being isolated and silenced in the classroom reflects itself first in lower academic performance, then, predictably, in lower success rates on the bar exam. As a consequence, their academic performance, especially in the first year, is as much, if not more, a function of such "isolation factors than traditional index numbers like GPA's and LSAT's."[337]

4. Academic Support Programs and Stigmatization

Another source of the low self-image that afflicts minority law students and women is the existence of potentially stigmatizing academic support programs.[338] Although not all law schools have special academic support programs for minority students, the vast majority do, in one form or another.[339] Despite the apparently altruistic motives of such programs, the implicit message that "support programs relay to minority students is not encouragement and empowerment; the message is incompetence and the predictive certainty of failure."[340]

Almost without exception, law school academic support programs select students to participate on the basis of such "objective criteria" as low Law School Admissions Test (LSAT) scores and undergraduate grade point averages (UGPAs).[341] Most academic support programs do not explicitly select students to participate on the basis of race. However, since minority students enter law school with relatively lower statistical predictors, such as LSAT scores and UGPAs, they comprise a highly visible and disproportionate percentage of students who are either invited or required to participate in these programs. As a consequence, even before these minority students attend their first law school class, by having been selected to participate in one of these programs, they have received an implicit message from the law school that says, "You are going to have problems."[342] This message can be particularly negative because, with rare exception, the structure and focus of these special support programs is remedial in nature.[343]

By sending such a negative message to the minority student and the whole law school community, law schools stigmatize minority students. Such stigmatization has the counterproductive effect of "damag[ing] the students' self-expectations . . . [and] creat[ing] self-doubt in the minority student,"[344] effects which surely undermine the potential effectiveness of the programs. With this burden placed upon them from the beginning of their law studies, minority students have tended to adopt an attitude of survival over one of achievement.[345]

As a result, many minority students labor under a type of numbing pessimism and self-doubt, reinforced by their professors, their majority counterparts, and the law school administration. This self-doubt often manifests itself in the form of marginalization and disengagement from the learning process, poor preparation, and, ultimately, poor performance. The manifest expectation of failure becomes a type of self-fulfilling prophecy—feeding upon itself with distressing and devastating results. Unlike the "little engine that could," which surmounted its challenges by reciting the mantra "I think I can, I think I can," minority law students, suffering under the stigmatizing badge of a special and "remedial" support program, must struggle mightily against an official chorus that bellows at every turn, "We don't think you can, we don't think you can." These unreasonable burdens make the plight of the minority law student who fails all the more tragic and the success of the minority law student who excels all the more worthy of praise and admiration. The bitter irony is that an academic support program does not have to be remedial in focus and, therefore, stigmatizing in result. It is quite possible to design, structure, and implement an academic support program that is empowering and challenging in both tone and content. Such programs tend to build minority students up, rather than to weigh them down.[346]

5. The Power of Law School Grades

Unfortunately, within the law school culture, grades matter all too much and exert a pervasive, and sometimes devaluing, power. Ideally, grades should simply be a reflection of academic performance in particular courses at particular times. Instead, they have taken on the significance of being the ultimate metaphysical measure of a student's intelligence and personal value.[347] This emphasis on grades has particularly devastating effects on both minority and majority law students.

In a recent article appearing in the Harvard Alumni Magazine, a survey of the Harvard Law School reunion class of 1969 indicated that due to the law school's " 'scarifying emphasis on grades . . . men of outstanding undergraduate attainment, Rhodes scholars and junior Phi Betes, let mediocre grades in law school convince them that they were mediocre men.'"[348]

If a law school's "scarifying emphasis on grades" can have this effect on the best and the brightest of privileged majority males, who have had every academic reinforcement of their intellectual worth, it is hardly surprising that minority students, many from difficult economic and educational backgrounds, would suffer even more under the weight of this burden. As a consequence, minority law students, who are not performing well academically and who are already numbed by the ambient chorus of intellectual suspicion, see their low grades as a measure of their intelligence rather than their performance.

Predictably, for minority law students, low first-year grades can establish a self-reinforcing negative expectation of failure that feeds on itself in a familiar pattern of self-fulfilling prophesy. In addition, such grade patterns and the expectations that they engender contribute mightily to the prevailing mindset of survival rather than excellence[349]—law school is perceived as an adverse, perhaps even hostile, learning environment, where minority students' prospects are survival at best, failure at worst. As a result, like the elephants in the child's parable,[350] many minority law students continue holding themselves back, failing to succeed, and fearing to take the risk of committing themselves fully to the maximum effort required to excel.[351]

6. Effects on Bar Exam Performance

Coming out of the hostile learning environment of a law school that doubts their intellectual value and tells them so in many subtle, and not so subtle, ways, minority law students then face the bar exam with the anecdotal knowledge that students of color fail on their first attempt in disproportionate numbers. So pervasive is this expectation of failure that it is a matter of common belief among many minority law students that, for them, the first administration is for practice and passing comes later, on their second or third attempt.[352]

However, the student's focus on the eventual passage rate of minorities is misplaced. This is because the very data used to demonstrate the relative parity of the eventual passage rates between minority and majority candidates also discloses that "minority applicants who fail the exam on the first attempt disproportionately do not sit for the examination again."[353]

Consequently, although eventual passage rates may be relatively equal between minority and majority candidates, the rates reflect the ultimate success of only a fraction of the minority candidates who initially took the bar exam. Clearly, focusing on the eventual passage rates is misleading and understates the adverse racial impact of the examination.[354] Permanently losing so many promising and potentially qualified minority applicants because of a seriously flawed examination has a serious effect on the profession and the public interest.

Because so many minority law students focus on the expectation of failure on their first attempt and eventual passage later on, predictably, the self-fulfilling prophecy is fulfilled, at least on their first attempt, with all too great frequency. But approaching the bar examination with a psychological expectation of failure is not an inherent function of being a minority in America. Rather, it is the reasonable and foreseeable consequence of a law school learning environment that tends, from its very beginning, to grind down and devalue the minority candidate's sense of self-esteem, self-worth, and self-confidence. That education has taught the minority student the law, along with deeper and more ominous lessons that only intensify the internal wounds that are the legacy of growing up as a person of color in America.[355] Tragically, for too many law students of color, law school teaches self-doubt and to hold oneself back—to expend less and to expect less.[356]

VI. A MODEST PROPOSAL FOR A SOLUTION TO THE PROBLEM OF RACIALLY DISPARATE BAR PERFORMANCE

Improving the quality of the educational preparation of minority law school applicants, as some have suggested, is certainly a desirable goal. However, it should be pursued for its own sake and not as a solution to the problem of racially disparate bar performance. Current law school applicants, and later bar exam candidates, are perfectly capable of meeting the challenge of excelling in law school and passing the bar if their law school learning environment is significantly improved. By significant improvement, I do not mean to suggest anything having to do with course selection or substantive course content. Rather, I am referring to the negatively reinforcing law school learning environment imposed on students of color by their professors, majority peers, and school administrators.

The best hope for both a long- and short-term solution lies in what Professor Claude Steele describes as "wise schooling."[357] The essential characteristic of wise schooling is a commitment by faculty and administrators to communicate to minority students that they "see value and promise in [them] and to act accordingly."[358] In sum:

The wisdom of these tactics is their subtext message: "You are valued in this program because of your academic potential—regardless of your current skill level. You have no more to fear than the next person, and since the work is difficult, success is a credit to your ability, and a setback is a reflection only of the challenge." The black students' double vulnerability around failure—the fear that they lack ability, and the dread that they will be devalued—is thus reduced. They can relax and achieve.[359]
The keys to wise schooling are assuring, valuing, challenging, and inspiring students. By assuring minority students that they will not suffer a negative blow to their sense of self-worth and self-identity, they are thereby encouraged to risk failure and expend maximum effort. By being valued, the students understand that there are no negative assumptions about their intellectual capacity and ability to learn. As a consequence, minority students are willing to engage in the learning process, confident that they are capable of learning, and, more importantly, confident that they are perceived by the authority figures around them as being capable.

When instructors challenge their students to meet high standards and expend maximum effort, minority students understand that their instructors have confidence in their potential to reach those goals. And, even if they are unsuccessful in reaching them, "[f]rustration will be less crippling than alienation."[360] Inspired students will be willing to strive repeatedly for excellence when they are encouraged to recognize such failures as temporary setbacks, not total defeats. The students will not so easily take failure as a mandate on their personhood and a measure of their intelligence, but more as a challenge. By eliminating the stigma that restrains the spirit to achieve, minority students will be free to reach their true potential. If proof were needed, the fact that "erasing stigma improves black achievement is perhaps the strongest evidence that stigma is what depresses it in the first place."[361]

While the concept of making the student feel valued may sound overly simplistic, it is not easily accomplished. However, when it is, the results can be truly outstanding. The difficulty in accomplishing this goal in the law school culture lies in overcoming the entrenched, negative views of minority achievement potential. In addition, it will require law schools to place a great deal more emphasis on teaching than they currently place. Only in this way will law professors be taught to do something that they now know very little about—how to teach.[362] Teaching, after all, is what law students and their prospective employers expect.[363]

Ironically, there is little or no effort made in law schools to train law professors how to teach effectively.[364] With little or no direction or training in how to teach, law professors do the only thing they can—that is, they teach as they were taught. In so doing, they also "teach what [they] have lived."[365] As a consequence, law professors not only devise their own methods of teaching out of virtually whole cloth, but they also imbue that method with a value system that is socially, economically, politically, and philosophically a product of their own lives and experiences. Many students who do not share the professor's socioeconomic class experiences of the world are left out of this value system and either never break in or suffer a "painfully long adjustment period."[366]

Whether law schools, and law professors in particular, are willing to undergo such a fundamental change in the way they value teaching is an open question. However, whether such wise schooling can be effective in creating more productive and successful students, and ultimately in resolving the problem of racially disparate bar performance, is almost beyond doubt. In the law school where I teach, Touro Law Center, we have developed a nonstigmatizing minority support program that is based on the wise schooling model. The first minority class to complete three years in this program and take the bar examination passed on the first attempt at a rate of eighty-five percent. This class had a greater than twenty percent increase in passage rate over the class before it, and the passage rate differed insignificantly from that of the majority students in the class.[367] Based on this experience, we have every reason to expect this trend to continue.

VII. CONCLUSION

The problem of disparate bar performance along racial lines is very troubling and has only in relatively recent years begun to receive the type of serious attention and study that it deserves. The recently instituted LSAC bar study will accomplish much toward the goal of providing important insights into the true nature and extent of this problem.

However, even the LSAC bar study is inadequate for the task. What is needed is the compilation of comprehensive and ongoing data regarding bar exam candidates and their test results. This can be accomplished only if each state removes the current prohibitions on collecting race and gender data on bar candidates. Perhaps national legislation on this issue is needed in order to ensure uniformity across jurisdictions. But whether instituted on a state by state, or a national, basis, such data is essential to maintaining public faith in the fairness and meaningfulness of the bar exam.

The evidence appears to suggest some measure of widespread, although by no means universal, judicial hostility to bar examination challenges grounded on claims of racial bias. As a consequence, there is a substantially accumulated weight of judicial authority against the prospects of success for such suits. Viewed through this lens, the prospects for future race-based judicial challenges to the bar exam do not appear to be particularly bright. However, there are at least some rays of light that could inspire future plaintiffs and guide future courts having occasion to consider these issues.

The decision in Sharif v. New York State Education Department[368] provides a well-reasoned basis upon which a new generation of judges could revisit the reach of the Fourteenth Amendment's Equal Protection Clause and Title IX of the Education Amendments to protect racial minorities and women from the irrational and inequitable reliance on standardized tests. The decision in Woodard v. Virginia Board of Bar Examiners[369] is also encouraging in view of its finding that, as agents of the state, boards of bar examiners are "employers" within the jurisdictional grasp of Title VII. Although, based on its sense of countervailing federalism concerns, that court declined to extend Title VII's test validation standards to the bar exam, it provided a well-reasoned position on the appropriate reach of the statute.[370] As such, it could provide a firm intellectual foundation upon which to build future cases that would urge that the state be held to the same standards as any ordinary business or trade union, in being precluded from limiting minorities access to employment under the guise of unrelated and irrational testing procedures.

In addition, it also is becoming quite evident to some that the bar examination is not a legitimate test of a student's ability to practice law competently, but, rather, nothing more than a law school synthesizing experience, more akin to a law school comprehensive examination than a professional entrance examination.[371] Some feel that the bar exam does not successfully ensure professional competence and that it statistically, and unfairly, screens out more qualified than unqualified applicants. Too much is at stake for both the bar examination candidate and the public to allow this to continue.[372] As an alternative, some have called for a new, invigorated look into the process of licensing lawyers, in order more accurately to ensure competence, without sacrificing fairness.

The process of revision of the bar examination will take time to complete. In the meantime, the proper focus lies in concentrating not only on the quality of the candidates that sit for the bar exam, but also on the law school educational environment that produces those candidates. Negatively reinforcing law school environments that damage the self-esteem of minorities and women and cause them to disengage and become alienated from the classroom and the law school environment can have severe and damaging effects on the most vulnerable students—effects the significance and duration of which are probably impossible to measure accurately. This damage can, and often does, manifest itself in lower academic performance during law school, as well as in self-fulfilling expectations of failure on the bar exam. There is no pedagogical or structural reason for any law school to maintain such environments, especially when viewed in terms of the enormous, and clearly unintended, costs that they impose on our students. As legal educators, we owe our students more, and we have a moral obligation to lift these institutional and structural barriers to excellence without delay.

Minorities have been underrepresented in the law for a very long time. One of many consequences of this exclusion has been to deprive minority communities of fair access to the legal process and to competent, affordable legal representation. An enlightened society cannot afford to shut so many people out of one of its most fundamental processes. The mark of oppression that has characterized race and gender in our society since its founding can no longer be allowed to exclude otherwise competent law students from full and fair participation in the legal process. Such exclusion is simply an unnecessary and counterproductive waste of valuable human capital. In our current competitive global economy, we waste our precious human resources at our peril.

There are effective and productive models upon which the nation's law schools should structure educational reform. The wise schooling approach offers potentially tremendous, positive results at very little cost. Should law schools and bar examiners truly embrace structural reform, or should law professors resolve to cease being part of the problem and affirmatively seek ways individually to contribute to the solution, the results could yield enormous benefits to the law school environment, to society in general, and to the individual students who entrust their futures and their psyches to us. On the eve of the twenty-first century and in an increasingly diverse world, the costs of maintaining the current legal teaching and licensing paradigms are too high. Should the system remain unchanged, a generation of qualified, idealistic minority and women law students will be marginalized and excluded by teaching and licensing traditions that not only fail to ensure competence, but also sacrifice fairness in the process.