California’s notoriously difficult bar exam came under fresh scrutiny Tuesday as critics told a legislative committee that the high marks required to pass are hurting efforts to diversify the state’s legal profession and bench.
“If we care about diversity and inclusion in the legal profession, and I will assume that we do, then the current bar exam cut score is simply unconscionable,” L. Song Richardson, dean of the University of California, Irvine School of Law, told the Assembly Judiciary Committee.
Richardson was referring to California’s bar exam passing score—known as the cut score—of 144. The number is the second-highest in the nation, behind Delaware’s 145.
Statistics released last year by the bar show that, if the cut score on the July 2018 exam had been 135, the mean passing score of all states offering a test, the overall success rate would have jumped from 42 percent to 63 percent. Gains among certain ethnic groups would have been even more significant. One-hundred nineteen African American students scored 144 or better to pass the July 2018 bar exam. If the cut score had been 135, 268 African Americans would have passed, an increase of 125 percent.
“Because of our outlier cut score, many of our promising and talented law graduates are losing their jobs and increasing their debt,” Richardson said. “So it is abundantly clear that our abnormally high cut score adversely impacts the diversity of the legal profession.
“And if we were to reduce the cut score to at least the national average, we would immediately ensure that the lawyers entering the profession in California come closer to representing our population and also diversity of students who graduate from our law schools.”
State lawmakers convened Tuesday’s hearing to consider why California’s bar and bench do not reflect the diversity of the state’s population. Latinos comprise the largest ethnic group in California at roughly 39 percent of the state’s population. In 2017, the latest demographic figures available, more than 80 percent of attorneys licensed by the bar were white.
Former Gov. Jerry Brown emphasized diversity in his judicial picks. But after eight years of Brown’s appointments, California’s judges are still overwhelmingly white (66.percent) and male (64 percent).
Legislators heard from attorneys about barriers to a law school-preparing education and a lack of mentoring and networking opportunities for both students and young lawyers. But the discussion frequently turned back to the bar exam and, to a lesser extent the LSAT, as a “pipeline” problem, limiting the supply of minority students to the profession.
“The data is very, very clear in how these exams seem to be barring future leaders within the legal profession that represent the diversity of our state,” said Assemblyman David Chiu, D-San Francisco. “I think there are reasons on both sides on why things should or should not change, but from my perspective the burden of proof should lie with the status quo because things have to change.”
After an outcry from law school professors in 2017, bar leaders asked the Supreme Court to reconsider the cut score. Justices left the score at 144, saying they had not seen persuasive evidence, yet, to reduce it.
State bar officials are conducting a study of the skills new attorneys need to practice law in California. The results of that study are expected at the end of the year and could be used to re-formulate the bar exam, its content and cut score.
“We’ll have more information to consider then,” Chief Justice Tani Cantil-Sakauye said in an interview from her San Francisco office Tuesday.
Richardson said the cut score should be temporarily reduced while the study continues “because the diversity of the legal profession in California that we say we care about depends upon it.”
The results of the February 2018 bar exam will be released on Friday.