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Racial Gaps in Bar Passage Force Reckoning With Legal Education

June 23, 2021, 6:29 PM

Paving a path for minority lawyer candidates needs to start well before law school to tackle long-standing racial disparities, attorneys said.

“The pipeline begins with the legal profession playing a role in addressing inequality in the education system—K through 12,” said Dayna Bowen Matthew, dean and Harold H. Green professor of law at the George Washington University Law School.

The law profession, still struggling to diversify its ranks, faces new data showing significant gaps between White law graduates and minority law graduates—most notably, at the bar level. An ABA survey, released Tuesday, found that White law school graduates were more likely to pass the bar exam than test takers from other racial and ethnic groups in 2020.

Those gaps are forcing the legal profession to reckon with persistent disparities between White and minority students. Closing those gaps means addressing root causes and weighing changes to law school curricula, faculty and student diversity, and how much weight to give the bar exam, attorneys said.

“What I think needs to happen is that the legal profession has to wake up and take account for the fact it is our privilege and responsibility to correct the fact that our current system produces an inequitable access to justice. Justice, equality, and our democracy cannot continue to thrive under these circumstances,” Matthew said.

Boosting diversity means the legal profession should get creative and explore opportunities beyond the bar exam, she added. That could include apprenticeships, holistic admissions, additional financial aid for underrepresented populations, and expanding use of diploma privilege, which allows young lawyers to enter the field without first passing the bar.

“Without these type of changes, all we’re doing with the bar is privileging a test that serves as the kind of barrier to entry that rewards those privileged to excel in an inequitable education system in the first place,” she said.

Bypassing the Bar

Diploma privilege got a boost last year because a handful of states, including Washington, Oregon, and Utah, temporarily allowed it in response to hardships from the pandemic. Wisconsin and New Hampshire were the only states that allowed diploma privilege before last year.

More than 1,500 were admitted to the bar via diploma privilege in 2020, compared to the roughly 350 grads who were admitted via privilege in the preceding two years, according to the survey.

California and several states that moved their tests online for the first time last year also reported an upswing in passage rates.

“The most important thing that the ABA can do is to unequivocally support alternative paths to licensure through supervised practice, clinical or experiential education or a program like the Lawyers Justice Corps,” Marsha Griggs, associate law professor and director of academic support and bar passage at Washburn University School of Law, said in an email. “If the bar exam is a known impediment to access to the legal profession, it is beyond time that our accrediting bodies recognize alternative measures of professional competence.”

While legal programs can be tweaked to meet students’ needs, getting them into law school is the first hurdle.

“Law schools are limited to the number of people of color with bachelor’s degrees,” said Bill Adams, managing director of the American Bar Association’s accreditation and legal education. “Until that universe is expanded, law schools will continue with their efforts to recruit diverse candidates.”

Now, that the report is public, law schools and firms, the ABA, and the entire education pipeline have to ask themselves a series of questions, including how to help students prepare for college, upgrade curriculum by discussing how the law applies to current race and ethnicity issues, and diversify classrooms for better student-teacher relationships, Matthew said.

This new data from the ABA should serve as a wake up call and an opportunity for the industry to emphasize “that the ideal of equality and equal justice for all—those words that are emblazoned over the entrance to the United States Supreme Court—will mean nothing if we do not act on changing the status quo,” Matthew said.

To contact the reporter on this story: Ayanna Alexander in Washington at aalexander@bloomberglaw.com

To contact the editors responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com

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