The July 2020 bar exam resembled a harsh game of musical chairs. Jurisdictions postponed the test, limited seats, switched formats, and announced last-minute changes. Candidates struggled just to stay in the game.
Rather than devoting 10 weeks to intensive study, while forgoing income and family time, most of them spent double that time in bar-prep purgatory. In New York and other states, the “July” bar exam didn’t occur until October.
For candidates with the resources to wait, the delay paid off: Pass rates rose in many jurisdictions. In New York, the overall pass rate rocketed to 84% on the October exam, which was administered online—compared to just 65% on the July 2019 exam.
But for candidates who lacked those resources, the pass rate was 0%. That is the dark side of this year’s summer/fall bar exam: More than 8,000 qualified candidates never took the exam.
The National Conference of Bar Examiners reports that about 38,000 candidates took one of the exams that states offered between July and October 2020. But 46,370 candidates took the July 2019 bar exam. Law schools conferred more JDs in 2020 than 2019. So why did the number of bar takers plunge by almost one-fifth?
Some graduates secured licenses through pandemic-based diploma privileges or supervised practice, but those numbers were small. Most of the missing bar takers are qualified candidates who could not overcome the obstacles that the pandemic and bar examiners placed in their way.
The number of repeaters taking the exam fell even more dramatically, from 2,155 in July 2019 to just 146 in October 2020. Some of those candidates may have taken the exam in other states, hoping to transfer their scores to New York, but the national numbers suggest that most simply opted out of the exam.
Bar Examiners’ Indifference Favored the Few
Why would thousands of law school graduates postpone, perhaps indefinitely, their dream of practicing law?
The burdens of taking the bar exam, which always exact a heavy toll, became intolerable for some candidates this year. Covid-19 sickened their parents and grandparents; employers laid off their spouses and other family members; schools and libraries closed, depriving them of quiet places to study; and lockdowns sent children home, where they demanded full-time attention.
In most states, courts and bar examiners remained indifferent to these challenges. Despite a flood of petitions describing the difficulties that parents with young children, Black and Latino graduates, candidates with disabilities, and candidates from low-income backgrounds would face in taking a bar exam, most courts refused to consider alternative paths to licensure.
Instead, many bar examiners and courts aggravated the obstacles by delaying decisions, limiting seats, and changing course.
Law schools recognized the seriousness of the pandemic in March, and pivoted within days to online classes. Practicing lawyers, similarly, adapted quickly to retain clients. Many courts and bar examiners, conversely, procrastinated and vacillated.
Financially secure candidates with few family responsibilities were able to weather those reversals, along with other burdens imposed by the pandemic. Candidates with fewer financial resources or greater family responsibilities had to relinquish their ambitions.
Fewer Test Takers, Higher Pass Rates
The fall-off in exam takers helps explain the rise in pass rates: Only candidates with the resources to navigate pandemic-related obstacles took the exam.
Those fortunate candidates also had the resources to purchase the best bar preparation courses and devote extended time to the memorization that the bar exam requires. The high pass rates on the 2020 exam underscore that the current bar exam is a test of resources—not of competence to practice law.
Why did courts and bar examiners adhere to a path destined to favor candidates with resources while excluding so many others? They insisted that a traditional bar exam was essential to protect the public.
Sadly, that rigidity may have the opposite effect. The public’s need for legal assistance has soared, yet some states will license many fewer lawyers this year than last.
Even high pass rates couldn’t compensate for the smaller number of candidates who survived this year’s gauntlet.
Clients facing evictions, job loss, and domestic violence will miss those thousands of lawyers. These clients are unlikely to feel “protected” by their state court’s insistence on an exam that, according to substantial research, bears little relationship to the skills and knowledge new lawyers need.
Clients will also note a lessened diversity in the new lawyers available to them. The pandemic disproportionately burdened women, people of color, and people with disabilities. Candidates in those groups were most likely to find the heightened burdens of the bar exam unbearable.
More Openness, Agility Needed
The pandemic demonstrated that we need more openness and agility in our licensing process. We trust a single organization to produce most of our exams, and then ask small, overworked staffs to administer those tests. That’s a recipe for outdated methods and resistance to change.
It’s time for all lawyers to pay more attention to licensing. What does research tell us about the competencies lawyers need to serve today’s clients? What new options for assessment are available? Can states grant reciprocity without NCBE’s uniform exam? Perhaps a brighter future awaits.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Deborah Jones Merritt is a distinguished university professor and the John Deaver Drinko/Baker & Hostetler Chair in Law at the Ohio State University Moritz College of Law.
Claudia Angelos is a clinical professor of law at New York University School of Law.
Andrea A. Curcio is a professor of law at Georgia State University College of Law.
Patricia Salkin is provost of the graduate and professional divisions of Touro College.
All four authors are members of the Collaboratory on Legal Education and Licensing for Practice, a group of 10 scholars who have studied and written about the bar exam, licensing, and legal education for many years. Affiliations are listed for identification only; all authors contributed to this column as individual scholars and not as representatives of their respective institutions.