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Rethinking the Bar Exam for Good

April 27, 2021, 8:00 AM

When the Oregon Supreme Court granted diploma privilege to new law school graduates during the Covid-19 pandemic last summer, I suggested to a group of recent Willamette University law graduates that they make the most of the time they otherwise would have used to study for the bar exam.

With my guidance and the support of other faculty members, they established a racial justice task force to do an extensive study of Oregon’s jury selection rules. The 20 new lawyers spent months reviewing explicit and implicit bias in the use of peremptory challenges, which attorneys use during jury selection to remove jurors without having to state a reason.

The group then authored a 40-page report that calls for a significant overhaul of how the challenge is used in Oregon courts and makes recommendations about how to make change. It was recently submitted to the Oregon Supreme Court’s Committee on Bias in the Oregon Justice System.

To do its work, the group relied on skills that are more relevant to the practice of law than the ability to memorize information and pass a multiple-choice test—skills such as legal research, critical thinking, attention to detail, debate, and collaboration. This project offers early and arguably incontrovertible evidence that there are better ways than the current version of the bar exam to measure minimum competency for purposes of admission into the legal profession.

Time to Explore Permanent Changes

The debate surrounding diploma privilege—allowing accredited law school graduates who meet certain academic and ethical standards entrance to the bar without having to sit for the bar exam—is not a new one. But the decision to pause the exams last year by a handful of states now presents us with an opportunity to further explore whether more permanent opportunities exist to assess minimum professional competency. I hope that what initially served as a one-time solution can provide a blueprint for long-term change across the country.

In Oregon, I sit on the Alternatives to Bar Exam Task Force, which is charged with making assessments regarding alternative pathways to admission alongside what changes in rule or statute would be necessary to implement any changes to the admission requirements. The task force will make its recommendation to the Oregon State Supreme Court in June. To see this conversation at a local level about a long-term alternative pathway to admission to the legal profession is both heartening and critically important.

The current iteration of the bar exam is fundamentally unfair to students who can not dedicate all of their time to studying for the test. And the pandemic illustrated at a national level what many of us have known for years: The bar exam in its current form serves as a barrier to a fulfilling law career rather than a predictor of a successful one.

Consider that we ask law school graduates to essentially put their lives on hold for months while they prepare for the bar. It is a tremendous hardship for students who need to work or care for their families. Indeed, it costs almost $7,000 to cover exam fees and expensive study courses, a significant amount for graduates who already paid for an expensive law degree and who are studying full-time instead of working. And data show unacceptable racial disparities in bar passage rates. For example, White students pass the bar at far higher rates than Black students and other students of color.

Moreover, suspending the test requirement last year didn’t hurt our graduates’ job prospects. Our employment numbers are some of the highest they have been in several years. Members of our Class of 2020 could start looking for jobs and start working earlier than they would have if they had to wait for their test results.

More than 1,000 new lawyers were hired in 2020 without taking the bar exam, as more law firms and court officials realize the value of diploma privilege and of not relying on test scores to reassure them about the competency and capability of their new hires.

But let’s be clear: Diploma privilege is not about helping examinees “get out of something” and it’s certainly not a threat to the public. Years of publicly available data empirically reflect that Willamette graduates pass the bar exam.

And recent scholarship has confirmed that even a cursory look at attorney discipline reflects that most lawyers who get into disciplinary trouble are not new lawyers. It’s more often the more experienced lawyers—who have not had any formal or objective tests of their ability to function since their original bar exam—who find their way into professional discipline.

To be sure, there should be some capstone or standard that future lawyers need to meet to gain admission into the bar. But the current bar exam does not measure what makes a good lawyer.

A Call to Fellow Law School Deans

I cannot shepherd this narrative alone. I hope my fellow law deans will join me in helping to reframe the national dialogue around the bar exam. We have a real opportunity now as legal educators to redirect our focus. The principles of law that are tested on the bar are, generally speaking, the law nowhere. But imagine an assessment that tested our graduates on the skills necessary to be successful in practice.

That’s precisely what the racial justice task force did. Our new graduates had to closely study the law and its flaws and identify solutions. A group of students with different opinions and points of view had to work together to reach a conclusion and make a consensus recommendation about how to eliminate bias in criminal jury selection. It tested their leadership and their ability to wrestle with an unpleasant truth about the law and a deeply uncomfortable history of bias in Oregon.

In short, the experience called upon them to rely on skills more closely associated with the practice of law than would sitting for a traditional bar exam.

They showed that we can learn from last summer’s experience and finally move toward a long-term alternative to an exam that we know isn’t a fair or accurate gauge of a good lawyer’s potential to make an impact.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Brian R. Gallini is the dean of Willamette University College of Law, in Salem, Ore.

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