Study: Higher Bar Exam Pass Score Would Hurt Minorities

John Caher, New York Law Journal, Nov. 20, 2006

Increases in the passing score for the state bar exam would have a blunt and disparate impact on minorities, a new study indicates.

A report commissioned by the Board of Law Examiners to predict the effect of increasing the minimal passing grade on the bar exam reveals that while incremental increases would have a relatively minor effect on white test takers, significant percentages of blacks, Hispanics, Puerto Ricans and Asians would fail the test under higher standards.

The report indicates that among domestic-educated first-time takers, if the passing grade is increased to 675, as is proposed, fully half of the black candidates now sitting for the bar exam would fail.

Additionally, 9.6 percent of the Puerto Ricans who would pass if the minimally acceptable score was 660 would fail if the passing score was raised to 675—compared to an 8.1 decrease in blacks who would pass. However, even with the decreased passage rate, over 71 percent of the Puerto Rican candidates would pass while only 49.8 percent of the black test-takers would pass, the report shows.

The 155-page study by the National Conference of Bar Examiners, which is posted at www.nybarexam.org, was commissioned after bar groups, the deans of all 15 New York law schools and key lawmakers objected to a proposal by the Board of Law Examiners to gradually increase the passing score to 675 from 660. The first five-point increase was implemented for the July 2005 exam. Another five-point increase, from 665 to 670, was supposed to take effect for the July 2006 test, but was postponed. The final boost was slated to take effect next summer.

But Diane F. Bosse, chairwoman of the Board of Law Examiners, said the board is in no hurry to implement the increases, especially in light of the new report. She said it remains uncertain when or if additional changes will take place….

Proposals to increase the passing score emerged after a 2000 study by the Board of Law Examiners to determine if the passing score, which had not changed in 25 years, remained an appropriate benchmark. The study showed that only 13 states had lower standards than New York and called for an increase of as much as 33 points on a 1,000-point scale. Eventually, the board proposed a 15 point, phased-in increase. Even after the increase, 24 other states would have a passing grade equal to or greater than New York’s.

Critics, especially the law school deans, pounced on the proposal, arguing that there was little if any indication that an increase in the passing grade would boost the competency of the bar. Those complaints led to the study released Friday, which Ms. Bosse characterized as perhaps the most comprehensive bar exam performance analysis ever done.

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The report categorized the largest racial and ethic groups as: Caucasian/white; Asian/Pacific Islander; black/African American; Hispanic/Latino; Puerto Rican; and others. …

The study showed that:

o The passing rate on the July 2005 exam for the more than 4,800 white students—86.8 percent—would have been about 2 percent less if the passing score at the time had been 675 instead of 665. On the other hand, while the passing rate for blacks would have been 57.9 percent at 660 and 54 percent at 665, it would dip to 49.8 percent at 675.

o Increasing the passing score from 660 to 675 would cut out 3 percent of the whites, 4.7 percent of the Hispanics, 6 percent of the Asians, 8 percent of the blacks and 9.6 percent of the Puerto Ricans taking the test. However, only blacks would dip below a passing rate of 50 percent if the minimal acceptable score was 675. Even with the boost, nearly 85 percent of whites would still pass, as would 65.4 percent of Hispanics, 76.6 percent of Asians, and 71.2 percent of Puerto Ricans.

o Differences among racial and ethnic groups were not linked to especially high or low scores on any particular component of the test. Each group performed at about the same level on each component—suggesting that no single component favors or disfavors any defined group….

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Kenneth G. Standard, the former president of the New York State Bar Association who has long expressed concerns over the bar exam and its impact on minority candidates, said that if the exam is a reliable indicator of legal competence and blacks are failing it at a disparately high rate, it suggests a flaw in the educational system.

“That is the only explanation I can contemplate for such a dramatic difference,” said Mr. Standard, of Epstein Becker & Green. “It shows the need for us to improve the educational system, not simply because of the bar exam, but as an indication of other areas where blacks are likely to be held back by lack of an appropriate education.”

But Mr. Standard is far from convinced that the bar exam is a reliable measure of legal skill.

“My concern is that the bar exam may not accurately measure people’s capacity to practice law in a safe and effective way for their clients,” Mr. Standard said. “I don’t have a problem with people not being able to practice law if they are unqualified, and we certainly don’t want lawyers who cannot adequately represents their clients’ interests. But at the same time, we want to make sure we are measuring accurately the qualities a lawyer must have. If there is a disparate impact and the bar exam is a reasonable indicator, nobody can quarrel with that. We can then only quarrel with an educational system that does not allow blacks to compete.”

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