This piece is a commentary, part of The Appeal’s collection of opinion and analysis.
Bar examiners are gatekeepers charged with protecting the public from bad lawyers. But amid the COVID-19 pandemic and the accompanying economic crisis, prioritizing this gatekeeping function means putting aspiring lawyers at risk and making it harder for nonwhite and low-income people to enter the profession.
In mid-March, bar examiners throughout the country were asked to present recommendations to their state supreme courts on how to safely and reasonably administer the test in 2020. Some states, like Oregon and Utah, heeded the concerns of law school graduates, law school deans, practitioners and medical professionals. Those states decided that diploma privilege—allowing law students to automatically pass the bar if they fulfill certain grade and course requirements to graduate—is the only way to mitigate health risks without deepening social and technological inequities that would be further perpetuated by an online exam. Other states ignored these concerns and chose to preserve the status quo. Texas, for example, doubled down on the exam requirement, scheduling an in-person exam in September and an online exam in October.
Decisions like this raise the question: who or what are boards of law examiners really trying to protect?
Despite a 441 percent increase in COVID-19 hospitalizations since Memorial Day, until last Friday, Texas was among the 19 states still opting for an in-person exam in July. Unsurprisingly, when the Texas Board of Law Examiners invited the public to speak at a Zoom meeting ostensibly designed to help the board develop alternatives to the July exam, over 1,700 people joined.
Examinees in attendance vividly described their concerns. Some disclosed their struggles with COVID-19 or shared they had lost family members during the pandemic. Parents spoke of caring for young children while simultaneously attempting to study for the bar exam. Black students noted that, because COVID-19 coincided with a national reckoning on race, they had been under intense personal stress.
Many expressed concerns about being unable to pay rent, health insurance, car loans and other necessary expenses if they could not start their jobs soon. International students said they were struggling to obtain visas to remain in the country because the start-dates for their jobs were postponed.
Yet, as the layers of harm that would be done by administering an in-person and online bar exam during COVID-19 became clear, the board was unmoved. In fact, board members appeared distracted and disinterested, often texting, talking, and closing their eyes in view of the public attendees.
The chairman of the board downplayed the health risks and potentially devastating economic threats as happenstance. To him, taking an exam during a global health crisis is akin to a random occurrence of bad luck that affects a handful of examinees each year. To him, the inconvenience to examinees who fear for their lives and their livelihood is no worse than the inconvenience a litigator experiences when a big trial is pushed back. In response to the heartbreaking stories from examinees who feared economic ruin, other board members suggested that perhaps they just borrow money from law schools, family and friends, or explore loan abatement programs.
Dean of the South Texas College of Law Michael Barry concluded that no bar exam administered in 2020, whether online or in-person, would accurately measure minimum legal competency. Instead, a 2020 bar exam would undeniably disadvantage examinees who are disproportionately impacted by COVID-19. But, just as the board largely ignored the public commentary, the board ignored the suggestion that any exam this year would simply measure privilege.
Texas law school deans are not the first to reject the bar exam as a proxy for legal competence. Legal scholars have long argued that the bar exam does not protect the public from incompetent lawyers and, instead, primarily serves to maintain a largely white profession. As it has in other spheres of life, COVID-19 has simply amplified the exam’s segregationist history and obvious inequities.
A 2013 law review article explains that, initially, becoming a lawyer was an informal process based on apprenticeships, diploma privilege, or a simple oral exam. But, by the mid-1800s, the American Bar Association began expressing concerns over the “quality” of immigrant and “mixed-race” applicants. When the ABA inadvertently admitted three Black lawyers in 1920, it asked its members to consider expelling the Black attorneys because of the importance of “keeping pure the Anglo-Saxon race.”
At one point during the Zoom meeting, Dean of the University of Houston Law Center Leonard Baynes referenced Sweatt v. Painter, a 1950 Supreme Court case that overturned the University of Texas School of Law’s refusal to admit a Black student. Dean Baynes encouraged the board of examiners to acknowledge the close proximity of the Sweatt decision to the end of diploma privilege in Texas in 1937. While there is no explicit evidence that Texas’s decision to move away from immediate licensure is connected to Sweatt, it is a logical assumption in light of the bar exam’s racial and anti-immigrant history.
In addition to the racist origins of bar examinations, little evidence supports the view that the exam actually protects the public by ensuring lawyers have a minimum level of competency. Many test subjects are outdated, exist only in a handful of jurisdictions, and are worthless to students who practice in areas that are not tested on the bar exam. Rather than test for competency, the bar exam instead tests law school graduates’ memorization and regurgitation abilities after three-months of non-stop studying.
Even in a non-COVID year, studying for the bar privileges wealthy law graduates or graduates who work for large law firms or organizations that pay for pricey private bar prep courses. Only about three-quarters of law graduates in Texas have a job within 10 months of graduation, and far fewer, particularly graduates of historically Black law schools, will work at law firms that pay their living expenses while they study for the bar. Students who can afford bar prep courses, which cost upwards of $4,000, enjoy about a 90 percent bar passage rate if they complete the average amount of course work. Although examinees can take out bar study loans, if they are lucky enough to have a cosigner, adding high-interest rate loans to law school debt that averages $129,000 is an inexcusable choice forced upon economically vulnerable students already at risk of failing.
The Texas Board of Law Examiners’ staunch determination to force law graduates to take the bar exam suggests that board members are more concerned with protecting the status quo than protecting the general public. Black students, low-income students, and immunocompromised students will bear the brunt of a state’s decision to proceed with a 2020 bar exam. The same students who, due to overlapping structural inequities, are most susceptible to the dangers of COVID-19 are also being asked in jurisdictions like Mississippi to sign liability waivers for virus contraction and are most at risk of failing the bar exam due to lack of access to money for basic necessities, access to technology and study spaces, and access to child care.
As boards of law examiners throughout the country justify their recommendations to move forward with a 2020 bar exam, the dangers of administering it far outweigh any protective function. Any in-person bar exam option increases the risk of spreading the virus, particularly in states like Texas that are currently in crisis. Forcing students to process illness, death, financial and job insecurity, and racial and political violence while they study for an in-person or online exam endangers the mental and emotional well-being of students who are entering a profession that already boasts some of the highest rates of depression and suicide.
Furthermore, requiring a bar exam in 2020 will only perpetuate the egregious diversity problems within the profession by funneling in another generation of culturally incompetent lawyers. Just like COVID-19 infection rates, bar passage rates are skewed along racial lines. The consequence is a profession in which Black lawyers only make up 5 percent. In Texas, there is no woman of color appointed to the Texas Board of Law Examiners and there is no Black judge sitting on the Supreme Court of Texas. Oregon, a state whose supreme court has voted to forgo the 2020 bar exam in lieu of diploma privilege, has two sitting judges of color, both women.
State bar examiners and state supreme courts can no longer justify policies and procedures that disadvantage diverse and low-income test-takers. Creating a system of equal barriers to licensure requires anti-racism work and a complete re-imagination of the assessment process. Unfortunately, the Texas Board of Law Examiners and boards in other jurisdictions seem willing to force examinees to choose a license over their life.
Lauren Hutton-Work and Rae Guyse are 2020 graduates of the University of Texas School of Law. This commentary was reviewed by University of Texas School of Law Distinguished Professor Mechele Dickerson.