West Chester, PA (October 15, 2020) -- AccessLex Institute has published groundbreaking research that finds the minimum passing score (known as the “cut score”) on the California Bar Exam, which is the second highest in the nation, excludes minorities from admission to the bar at a disproportionately high rate and does not result in greater public protection in the state. The study, titled, “Examining the California Cut Score: An Empirical Analysis of Minimum Competency, Public Protection, Disparate Impact, and National Standards,” was funded by a grant from AccessLex Institute to Monterey College of Law (“MCL”), located in Seaside, CA, and was undertaken because California and national policy makers previously have not had the benefit of detailed analysis of bar exam performance utilizing actual data to examine the effect of the bar exam cut score on the racial and ethnic composition of new attorneys joining the legal profession. The study also examined the commonly heard claim that a high bar exam cut score serves to protect the public from lawyers who do not have the minimum competency to practice law by using data on attorney discipline as a means of measuring competence.
The law school engaged a research team lead by Victor Quintanilla, Bicentennial Professor and co-Director of the Center for Law, Society & Culture at Indiana University, Maurer School of Law, and Dr. Sam Erman, Professor of Law at the University of Southern California, Gould School of Law. Professors Quintanilla and Erman’s work related to legal education and bar exam performance is well known, especially as the principal investigators of Mindsets in Legal Education (“MIP”), a project funded by AccessLex Institute. MIP developed and implemented The California Bar Exam Strategies and Stories Program to help test takers find productive ways to interpret the challenges, obstacles, and negative psychological experiences associated with preparing for the bar exam. MCL President and Dean Mitchel Winick and MCL Professor Christina Chong-Nakatsuchi worked with the research team as the lead writers for the written report.
Two large data sets were used. The first data set included de-identified scores of 85,727 examinees who sat for 21 administrations of the California Bar Exam from 2009-18 and the race and ethnicity of each examinee. The second data set included the American Bar Association (“ABA”) discipline data from up to 48 U.S. jurisdictions from 2013-18 and the bar exam cut scores in each jurisdiction.
Race and Ethnicity Findings
Using the first data set, the study analyzed whether the selection of a minimum cut score results in disparate bar exam pass rates when race and ethnicity is taken into consideration and whether these results altered the racial and ethnic composition of new attorneys joining the legal profession during the 11-year period studied.
The number of attorneys of color who would have passed the bar exam had lower cut scores been in effect during the 11 years studied was significant. At 1390, California’s recently reduced cut score, the number of examinees eventually passing the California Bar Exam would have increased by 3,760 examinees; of these, 1,675 would have been attorneys of color. At 1350, the median national cut score, the number of examinees eventually passing the exam would have increased by 8,734 ̶ 3,876 of which would have been attorneys of color. And at 1330, New York’s cut score, the number of examinees eventually passing the exam would have increased by 10,564 and California would have had an additional 4,665 attorneys of color.
Consideration of this data is important because despite the increase of minority examinees sitting for the California Bar Exam over these 11 years, the State Bar of California’s recently released 2019 Report Card on the Diversity of California’s Legal Profession reports that the state’s attorney population does not reflect the state’s diversity.
Public Protection Findings
The second data set was analyzed to determine the accuracy of the commonly repeated claim that a high bar exam cut score serves to protect the public from lawyers who do not have the minimum competency to practice law. To address the question, the study analyzed six years of disciplinary statistics from 48 jurisdictions. If there was a protective effect of higher cut scores, some relationship with disciplinary statistics would be expected to exist. The study determined that no relationship exists between the selection of a cut score and the number of complaints filed, formal charges, or disciplinary actions taken against attorneys in the jurisdictions studied. In fact, although not statistically significant, the data points slightly toward the opposite relationship ̶ states with higher cut scores have a slightly greater rate of complaints, charges, and actions.
The finding that no statistically significant relationship existed between the choice of cut score and disciplinary complaints raises significant doubt about whether public protection is a rational basis for maintaining a particular cut score, especially when high cut scores also are shown to have the disparate racial effects reported in the study. This is an important finding that should be valuable to policymakers when considering the possible implications of using high cut scores to restrict attorney licensure.
The purpose of the study was not to recommend which cut score is appropriate for California or other jurisdictions, nor to explain why passing rates are racially and ethnically disparate at different cut scores. The study was intended to provide policymakers with relevant and previously unavailable empirical data and analyses to assist in policy decisions that may be influenced by the relationship between cut scores, public protection, and disparate impact on the basis of race and ethnicity.
About AccessLex Institute
AccessLex Institute is a nonprofit organization committed to helping talented, purpose-driven students find their path from aspiring lawyer to fulfilled professional. In partnership with its nearly 200 Member law schools, improving access and positively influencing legal education have been at the heart of the Company’s mission since 1983. AccessLex Institute is headquartered in West Chester, PA, with a team of accredited financial education counselors based throughout the United States. Learn more at AccessLex.org.
AccessLex Resource Collection Link: http://arc.accesslex.org/grantee/56/
SSRN Research Paper Link: http://ssrn.com/abstract=3707812