MSBA hears progress report on rethinking state bar exam

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The bar exam was originally devised to keep “undesirable” men out of the profession. Some say it is still a tool of exclusion and not just a way to protect the public from untrained lawyers.

A study of whether and how lawyers should be tested and the exam’s perhaps unintended consequences is underway, and public contributions are welcome. Its progress was aired at the Minnesota State Bar Association convention on June 23 in a session titled “Elimination of Bias: Rethinking the Bar Exam.”

The Board of Law Examiners (BLE) embarked on the study about the bar exam in June 2021. Three working groups were formed in January 2022 and continued through May 2022. The three groups have each submitted a report with recommendations. The process continues, and a report to the Supreme Court should be submitted in July 2023.

The three working groups were charged with reviewing three models of determining competency: examination at the conclusion of law school; evaluation through clinical or experiential programs during law school: and evaluation through supervised practice following law school. More information about the working groups and the reports is available at the BLE website. The Board of Law Examiners has submitted the reports to the Bar Admissions Advisory Council.

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Working Group 1 supports multiple pathways to licensure in Minnesota, and based on what is known of it thus far, recommends the new NextGen Bar Exam as one pathway, though the exam presents concerns, addressed in the report. “We do not yet know what the NextGen exam will really look like,” its report states.

However, the group notes, the National Conference of Bar Examiners plans to phase out the current Uniform Bar Examination and adopt and implement the NextGen exam in 2026.

Working Group 2 recommends developing a pathway that would allow law students to be licensed upon graduation. The recommendation includes the creation of minimum competence standards to certify clinical and experiential pathways at each of the Minnesota law schools.

Working Group 3 recommends the development of the Minnesota Supervised Practice Pathway for licensing. Under this program, graduates would complete lawyering tasks under the supervision of a licensed attorney for a specified number of hours of practice and submit documentation of those tasks to the board to demonstrate minimum competence through a portfolio of work.

Measuring the right things

Some questions about the present bar exam method were aired at the MSBA panel members of the Board of Law Examiners’ study group.

University of Minnesota Professor Carol Chomsky said that the bar exam “doesn’t match the way lawyers work.” It is focused on the knowledge of the law but not on the skills to practice law, she said. The bar exam requires memorization, on which lawyers do not rely, and does not test for experiential knowledge. It is also a test of economic resources since some students study full time and others can’t, she said. “If you’re not measuring the right things, the outcome of the test is problematic,” said Chomsky.

Events in 2020 increased awareness of equity issues in the bar, said Emily Eschweiler, director of the Board of Law Examiners, although the board has been talking about the bar exam since 2018. She appealed to lawyers to be involved in the process over the next year and said that the information about meetings is available on the board’s website. Written comments also may be submitted. (https://www.ble.mn.gov/bar-exam/competency-study-2021-to-2023/) “We really want involvement from the bar,” she said.

Concerns about the bar exam during the pandemic and after the murder of George Floyd were aired to the Supreme Court before the board’s study got underway.

A petition filed on June 22, 2020, requesting a temporary waiver of Rule 4 of the Minnesota Rules for Admission to the Bar asserted that the then-current public health emergency, the civil unrest in Minnesota beginning in late May 2020, and the inadequacy of the health measures implemented by the Board of Law Examiners for the July and September bar examinations in 2020 presented exceptional circumstances that warranted a waiver of the exam requirement.

It was denied by the Supreme Court, which said that “proceeding forward with the 2020 bar examination is the best solution in an imperfect setting.”

In an email to Minnesota Lawyer, MSBA President Paul Peterson wrote: “The MSBA has been a participant in the study and discussion surrounding the development of the best paths to attorney licensing going forward, which includes a review of the current bar exam/admission structure.  The Board of Law Examiners, at the request of the Supreme Court, has been leading the effort to conduct this review, engaging members of the bar and others in working groups to study the various alternatives. Currently, the MSBA funded from its reserves the hiring of a skilled consultant to assist the BLE with its study. The consultant will moderate listening sessions offered by the BLE to gain feedback on recommendations from the study’s working groups. The MSBA has also been ensuring that affinity bars in Minnesota are aware of opportunities to provide feedback at each stage of the study.  With the broad range of experiences and backgrounds of the MSBA members involved in this effort, including members that serve key leaderhip positions in the MSBA, the hope is that the MSBA can assist the BLE in this important work.”

Barring entry

In 2021, the Minnesota Law Review published “Barring Entry to the Legal Profession: How the Law Condones Willful Blindness to the Bar Exam’s Racially Disparate Impacts” by Eura Chang, a 2022 graduate of the U of M Law School, who was part of the panel at the convention.

The pandemic and the murder of George Floyd highlighted equity issues surrounding the bar exam, said Chang. She also told the attendees that there are equity issues with the bar exam as constituted because a disproportionally small number of students of color, especially Black students, pass. Statistics show a higher minimum passing grade, known as a cut score, results in fewer students of color passing, she said.

The financial impact of bar preparation and time off work to study also has a disparate impact, Chang said. “We shouldn’t weed people out because they can’t take 10 weeks off of work,” she said.

In the law review Chang concludes, “If courts and bar associations are truly committed to diversity and inclusion, they must confront and dismantle the bars they have constructed and continue to maintain against a meaningfully inclusive profession. Rethinking the profession’s reliance on the bar exam is a great place to start.”

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