The California Bar Exam is failing people of color. Reform is overdue.
Gaganpreet Kaur is a California ChangeLawyers Alum (2019 1L scholar & 2019 Summer Law Clerk), and law student at the University of San Francisco School of Law
California is the most diverse state in the country. It is often viewed as a bellwether for the country on issues like diversity, acceptance, and progress. Yet, aspiring attorneys in the state of California — especially people of color — face a roadblock that stops the legal profession from reflecting the diversity of the communities that it serves.
In order to become a lawyer, law school graduates must pass the State Bar Exam. In California, the Bar Exam is recognized as one of the most challenging in the country for multiple reasons, including its notoriously high passing score. The pass rate for the California Bar Exam has decreased dramatically over the past seven years, starting from 2013. Many law school graduates take the exam multiple times, with some students never achieving the passing score of 1440. Sadly, their success or failure on the test says nothing about their ability to successfully practice law. Many of the individuals failing in California would pass the state bar exams in Utah, Pennsylvania, and even New York. In the process of taking and retaking the test, graduates endure severe financial and emotional strain — and this is most apparent with law graduates of color. The test itself needs to be reexamined and reformed because it excludes people of color and first-generation law students from the legal profession for no valid reason.
A. The California Bar is not representative of the diversity of the state
The bar exam requires improvement to ensure a legal community that is big enough to meet the state’s needs and diverse enough to reflect all of the communities that need legal help. Lowering the exam’s passing score — not much, just to the national average — would help meet both of those goals.
About three-quarters (77%) of California’s attorneys are white. The state is home to the largest Latinx population in the United States (35% of the total population). and yet only six percent of California’s lawyers are Latinx.[1] That is one Latinx attorney for every 1004 of the state’s Latinx residents. The legal profession simply doesn’t reflect, represent, or speak for the people of color in the state, who collectively represent a majority of the population. This failure creates a significant disadvantage for individuals seeking adequate legal representation from attorneys who speak their language and understand their culture and legal needs.
California requires aspiring attorneys to score 1440, while the national average passing score is 1350. Those 90 points might not seem like much, but they make a big difference in determining who gets to become a lawyer in California. If the California bar cut off score had been equal to the national average cut off score, the July 2018 bar exam would have produced three times the number of African American lawyers and 24% more Latinx lawyers. [2]
If more law school graduates (including graduates of color) passed the bar exam, the legal field would be filled with diverse and representative attorneys. Former President of the State Bar Jeffrey Bleich recently discussed this issue in an op-ed, concluding, “[T]his disparity in passage rates leads to a disproportionately white legal community that doesn’t reflect the demographic composition of the state.” The California Bar Exam needs reform because the state is losing qualified graduates to other states, where more reasonable passing scores mean they have a better chance of passing the exam.
In 2017, several law school deans called on the State to reduce the exam’s passing score.[3] That year, the California Supreme Court declined this call to action, noting that the pass rate has fluctuated over time and recent drops appeared to be part of a “broader national pattern.” Yet, this disparity is larger and more significant in California, as compared to virtually any other state in the country. The number of people passing the bar has decreased, but the graduates bearing the brunt of this trend are disproportionately graduates of color. Test takers of color face the heartache of failing the bar exam in numbers far greater than white test takers. They are left with a financial and emotional burden that data and statistics do not capture.
B. The California Bar Exam creates a financial burden
On average, a graduating law student faces accumulated debt between $100,000 and $200,000 from tuition, books, and living expenses during law school.[4] This figure includes thousands of dollars of Bar prep material, classes and the cost of the test itself. They are then expected to begin repayment in as little as six months after graduation. Despite being already burdened with 6-figure debt, they often must take out additional loans to pay their living expenses while they study for the bar exam itself, ranging between $3,000 and $10,000. Many people reach the milestone of their law school graduation and face the California Bar Exam with a lot at stake. Depending on their circumstances, many recognize that they are more likely to fail the test than pass and that failure will cut off their access to a career with significant earning potential, creating a cycle of overwhelming debt and financial stress. Retaking the bar exam multiple times burdens test-taker with a financial impact far greater than data can depict, while radically diminishing their employment opportunities.
Daniela Conde, who passed the California State Bar exam on her second try, is a now a Staff Attorney for the California Labor Commissioner. The combination of law school and sitting for two separate administrations of the exam imposed a significant financial toll on her. According to Daniela, “Currently I cannot even begin to imagine buying a car or a house. The amount of loans from tuition, and then the test prep and test itself, I have not even seen the principal amount of my loans. I am still paying off the interest.” Struggling to pass the exam means that qualified aspiring attorneys find themselves working to make ends meet, instead of starting work that led to them the legal field in the first place.
The aftermath of failing the bar exam is not limited to the exam itself; the failed result does not stop the loan interest from accruing. Having to take the test multiple times hinders the ability to work, earn a living, and pay back student loans. Simply understanding the immediate aftermath of failing is only a small piece of the lifelong impact the failure will have on most of these candidates. Most will have to restructure their lives overnight and not know where their source of income will come from.
The financial burden is borne not only by the students but on their families and significant others. While studying for the bar exam, most candidates cannot work, as they are studying full-time. Financial support must come from loans, savings, family, or partners. The financial toll is felt by all members of the family because studying for the California Bar Exam delays financial stability. Lucina Rios, now a lawyer at California Rural Legal Assistance, explained that at one point, while holding both an undergraduate and law degree, she was homeless, on food stamps, and had two job offers revoked after she did not pass the bar exam:
“I struggled during bar study. During law school, I lived in student housing and had to move out in May of last year when I graduated. Which led me to basically being homeless while studying for the bar because with loans and rent it became too much. A classmate let me stay at her place until I took the bar exam in July. I had no income so I applied for CalFresh, the EBT card, and for medical. So, at least I had food and basic health insurance. After I took the exam, another friend agreed to let me stay at her place. I focused on applying for local jobs because I did not have a car. I even considered working at Target, something is better than nothing. I got an offer from a law firm and the district attorney’s office right before the Bar exam results came out. Both rescinded the offers when they learned that I did not pass the bar in July 2018 and that meant I had no definitive place to live all over again.”
After failing the bar exam, job offers disappear or come to a screeching halt. A dream opportunity or career goal vanishes as employers rescind offers, leaving little hope of financial stability. Students like Lucinda are left in a dilemma, burdened by six-figure debt, while holding advanced degrees that yield no income because of a test that they would have passed in most other states.
Aspiring lawyers of color face countless obstacles on their path to becoming lawyers. Unreasonably difficult pass requirements coupled with financial constrains that limit the number of attempts can cost students viable opportunities for fulfilling and financially rewarding legal careers.
C. The California Bar Exam causes an emotional toll
1. Multiple attempts or the inability to pass the bar puts great burden on one’s mental health
The emotional stress of failing a test of this magnitude breaks the will of an individual. Failure fills candidates with doubt that they are not qualified to be a lawyer, exacerbating the notion they are an imposter or do not belong in the legal field.[5] With the limited representation of people of color and lack of confidence of these communities to confide with attorneys who are not representative of their communities and struggles all leads to a cycle of minimal growth for people of color. Theoretically, the less a student identifies with the legal community translates to the less confident they feel surpassing obstacles, creating sufficient room for imposter syndrome. If a person of color fails, they are more likely to associate their failure as a symbol of failing on behalf of their community.
Hugo Salazar who passed the Bar Exam the fourth time and is now an attorney at Al Otro Lado. He explains that the internalization of “being another statistic” by stating that “I went to school to do what I am doing now. Not passing the bar after three times held me back. The people and contacts I made during the course of my legal education, they gave up on me. People that don’t pass on the first try, push and try again. After 3 tries, I was another Latino. Another Latino man who wouldn’t be able to pass. People would say you are so smart, and them questioning me by saying, ‘you really didn’t pass after three tries?’ that question gets old. I stopped getting phone calls checking in, I didn’t have a social support system to subsidize the support I needed.” Statistically people of color are less likely to trust/approach lawyers for help, but having a lawyer that resembles and speaks the same language as them, will more than likely allow them to seek a lawyer from their community.
Failing the test and not being able to help the community devastates the morale of both the individual candidate and the community that they are hoping to support.
When a student of color fails they are lumped into a statistic of those failed. This failure internally because they were not able to pass and move forward with their goals. After numerous tries the internalization of failure prevails when the support dwindles and you no longer have people cheering for you.
2. Multiple attempts or the inability to pass the bar affects a person’s relationships and personal life
The bar exam is taken by one individual. But, in reality, there are multiple people pitching in and supporting the one individual. Not passing a test that one has worked excruciatingly hard for day and night impacts the people in close proximity as well because they all have to deal with the aftermath. For these two individuals mentioned above, their partners had to make major adjustments to their lives. Hugo mentioned that “For me, yes I knew I had to pass the test. After the third try it was hard because with each try, that meant my partner, my wife who was a doctoral candidate at the time, would have to stop writing articles. She could not do research teaching if I had to take off another minimum of 4 weeks to study. She would have to give up her research and that makes you pause because your partner is giving up a part of their life in order for you to continue your dream. That forced pause, affects your whole life.”
One student had to minimize her curriculars to maintain the family in order for the test taker to study. Another partner had to deal with the test taker’s stress and possibility of not passing because that would dictate their future steps as a couple. Jasjit Singh, Program Officer at California ChangeLawyers explains that “I just did not know how to function. The stress of the test was too much, and even holding a conversation was a task. I was afraid to even take a break. I would respond just to respond. My wife would say I need to do more than one-word responses for my own sake, but the possibility of not passing was looming over both of our heads. It is hard to hear any type of positive reinforcement when the chances of me passing is so low. It is more likely that I would fail when the pass rate is in the 30th percentile. If the test had a 50% pass rate, it would be an assurance that there is at least a 50/50 chance I could pass.”
D. The California Bar Exam contains implicit bias
1. Bias in testing language
The legal knowledge on a model answer and a student of color who graduated from law school is similar. The rules and laws emphasized within the written portion of the Bar Exam are similar to the legal studies of any JD graduate. An individual could assume that everyone taking the Bar would have the same chance of passing because of the largely identical level of legal coursework. However, the profile of the test taker is different because when looking at the test answer, the analysis of a student of color will fall short far more times than a white test taker. Daniela describes the logistics of the test by saying “This test contains language and formatting that is different to non-native English speakers. If you’re an immigrant or a person of color, you already are at a disadvantage. After I failed the first try I scrounged money and got a tutor. We would analyze the language students who passed the bar used on their essays versus my writing. I would never use that type of diction because it was not my regular English and not in my dictionary. I cannot write like that because I was not exposed to it.” The way the test rewards answers is not the norm for the majority of students of color.
Looking at the model answer makes the individual feel as if they will never amount to the occasion because it is not engrained to write or speak as someone they are not. The test invokes a feeling of bias and the impact on an individual’s mental health is insurmountable. It is impossible for a person of color to not feel the test is biased when white test takers with the same level of legal understanding have a higher passing rate than them. From the time of creation, the test itself has not changed and it makes a student of color feel inadequate, an imposter.
Even after graduating law school, students of color feel as if they do not actually belong in the legal field and that is due to lack of diversity and representation. For the current demographics of California, the makeup of California lawyers does not represent the diversity of the state’s population. The test needs to be representative and inclusive of all test takers to enhance the diversity of the legal field rather than limit.
E. The California Bar Exam precludes people of color from passing the test with the same capability as their white counterparts
Students of color are suffering from the high bar cut off score and the test itself. The test is catered towards a certain pedigree, one which people of color on average are not accustomed to. Kim Crawford who was a Legal Fellow at CA Labor and Workforce Development Agency depicts the frustration of the test from a student of color’s perspective. “Think about it. All the students in law school have an undergraduate degree, take similar law school classes. The material is similar, so why are non-people of color test takes passing over people of color test takers. The test has language that is catered towards people who grew up with English and privilege.” Language and diction expected on the test is not equivalent to real life speaking and writing skills used on a daily basis.
The students taking the test have a bachelor’s degree, and have spent three or more years obtaining a juris doctorate. When sitting for the bar exam, they are all equipped with the same legal education and knowledge taught in law schools. People of color are not performing at an equivalent level. Research shows that students of color perform worse than white test takers because the test is geared to reward the “typical” lawyer the test believes would be a capable lawyer.
In order to pass the test, it is not enough just to know the law and apply it. The Bar exam is designed to test for minimum competence for entry-level attorneys.[6] However, the more money you have, the more prep courses one can take, entails a higher possibility of performing better. Daniela Conde showcases how the power of money and extra resources provide additional and necessary support to pass the test, “Second time around I had to borrow money, I contribute a lot of my success to Adaptibar. I didn’t know of that resource the first time around. My parents also had to help pay for a private tutor who was a former bar grader. Together we would analyze the language and look at a passing answer and then compare it to my answer.”
People of color who did not grow up with English as their first language or with monetary privileges are already at a disadvantage. The test is setting up less affluent students up for a higher chance of failure, when it should be measuring competence rather than inside knowledge from prep courses.
F. A decrease in the California Bar Exam score cut-off will not prompt a lower standard amongst California lawyers
California has the second highest bar exam cut off score, with a passing score of 144 and the national average cut off score is 135. But the cut off scores show different states deem different scores necessary to meet the minimum requirement, and California has one of the highest cut off scores. California is only second to Delaware, which has test takers only in hundreds. For example, the state of New York is most comparable to California as another diverse state and a similar bar examination process. New York has a cut off score of 133 which is lower than the national average. There is no research to suggest that New York or the other 48 states do not have adequate lawyers. As Lucina Rios points out, “California is not the first established state and other states have lowered their cut-off score. The states that have lowered their score cut-off have decent/great lawyers too.” There is simply no evidence to suggest that a higher cut off score contributes to a higher standard of a lawyer.
A lower cut-off score would not lower the standard of lawyers, but would rather provide additional attorneys for a state that struggles to provide adequate legal representation to vastly underserved communities. In California, there are 43 lawyers per 10,000 residents as of 2018[7], which is hardly an adequate number given the legal needs of the population. To understand the impact that a lower the score would have , it’s best to look at the data itself. If the cut score had been aligned with the national median for the July 2016 exam, California would have had: 118 more black lawyers out of 459 black test-takers, 284 more Latinx lawyers out of 1,071 Latinx test-takers, 390 more Asian lawyers out of 1,530 Asian test-takers, and 855 more white lawyers out of 3,900 white test-takers. These are qualified individuals who have the capability to potentially help underserved communities who lack legal help, but due to the inequities of the exam, its cut score, and the cost associated with preparation- they are unable to provide necessary representation for the community.
Every year the number of individuals passing the California Bar exam is decreasing, and those same thousands of individuals would pass the Bar exam had the cut off score been lower or the test be reformed to be reflective of the state. The California Bar is failing by denying qualified individuals the right to be a practicing attorney in California.
Editorial Assistance provided by:
Jasjit Singh, Thomas Jefferson School of Law alum, and Program Officer at California ChangeLawyers
[1] Above the Law
[2] Above the Law
[3] SacBee
https://www.sacbee.com/latest-news/article223879635.html
[4] US News
https://www.usnews.com/best-graduate-schools/top-law-schools/grad-debt-rankings
[5] Above the Law
https://abovethelaw.com/career-files/the-imposter-syndrome-prescription/
[6] Bus. & Prof. Code § 6046.8.
[7] United States Bureau of Economic Analysis
