NCBE’s White Paper on Bar Admissions During the COVID-19 Pandemic

A few days ago, the National Conference of Bar Examiners released a white paper entitled Bar Admissions During the COVID-19 Pandemic: Evaluating Options for the Class of 2020.

Predictably, NCBE argues strongly against diploma privilege and the expansion of supervised practice orders, and for the bar exam as the only measure of evaluating lawyer competence and protecting the public from malpractice. Further, the NCBE goes to great lengths to insult law schools, law faculty, and lawyers. NCBE states that “diploma privilege would create inconsistency in the qualifications of new lawyers (dependent on which school they attended) and introduce subjectivity into the standards for minimal competence to serve the public, with each ABA-accredited school deciding whether an individual student is qualified. This creates an extraordinary conflation of roles for law schools—to be both educator and licensing authority.” The white paper further goes on to say, “Academic assessments used in law school classes are prepared and graded by individual professors and are naturally of varying degrees of quality and rigor from one professor to the next and from one law school to the next. In contrast, the bar exam meets the professional standards for testing at the level of quality and reliability needed for a licensure exam and ensures consistent standards are applied to all who earn the privilege of practicing law,” Additionally, the white paper classifies diploma privilege as extreme, and states that it will diminish public protection.

NCBE doubles down on its disdain for law schools later in the paper when it states, “some of the proponents of diploma privilege argue not only that it is necessary because of uncertainty about whether the bar exam can be administered, but they also assert that the bar exam does not measure competence to begin practice. In fact, the exam is designed for exactly that purpose (a claim that can’t be made regarding law school curricula) and has been used for decades to make licensing decisions.”

But what is the point of law school, if not to teach students to become passionate, ethical advocates? Further, the concept of subjectivity is not foreign to the bar exam. There is subjectivity in every part of the bar exam (yes, even the MBE). There is inconsistency among graders in the same jurisdiction, and across states that have adopted the UBE. Additionally, not every applicant achieves the same exact score on the bar exam, so there is always a variation, even if you believe that a UBE score is a valuable indication of being qualified to practice law.

Even more remarkable is NCBE’s attempt at making the bar exam the savior of first-generation law students by saying that supervised practice orders would leave them behind. “Additionally, supervised practice can create conditions for unequal opportunity, as students must find licensed attorneys to supervise them in order to qualify. Well-connected students might not struggle to find a licensed supervising attorney, but first-generation law students from socioeconomically disadvantaged families might find it difficult to do so.” The bar exam itself is racist and creates conditions for unequal opportunity.* The white paper admits as much when it states, “regarding disproportionate impact, it is true that differences in average performance on the bar exam tend to be observed across racial/ethnic groups. However, the same or greater differences in average performance across racial/ethnic groups also tend to be observed in performance in law school (law school GPAs), on the LSAT, and in undergraduate GPAs. Similarly, gender dif-ferences in average performance observed on the bar exam are also observed in law school and on the LSAT.”

Law schools can work with students and the legal community to find supervised practice placements, and can help to make sure no student is left behind. Centering the bar exam as the method for eliminating disparity in the legal profession is disingenuous and appalling.

At the end of the white paper, NCBE doubles down on its argument that law students today are “less qualified” than they used to be because law schools have lowered admissions standards (meaning LSAT and UGPAs have declined some). This argument ignores the fact that those traditional academic indicators share many of the same defects as the bar exam itself.

The NCBE goes even further by pitting law schools in direct opposition to courts and clients. “While law schools are not obliged to hold their entering classes to the exact same standards year after year, there should be no compromise in ensuring that students’ competence to enter practice meets the jurisdictions’ determination of minimum competence. The bar exam is the most important reliable, independent, objective assessment of graduating student competence. Law schools are student-centric and understandably have an interest in seeing all their graduates authorized to practice law. A court’s interest, in contrast, is to ensure that the public can rely on the fact that the individuals who receive a license are, in fact, proficient to represent the public.”

While a strong defense of the bar exam is to be expected from the NCBE, I hope that this white paper is a wake-up call to lawyers, law students, and law schools that defend the bar exam and the NCBE, as their disdain for us all comes through quite clearly. It’s really a wonder that any of us have ever been allowed to practice law given how unqualified and student-centered we are.

*Here are a few recent studies that include racial (and gender) breakdowns of bar passage rates: https://nysba.org/app/uploads/2020/03/Report-of-the-Task-Force-on-the-New-York-Bar-Examination.pdf, https://www.nybarexam.org/UBEReport.html, http://www.nycourts.gov/ip/bar-exam/appendices.shtml