NCBE Opts For Bold 'Minorities Aren't Cut Out To Be Lawyers' Take

Presumably, this sounded better in their heads.

Nothing about this recent article from three NCBE staffers on testing bias had to be controversial.

The meat of the article focuses on techniques and control procedures for designing a test that does not, in and of itself, introduce additional bias. Don’t ask questions about proper attire for attending a regatta in Maine… we get it. The whole thing could have amounted to a dry recitation of psychometric techniques and never raised an eyebrow.

But the folks at the NCBE just couldn’t help themselves. Opening up a dog-eared copy of Mismatch that must be kicking around in the home office, the authors bolted on a bunch of self-serving dicta to clarify that, in the NCBE’s mind, if minority lawyers are failing their exam in disproportionate numbers, it’s not the test’s fault — it’s that minorities just aren’t qualified to be lawyers in the first place.

Never miss an opportunity to double down on a bad idea!

The National Council on Measurement in Education (NCME) advocated this view when it noted that “[d]ifferences in socioeconomic status and quality of education exist across racial/ethnic groups in this country. Criticizing test results for reflecting these inequities is like blaming a thermometer for global warming.”

Who’s the more foolish, the NCME who made that bone-headed remark or the NCBE for affirmatively choosing to quote it? It feels like the latter because the repeater always has the opportunity to stop and reconsider. At least that’s the way Obi-Wan would see it.

Even if blaming standardized tests generally was akin to “blaming a thermometer for global warming,”[1] it’s a bankrupt analogy for the bar exam. The bar exam is only loosely a measuring tool, its primary purpose is to cut off upward advancement for law school graduates. The more apt comparison would be “like blaming coal-burning power plants for global warming” — a direct contributor to the problem, albeit one that pales in comparison to, say, the internal combustion engine.

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This path to racist apologia is well-worn. Instead of coming right out and bad-mouthing minority students, spend time bemoaning years of structural racism in America’s education system and using that as a pivot to encourage readers to blame Mrs. Herlihy’s kindergarten class to absolve higher education of any responsibility for confronting racial inequities. It’s a stance that’s… transparently less woke than they intend it to sound.

Someone at the NCBE felt self-satisfied enough about this to highlight it on social media, which is astounding because at the very best, the article boils down to “racism exists in the world, and forcing minority law graduates into a cycle of debt they can never pay off is a small price to pay for having an exam that confirms this.”

This isn’t hyperbole! The last sentence of the article is “However, eliminating standardized tests as a way to eliminate the score differences runs the risk of lulling us into complacency and a false sense of social accomplishment when in fact much remains for us to achieve.” No one needs the test to come to that conclusion! An exam that, through its design, could provide insights like “this group of students had issues with this kind of question” which could then be used to provide prescriptive guidance on addressing this might be worthwhile. The bar exam doesn’t. It says, “looks like that problem still exists… sucks to be you.” That’s the definition of complacency.

If the talk about structural racism were anything but lip service, the authors might consider that the whole point of the word “structural” in there is the recognition that there is not a single source of racist outcomes perpetrated by institutions that see their own roles as relatively minor creating a continually compounding nightmare. It’s such phony posturing. Exxon puts out more genuine Earth Day messages.[2]

The bar exam exists in its modern form as part of a licensing regime designed to close off minority access to the profession. How do we know this? Because when the ABA charted out the current licensing model it said one of the purposes was to keep out Black people, Jews, and immigrants. Not to harp on the “structural” point, but another feature of structural discrimination is a commitment to closing off generational opportunities by preventing graduates from advancing in the profession and passing on those opportunities to their kids. But, you know, blame anyone for this but the literal gatekeeping exam.

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Lawyers need to meet minimum levels of competency. Everyone agrees. But putting aside that the bar exam doesn’t do this as a scaled test and one with varying state-by-state floors (e.g., a fully competent lawyer in New York would fail in Delaware because… reasons), why rely on this test instead of guaranteeing that accredited law schools graduate students who meet minimum competency standards? If law school is a prerequisite to the exam anyway — as it is in most states — what’s the value of hinging practice on a wholly independent one-shot exam after graduates have endured an expensive, iterative evaluation process at an accredited law school? Other than feeding diploma mills, of course.

And that’s why the whole frame of defending the bar exam misses the forest for the trees. It’s not that question 23 of the Multistate is racist — the only category of claim the article endeavors to substantively refute — it’s that the whole idea of a one-time subject-matter licensing exam as a barrier to practice is another brick in the systemic racism wall.[3] Nothing about this article addresses that, rendering it mostly a non-sequitur to the bar exam debate it postures itself as resolving.

It’s as though the NCBE doesn’t grasp the basic contours of the discussion. I blame Mrs. Herlihy.

The Testing Column: Ensuring Fairness in Assessment [The Bar Examiner]


[1] And it’s not. Standardized tests at all levels do a lot more than just measure student progress. Policymakers use scores to funnel students into tracked learning, allocate school resources, and even put whole schools under performance review.
[2] This is what a professional, “don’t blame us” operation looks like.
[3] We’re going to be talking about this “one-time” aspect more in the future, but for now, here’s an excellent recent article touching on how bizarre it is.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.