Two New Studies Reveal the California Bar Exam Cut Score’s Racially Disparate Impact, and State Bar of California Continues its own Study of the Bar Exam

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By Juan M. Villalvazo

In October 2020, two studies analyzing the various ways in which California’s minimum bar exam passing score (“cut score”) on the Bar exam impacts examinee outcomes. Both studies were conducted by the same authors, and were funded by the AccessLex Institute, the same nonprofit institution that funded the 2019 California Attorney Practice Analysis (CAPA) survey to all California licensed attorneys, which the State Bar of California is currently utilizing to inform various reform efforts related to the Bar exam.  [25:1 CRLR 149]

The first study, entitled Examining the California Cut Score: An Empirical Analysis of Minimum Competency, Public Protection, Disparate Impact, and National Standards, was released on October 15, 2020, and provides an empirical analysis that shows how higher cut scores create disparities within the attorney licensing system and affect the diversity of new licensees. The study’s first data set included 85,727 examinees who sat for 21 administrations of the California Bar exam from 2009 to 2018. Simulation analysis using actual examinee scores confirmed that selecting a lower cut score would have significantly narrowed the achievement gap between whites and racial and ethnic minorities, and would have increased the number of newly-admitted minority attorneys in California.

The study also found that a high cut score does not result in greater public protection when measured by disciplinary statistics. The study’s second data set used the American Bar Association (ABA) discipline data from 48 U.S. jurisdictions from 2013 to 2018 and the cut scores in each jurisdiction to examine the relationship between minimum cut scores and rates of attorney discipline. The study determined that no relationship exists between the selection of a cut score and the number of complaints, formal charges, or disciplinary actions taken against attorneys. Taken together, these findings indicate that maintaining a high cut score does not result in greater public protection, but does result in the exclusion of minorities from admission to the bar and the practice of law at rates disproportionately higher than whites.

The second study, entitled A Five-Year Retroactive Analysis of Cut Score Impact: California’s Proposed Supervised Provisional License Program, was released on October 23, 2020.  There, the authors analyzed a group of 39,737 examinees who sat for the California Bar exam over five years between 2014 and 2018. Using a simulation model based on actual exam results, the authors evaluated how the cut scores of 1440, 1390, 1350, 1330, and 1300, if used as qualifying scores for a provisional licensing program, would affect the number of previous examinees, by race and ethnicity. The study concluded that selecting a qualifying score lower than the current California cut score of 1390 would significantly increase both the overall number of eligible participants and the diversity of the group eligible to participate in the State Bar of California’s new provisional licensure program, which the Supreme Court of California approved on October 22, 2020.

The State Bar has been examining the propriety of its cut score on the Bar exam since 2017, when the Supreme Court of California ordered it to conduct a series of studies after the deans of 20 of the 21 law schools accredited by the American Bar Association in California petitioned the Court to lower the score following a dismal pass rate on the July 2016 exam. [23:1 CRLR 158–161] While the Court declined to lower the score that year, it did order further study of the exam. [23:2 CRLR 254–256] This prompted the State Bar Board of Trustees to establish the California Attorney Practice Analysis (CAPA) Working Group to analyze and determine the knowledge, skills, and abilities needed by entry-level attorneys in California to practice law ethically and competently, in 2018. [24:2 CRLR 275–276] The CAPA Working Group submitted its final report on May 11, 2020. The final report coincided with a national practice analysis by the National Conference of Bar Examiners regarding content and format of the Uniform Bar Exam (UBE).

Following the release of the CAPA report, State Bar Board of Trustees voted to establish a Blue Ribbon Commission on the Future of the Bar Exam, in partnership with the Supreme Court of California, at its May 14, 2020 meeting (Agenda Item 705). The Board adopted a charter for the Commission at its July 16, 2020 meeting, and voted to approve the composition of the Commission as follows: two former members of the CAPA Working Group; two members of the Committee of Bar Examiners; one member of the NCBE Testing Task Force; two members of the Council on Access and Fairness; two members of the California Lawyers Association (at least one whom shall be a lawyer who took the bar exam within the past 3 years); two law school deans or faculty members; two Judges (active or retired); one appointment from the California Department of Consumer Affairs; one member of the current State Bar Board of Trustees; one national expert on examination development or grading; and one expert on online testing software, security, and privacy evaluation.

According to the charter, the “Blue Ribbon Commission is charged with developing recommendations concerning whether and what changes to make to the California Bar Exam, and whether to adopt alternative or additional testing or tools to ensure minimum competence to practice law.”  As part of its work, the Commission will review the results of the California Attorney Practice Analysis and the recommendations from the CAPA Working Group; the National Conference of Bar Examiners practice analysis and its recommendations for the UBE content and format; and the results of additional recent studies on the California Bar exam conducted by the State Bar, including data examining the pass rates of applicants of color.

Applications for the Blue Ribbon Commission are currently open and will be accepted through November 30, 2020. The commission is expected to have its first meeting in January 2021, and a final report on the Commission’s findings and recommendations will be made no later than January 31, 2022.

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