The Legal Beat
No Dummies, It’s Not ‘Racist’ To Say Lowering The California Bar Exam Cut Score Will Improve Diversity
Posted on Thursday July 30, 2020
California has permanently lowered its cut score in a move that legal educators have pushed for years. This prompted the L.A. Times to write a piece focusing on the hope that this move could improve the diversity of the legal profession.
As you might expect, this kicked up a ruckus on social media and it’s an almost constant stream of increasingly dumb commentary.
Most of these messages came from white people with words like “Patriot” in their bios who are always among the swiftest to point out why inclusion is the real racism. And then, right on schedule, the libertarians showed up to make a glib remark founded on an irresponsible mischaracterization:
Lower baskets… hahahaha.
But while most of the commentary comes from disingenuous conservatives, there were, tragically, a few comments of dismay from minority observers (if the Twitter profiles can be believed) adopting the frame that lowering the California cut score amounted to saying “Black and Brown people can’t pass the real test” or “this is saying Black people aren’t as intelligent as white people.” To assure these folks, don’t listen to the narrative coming from the hacks; this policy isn’t racist or condescending.
First off, these “lower” standards are still higher than almost every state in the country. California is adopting a 1390 cut score. That would still make it the 7th hardest exam in the country. New York, the nation’s legal profession capital, has a 1330 cut score. Even if the bar exam was indicative of quality lawyering — which the evidence doesn’t back up — California would still have attorneys who passed a highly demanding test.
Second, lowering the cut score will increase diversity because it increases overall numbers… because that’s how math works. Assuming the bar exam results of minority candidates are normally distributed, lowering the cut score will add a substantial number of attorneys from diverse backgrounds. It will also add a bunch of white people, but the policy doesn’t have to change the overall racial balance of the profession to be worthwhile. For a profession that’s been a white enclave for so many decades, merely adding people — even if it never moves the percentages — would be a good move. It’s enough that there will be more Black and Lantinx attorneys out there. Just adding numbers to the profession puts more people in a position to get high-impact legal experience (which matters more than the bar), serve the underserved on the wrong end of California’s massive access-to-justice gap, and to become the next generation of mentors.
There’s not even any need to claim that racial performance is different at all to justify the policy.
That said, there is a claim that there is a disparity in performance being made by some advocates of cutting the score, and while it’s not even necessary to accept that premise to support the move, we’ll go ahead and dispel the idea that this might be racist too. There are a lot of arguments for why statistically significant differences might appear on bar exam results mostly stemming from the messed up gap in how educational resources are distributed at the K-12 level compounding to produce marginally lower scores at the post-graduate level. But with the California bar exam’s old 1440 score, the problem was even simpler to diagnose.
At 1440, more than 100 points over the New York passing score, the California bar exam wasn’t looking for competency, it was looking for the secret password. Law schools talk about “thinking like a lawyer” but the difference between a passing grade everywhere else in the country and a passing grade on the old California exam was demonstrating a mind so steeped in the process of thinking like a lawyer that it transcended mere study. This was a score designed to reward third-generation attorneys who grew up thinking like lawyers ever since their parents made them present an oral argument for going to Disneyland. It was constructed in a way that reinforced existing privileges that, for all the reasons outlined above, were concentrated among white people.
There is no looming crisis of incompetent California attorneys. The expansion of diversity by pure headcount is more than enough to justify the change. And to the extent minority students are getting lower scores, it’s not because they aren’t capable but because the old cut score was designed for exclusion.
Now please stop populating my “bar exam” feed with ill-informed complaints about the California cut score when there are real issues with COVID outbreaks that I need to follow.
Joe 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.