Disparate Impact Study

Do bar exams deprive the public of a large and diverse group of qualified lawyers? Do they protect clients from bad attorneys?

To answer these questions, researchers at MILE studied the California Bar Exam.

The findings: the choice of a bar exam passing score (“cut score”) is also a choice about the legal profession’s racial and ethnic makeup, not a choice about its quality or ethicality.

Bar graph displaying racial disparate impact of setting the California Bar Exam's cutoff score at 1440, 1390, 1350, 1330, and 1300

Using a unique dataset of ten years of individual-level test-score data, the research team demonstrated that the California Bar Exam’s historical cut score of 1440 produced stark racial and ethnic disparities. Whereas 80.5% of White applicants eventually passed the bar exam during the period, just 53.1% of Black applicants did. Nearly half of that gap would be eliminated were California to reduce its cut score to 1300, as some states have done.

Using a second unique dataset of six years of professional misconduct data, the research team found no significant relationship between a state’s cut score and the frequency of complaints, charges, or disciplinary actions against its attorneys. If anything, a higher cut score meant more frequent problems, not less.

Scatter plot illustrating the lack of any significant positive relationship between lower cut scores and higher levels of complaints against attorneys

The selection of a cut score also impacts the representation of people of color among newly admitted attorneys and, ultimately, cascades to affect their representation in the legal profession. If California had selected a cut score of 1350 in 2009, 32.1% more Black lawyers would have passed the bar annually. By mid-2020, the total number of Black lawyers in California would have been 9.9% higher.

Line graph showing the percentage growth in the number of lawyers by race between 2009 and 2020 in California at various simulated cut scores

The California Supreme Court alluded to this emerging research in its recent decision to lower California’s cut score to 1390.

The combination of such structural reforms with such psychologically wise programs as Bar Exam Strategies and Stories may boost passage rates and reduce achievement gaps even further.

Read On

Mitchel Winick, Victor D. Quintanilla, et al., Examining the California Cut Score: An Empirical Analysis of Minimum Competency, Public Protection, Disparate Impact, and National Standards, AccessLex Institute Research Paper (forthcoming 2020)