Thursday, July 16, 2020

It's Time to Replace the California Bar Exam

This op-ed originally appeared in the July 16, 2020 edition of The Recorder. Read the entire published op-ed here.

By Professor Susan Smith Bakhshian

A fair bar exam cannot be administered today. The State Bar and the California Supreme Court have spent months unsuccessfully searching for a way to offer the bar exam. This must stop. When all of the options are carefully evaluated and no workable solutions exist, it is time to move into the modern age and chart a new path -- one without an exam. The focus on an exam to the exclusion of all other solutions has left California with no plan at all.

Law schools and their graduates have waited patiently hoping for an announcement that would be more thoughtful and workable than some of the jurisdictions who rushed their plans and later had to change course. But the delays continue and no plan emerges for California. Meanwhile, graduates do not have unlimited money to support themselves, or unlimited time to wait for their licensing process to be complete.

The lack of leadership by the California Supreme Court and the California State Bar is an embarrassment. To insist upon a licensing exam that has been under attack for years is indefensible as a pandemic rages on. No one has produced any data to support the notion that somehow a high stakes licensing exam leads to better attorneys. No one has suggested a way to offer an exam without serious health risks. Yet the State Bar and the Supreme Court remain steadfast in their commitment to an exam.

The bar exam is antiquated. The California Bar Exam has not been thoughtfully evaluated or assessed for decades. Yet much has changed for attorneys during that time. While the State Bar is currently analyzing survey data it collected from practicing lawyers, the middle of a pandemic is not the time for subtle changes. The bar exam needs major surgery, not a Band-Aid.

The bar exam promises much and delivers little. A licensing exam does nothing to ferret out the corrupt or impaired attorneys who cannot serve their clients. A robust moral character process, effective diversion programs, and a fair discipline system are better solutions for those problems.

The bar exam is effective at keeping attorneys out for no good reason. It is time to replace it with something that works. Today is a time of great social change. That should include a fair process to license lawyers without clinging to an exam that cannot be administered safely or fairly. The California Bar Examination needs to be replaced.

The solutions are not simple, but they are plentiful. Young lawyers need supervision and mentoring far more than they need months of studying followed by a high stakes exam. A diploma privilege with supervision requirements is one solution. Law students have much more experience today – everything from prosecuting certain crimes as a certified law clerk or representing clients in law school clinics. Supervising students works. This could be a model for supervising recent law school graduates. Law schools are willing to step up and provide a bridge from graduation to practice.

Alternatively, the exam could be administered in phases during law school with multiple opportunities to demonstrate basic skills that are relevant today. Law schools could be required to provide additional training and courses for students who are low performing. The medical profession’s residency model could be adapted to law. The continuing legal education requirements could be expanded and transformed.

The energy being wasted on attempting to give an exam during a pandemic should be funneled into investigating any of these alternatives.

And finally, but most importantly, the bar exam is part of the pipeline that keeps the legal profession from diversifying. Standardized testing has a history of preserving the status quo. Bar examiners at the national and state levels can keep trying to explain away the statistics as something other than bias, but students of color face an exam with additional hurdles. It is time we recognize that for what it is and put an end to it.

Whether the exam is replaced temporarily or permanently need not be addressed now. The Court and the State Bar are about to squander a perfect opportunity. A trial run to determine whether supervised practice or diploma privileges with conditions, or any number of other solutions would allow California to lead with innovative ideas. If the new solution fails, it can be retooled when the pandemic ends. If the new solution is a success, then California opens the door to better practices.

Susan Smith Bakhshian is a professor at LMU Loyola Law School, where she is Director of Bar Programs. She is the author of “Clearing the Last Hurdle: Mapping Success on the California Bar Exam.”

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