Subscribe
Share
Share
Embed
The Official Podcast for the Minnesota Law Review - https://journals.law.umn.edu/mlr
00:51:26:26 - 00:51:49:06
Unknown
Hello and welcome to the Experto Crede podcast. I'm your host, Lee Silverberg. And today I'm very excited to have a good friend of mine. You're Chang along with me to talk about her note. Her note is entitled, in part, willful blindness to the bar exam. Thanks for having us here. I'm glad to have you on. Awesome. I'm really excited to be here.
00:51:49:11 - 00:52:08:04
Unknown
So before we begin, I always like to talk about the background and the writing process to the paper. And I think that it's a really important thing to understand when readers go about the actual reading. But of course, we don't get that from the text. So I was wondering if you could tell us a little bit about yourself, your own background, and how you came to write this piece?
00:52:08:14 - 00:52:47:54
Unknown
Yeah, for sure. So in my past life, before I was a law student, I worked in education policy and parent organizing around education issues. And before that, my, like undergraduate education and research was around these editor policy and so editor policy topics. And so these questions of equity and how we address these inequities in our educational institutions and how we are addressing these problems to make sure that how we teach students is more inclusive and meet students where they at.
00:52:48:09 - 00:53:08:06
Unknown
These are all topics that have been really have always been very interesting for me. And so this note presented a really great opportunity to dive into some of those questions. But in the context of the law and law school, which was really salient for me, obviously, because I am still a law student, I'm in my third year here at the U.
00:53:08:11 - 00:53:33:09
Unknown
And I was really fortunate to work with an incredible note and comment editor named Seiko Shastri, who suggested that I speak to Professor David Schultz. And he kind of tipped me off as my advisor to the potential to excuse me, the history of of the American Bar Association, this sort of exclusionary history that the Bar Association has had.
00:53:33:16 - 00:53:58:14
Unknown
And as I was diving into the research of it, the topic of the bar exam as this gatekeeper to the legal profession kept on coming up, because this is a topic that has been discussed for for many years. And I thought that with the pandemic and states being kind of forced to question the reliance on the bar exam, whether they wanted to keep this traditional format, those questions were really relevant.
00:53:58:14 - 00:54:22:21
Unknown
And so it seemed like a really good time to kind of dive into this topic. Well, I'm glad that you wrote it. Going back maybe to the beginning, the full title of the note is Barring entry to the Legal Profession How the Law Condones Willful Blindness, the bar exams, racially disparate impacts. And I think that the title in full is actually really, I would say, very both intuitive and informative.
00:54:22:33 - 00:54:40:35
Unknown
And your article really walks through the origins of the bar exam, and the words that came into my mind first were yikes! And then oh no. And I kind of saw, as the article went along, exactly what you were pointing to. And so I'm curious, was that your reaction? Did you come into it knowing that that was probably what you were going to find?
00:54:40:35 - 00:55:14:47
Unknown
And after writing it as a kind of a retrospective, how do you still see the the ethics of the issue? Yeah. So this history was was really interesting because the rise of the bar exam or the, the rise in how many states were starting to use the bar exam as, as a, as a method of admitting new lawyers to the profession coincides also with the rise of and the and the power and influence of the ABA, the American Bar Association and other state bars.
00:55:14:52 - 00:55:44:18
Unknown
And that is all happening during the 19th and early 20th centuries, where what a coincidence. It's also an increase in the number of Jewish black lawyers, immigrants who are entering into the legal profession. And there's a lot of really racist and inflammatory language that is used to justify creating these bar associations and creating these what was term then as sort of like higher standards to, to the, to the legal profession.
00:55:44:23 - 00:56:06:26
Unknown
You know, the purpose was to improve the reputation of lawyers, to keep the profession respectable. And I've and I've used the word coded before to describe some of the rhetoric being used. But some of this language just straight up isn't coded at all. It's pretty explicit. I talk about the the dean of the law school who in 1911, you know, publicly wrote this letter.
00:56:06:26 - 00:56:33:33
Unknown
He's supporting a minimum college requirement. And he's literally saying, you know, we want to reduce hereafter the spawning mass of promiscuous semi intelligence, which now enters the bar like there's no coding there at all. And it's interesting because I think in the modern day agent, you know, today like yes, many professions acquire a college requirement or they require you to to have gone to college a college degree.
00:56:33:33 - 00:57:01:02
Unknown
And but it's just when you're comparing it to the language that's being used back then and, and like that, that, that was the language used to justify moving from diploma privilege, which is where, you know, as soon as you finished law school, you can practice, you practice the law without going, without taking the bar exam. So moving towards bar exams from diploma privilege and also mandatory school accreditation.
00:57:01:02 - 00:57:26:16
Unknown
So like you need to have gone to a certain school that's been accredited by the ABA before you can take the bar exam. You know, these are standards that were being kind of justified with language like this, you know, in the early 20th century. And those are standards that still exist today. So again, like I understand sort of this consumer protection argument, lawyers have a lot of social standing.
00:57:26:26 - 00:57:49:40
Unknown
The clients are entrusting a lot of trust in their in their lawyers. But it's really hard to take that consumer protection argument seriously or believe that that was really the only kind of impetus for this movement and how we're and how we're accepting lawyers to the bar. When you've got language like this that's out there. So not I was surprised by how blatant some of the quote unquote coded language was.
00:57:49:40 - 00:58:17:45
Unknown
But I'm not surprised by the legacy, especially when you consider that in 2020, 86% of lawyers were white. Jumping to the present, as you say so aptly put there, the current passage rates empirical data shows continuing disparate impact from the bar exam. I know that we go to a really wonderful law school, but our law schools also had conversations around, you know, demographics and diversity.
00:58:17:47 - 00:58:40:47
Unknown
I think they've been fairly intense conversations at some points that are very meaningful. And I think that those conversations are probably though I have no experience with other law schools probably being had at law schools around the country. Do you think the data speaks for itself on not necessarily any one particular law school, but law schools generally, or just bar passage rate generally for individuals entering the legal field?
00:58:40:47 - 00:59:11:21
Unknown
Or is there more to it than just the data? Right. So the issue, one of the issues I see right now and that I kept coming across in my research, is that there isn't a lot of disaggregated data on who is passing the bar exam. California is the only state that's releasing regularly after each bar administration, a demographic breakdown of how many students are passing the bar in their state, and New York does intermittently.
00:59:11:21 - 00:59:37:16
Unknown
But the numbers coming out of California are pretty outrageous. I just looked it up. They just released the numbers from the February 2021 bar exam, and 80.7% of white test takers passed on their first try. And in comparison, 49.6 of black test takers, 63.1% of Hispanic test takers and 58.1% of Asian test takers passed on the first try.
00:59:37:18 - 00:59:58:26
Unknown
So that was a lot of numbers, but I think you can kind of easily see there's this pretty huge gap that's happening there. And note that American Indian and other native groups don't even get their own category, because I think it's a very small number of those who are who are even getting to law school. Unfortunately, based on some of these other barriers that we'll talk about.
00:59:58:30 - 01:00:36:47
Unknown
But it are no, but there aren't a lot of numbers out there. And I think that it's it's really tough for any bar association, any state bar association to say that they're really addressing these inequities and, and the big racial gaps in who's practicing the law. If you don't have the numbers to really back it up. And I think it's showing that not only are you looking at those numbers and and seeing this problem on its face, but that because of that, you weren't able to look at the more underlying reasons.
01:00:36:50 - 01:01:01:14
Unknown
You know, there's you know, there's no I'm not suggesting at all that like student or test takers of color are just not able to pass the bar. They're not competent to pass the bar, become lawyers. There's already so many other social and racial underlying reasons, right? Like, you know, students of color in law school are much more likely to have to take out loans.
01:01:01:28 - 01:01:23:54
Unknown
And and law school is extremely expensive. And when you think about how expensive and time consuming it is to to take and study for the bar exam, you've got to pay maybe up to several thousand dollars to buy a to purchase a bar prep program, you have to probably take almost two months off if you want to be able to study full time.
01:01:23:57 - 01:01:43:38
Unknown
And those are those are luxuries that a lot of students can't, can't take on. And so I think that, you know, this is those numbers really do speak on its face, but also there aren't a lot of numbers out there. So it's kind of questionable how we're even going to address these inequities head on if we don't have the data to back them.
01:01:43:42 - 01:02:22:18
Unknown
Jumping off that point just a little bit, I think that the idea that the bar exam is not in itself alone, the only thing that's prohibiting test takers, but the things that surround it that we've kind of built into it, isn't necessarily a I think it's an invisible point sometimes for individuals who come from a privileged background, who can take, let's say, the two months off just to study and then go take the test and move on in comparison to individuals who they might not see because they're studying, who have to go and actually work or have to take on extra loans or cannot afford to do so, and are essentially precluded from engaging with
01:02:22:18 - 01:02:44:09
Unknown
the bar exam in their best, almost setting the best environment possible, the one that's most conducive to them passing. And I'm curious if, in your mind, at least that's an indication of a failure on the part of the bar exam to deal with, I would say, a more modern view of who's going to law school, the needs of the student.
01:02:44:14 - 01:03:12:14
Unknown
As opposed to this, I would say very reductive view of saying, oh, well, clearly this means that they actually just aren't as good at taking the test, which I think both of us would agree. That's obviously not true. Absolutely. And you're seeing and I think that's the justification for the bar exam is, you know, some people really believe that a standardized test is the most equitable way of deciding whether or not someone is competent to practice the law.
01:03:12:18 - 01:03:43:23
Unknown
You know, it's a test that everybody takes. They control the the testing environment. But like you're saying, that really is showing a little bit of blindness. That's the word I use a lot in my note to those underlying issues. And I think it's that sort of rationale is based on an assumption that every student that is coming to law school is coming from the same or similar background, and just this reliance on on that viewpoint is harming a lot of students.
01:03:43:23 - 01:04:03:50
Unknown
And, and I would argue it's really harming our legal profession as well. Let's talk about willful blindness as a concept that's like you said, something that shows up in your note quite a lot, and I thought it was a really helpful descriptor. It gave me the language that I needed to really talk about and dissect the issue. So I want to give you the floor here.
01:04:03:52 - 01:04:23:33
Unknown
Can you tell me about it and help me understand it a little better? Yeah. So we'll willful blindness I was really inspired by two legal concepts that are pretty well known. The first is this idea of intentional blindness, which was a term coined by Ian Haney Lopez. He's a prominent legal scholar on how racism has evolved in the law.
01:04:23:38 - 01:04:49:28
Unknown
And so he uses intentional blindness to describe the racial jurisprudence of of courts and remaining intentionally blind to racial context when they're deciding these discrimination cases. And then I'm also pulling from the concept of willful ignorance, which is a well-known concept in criminal law. It's describing someone who intentionally keeps themselves unaware of certain facts so that they can avoid liability.
01:04:49:28 - 01:05:22:02
Unknown
And I use willful blindness to kind of combine those two terms and ideas to describe both courts and what the legal profession is doing when faced with their history of their being and and of the disparate impacts of the bar exam. And and it's pretty egregious, I think when you look at even the American Bar Association's website, you know, one of their three main or I don't know how many objectives they have, but one of their few objectives is to eliminate bias and enhance diversity.
01:05:22:06 - 01:05:56:40
Unknown
And so the messaging is out there, and we saw that especially after George Floyd's murder here in Minneapolis, like the onslaught of diversity equity initiatives, of how do we support people of color and those are all and education projects. And I think that those are all extremely important, but also shows a little bit of blindness to me that we're not looking at these larger structural institutions, such as the bar exam, that are shown to have highly disparate impacts based on the race of the test taker.
01:05:56:45 - 01:06:22:28
Unknown
That to me shows some willful blindness. So if I might ask what it sounds like in some ways, and what I understood a little bit from your article, your note was that structural change is the kinds of things that really do make an enormous impact on each individual person that might be suffering from this kind of not invisible oppression, because it's very visible once you actually look for it.
01:06:22:28 - 01:06:25:21
Unknown
But.
01:06:25:26 - 01:06:53:11
Unknown
A little bit suppressed oppression in a way, those are much harder to come by. Do you think that having more data, perhaps, or having better access to data, might bring a push that's stronger for structural change that we saw, let's say, after, you know, the George Floyd riots, for example. Well, I think data is very important. And I was very frustrated in you.
01:06:53:14 - 01:07:19:28
Unknown
I couldn't even find data on the demographics of lawyers within a certain state. How many white what's the percentage of white or black or Asian lawyers in Minnesota, for example? So that was really frustrating. And I think that data can be very convincing. It can be really powerful and creating and sort of instigating inspiring change at the same time.
01:07:19:33 - 01:07:50:06
Unknown
I don't want the focus on data to be the only thing. I think that it also takes a lot of time to collect data. And what this note is discussing is like the data out there is pretty strong enough. California is one of the most diverse states in the country. I think we have enough data and also enough kind of anecdotal evidence what we're seeing around us, the lawyers that that we're practicing with, to say like that, there does need to be a change.
01:07:50:06 - 01:08:19:26
Unknown
And bar associations have talked pretty openly about wanting to have a more diverse legal profession. So the the reasoning is sort of already there, but but not the push for, again, like these more structural institutional changes which data can help with. But I hope it's in tandem. And it's not like we need to wait for the data until we can really start having these conversations, moving away from the data.
01:08:19:28 - 01:08:47:30
Unknown
Then I think that another thing that really stood out to me was that you walked through several cases that really did, I would say, elaborate on this general almost immunity of bar associations from any kind of challenge to their policies or their strategies for keeping their bar up to snuff. Could you give us some kind of background on those cases, or talk about any of the case that really stood out to you that you said, wow, okay, this is really quite the block?
01:08:47:35 - 01:09:09:28
Unknown
Yeah. It was. I found it really interesting to go through some of these federal court cases because there are a few instances where you were like, oh, the court is just getting so close to articulating what the issue is. And then they kind of back away a little bit. So I wanted to talk about Griggs, which is a really interesting case from 1971.
01:09:09:30 - 01:09:37:50
Unknown
It's it's a Supreme Court case. It's not a 14th Amendment equal Protection Clause case, but it actually shows that courts have used disparate impact evidence to prove that a law is racially discriminatory. So Greg's is a case where the plaintiffs are black employees who are challenging standardized general intelligence tests that was being used by their employer to determine whether or not an employee would get a transfer.
01:09:37:50 - 01:10:12:28
Unknown
And the plants are claiming that this violated title seven of the 1964 Civil Rights Act, which prohibits employer based discrimination. So the court so basically, the plaintiffs are bringing evidence showing that the white test takers were getting way more favorable transfers. And the reasoning was like, well, they're just doing better on the test. So the court found that even though there may have been good intent on the part of the employers, it doesn't matter if the outcome results in disparate or that intent doesn't matter if the outcome is disparate impacts.
01:10:12:28 - 01:10:44:23
Unknown
And a phrase that they use, which is really illustrative is fair and form discriminatory and operation. So that was a really exciting outcome. And then in Tyler v Vicary, which is a case that comes out of the Fifth Circuit in 1975. So just a few years after Greg's, the plaintiffs who are, black law graduates who have failed the bar exam in Georgia, they try to kind of transfer the analysis that used in Griggs to the 14th amendment.
01:10:44:23 - 01:11:07:52
Unknown
So they're arguing that the they're challenging the bar exams constitutionality under the 14th amendment. And their evidence is really striking. So in July 1972, 100% of black test takers fail the Georgia bar exam. And then the next year, in February and July, more than 50% failed. So there are going like this evidence is pretty clear. This is pretty discriminatory.
01:11:07:57 - 01:11:37:33
Unknown
And the court should use strict scrutiny, which basically would mean, you know, we're going to strike this down and the court comes out and says that, no, we need more than disparate impact. And they say this really interesting thing. Or they're like otherwise few legislative efforts would survive such scrutiny. And kind of just saying almost offhand, like, yeah, none of our laws, if you put them under this disparate impact kind of microscope, you're going to find that there's disparate impact, and we'd have to strike them all down.
01:11:37:38 - 01:12:01:30
Unknown
And I thought that was kind of an interesting, like, kind of moment of self-awareness that didn't really go anywhere, anywhere. And so the court goes on to use rational basis review, which, you know, they were like, okay, yeah, the state has an interest in making sure that people who are lawyers are competent. And they found that this this had a rational relationship to that the bar exam did.
01:12:01:40 - 01:12:28:23
Unknown
And one thing I want to point out is that the dissent kind of suggests, like maybe we should look at context. You know, it's kind of interesting that after you have 100% of black test takers failing exam, there was no investigation, there was no sort of questioning of of, you know, of what's going on here. And, and that may be that in addition to the data, could suggest what he called a systematic pattern of unequal results.
01:12:28:28 - 01:12:50:57
Unknown
And that was an argument that was like, oh, it's on paper, it's a written dissent. And, and and that sort of is what I think I would have liked to see. I think that we would have had plenty of evidence now, almost about 50 years later, to sustain sort of a challenge like that. And I just wanted to add that Georgia still doesn't release the demographic information of their lawyers.
01:12:50:57 - 01:13:20:26
Unknown
So I assume that I assume that it's still pretty disproportionately a white white bar in Georgia. If we could talk about that descent for just a little bit and why the idea of context mattering matters, I think in many law cases that I've read, oftentimes the context of a case can be swept under just going through the facts and the law that the the background that is often really salient is left out of the cases.
01:13:20:26 - 01:13:44:21
Unknown
But of course, in this case, the dissent really does make an effort to highlight that. Do you think that that kind of background context, the circumspection kind of aids in the analysis, or do you think that getting rid of it in some of these cases is really how the courts are driving towards what is kind of a counterintuitive conclusion, that something is okay when reality, we know that it's not.
01:13:44:26 - 01:14:13:16
Unknown
I think that there is a place for some of that more contextual evidence. And again, the court that's federal courts have used that sort of contextual evidence, you know, when after Brown v board, which is, you know, segregation of students based on their race is illegal. Southern states immediately try to create these laws that kind of went under, kind of try to be sneaky about it.
01:14:13:18 - 01:14:41:50
Unknown
You know, we were creating laws that, you know, people are people. School officials are going to assign students to schools based on certain characteristics, but they're not naming it as race. And so that's when the Supreme Court comes out and says that, well, we can also look at the intent of of the legislation. What's the language that's being used to determine whether or not there is sort of this really insidious discriminatory intent, even if on its face it's it's neutral.
01:14:41:54 - 01:15:06:57
Unknown
And so there is a history of the courts using context. And I, I think that without context you can look at data like data that's coming that was coming out of Georgia and the Tyler Vicary case. And you can kind of make up any sort of excuse on your own if you're not if you're not using the context of the evidence.
01:15:07:02 - 01:15:36:09
Unknown
And this is also, to me, kind of showing just a blatant disregard for the lived experiences of these plaintiffs to just say that, no, this is this is like meeting a rational need of the states and not really considering the broader landscape of what's going on. So to, I guess, the cap this off to talk about that broader landscape, you know, I guess what's next in your mind?
01:15:36:14 - 01:16:02:47
Unknown
What do you think the right outcome for the bar exam is? And maybe if you could tell us what you think the right outcome generally is to make, you know, entering the legal profession maybe a little more equitable. I know it's a that's a big ask big question. It's a good one though. My biggest well, I want to start by saying that my biggest regret in writing this note, I started writing this note now, you know, more than a year ago.
01:16:02:52 - 01:16:23:11
Unknown
Is that in my conclusion, I don't upfront say that I think the solution is to abolish the bar and to move on to different methods of ensuring the competence of the people who are entering the bar. And, and so I'm saying it now, I guess that's how this is my way of making a little amendment to my own note.
01:16:23:23 - 01:17:06:18
Unknown
But the exciting thing is that that is a conversation that's really happening. I think it was spurred by the Covid pandemic during the pandemic, I believe 4 or 5 states, actually five states temporarily allowed to diploma privilege. And since then, it's sort of spurred more conversation around, around what we can, what we can do differently. And so just I think about a week ago, a little more than a week ago, the Oregon Supreme Court, they publicly supported an experiential learning pathway for students and postgraduate supervised practice pathways for students in, in, in place of using the bar exam.
01:17:06:18 - 01:17:24:52
Unknown
And and that's still just like a beginning kind of stepping stone. There's still a pretty long way to go before I think Oregon would get rid of their bar exam. But that's really exciting because in every state it's the Supreme Court that is the state Supreme Court that is responsible for setting the standards. So that's really, really exciting.
01:17:24:52 - 01:17:50:52
Unknown
And that conversation has been, like I said, been going on for a while. Mitchell Hamlin's dean has been really open and calling for a change to how we license lawyers. And, and I just want to add that, the, the arguments of, of the bars being an effective way of weeding out people who aren't competent or ready to practice the bar.
01:17:50:59 - 01:18:17:52
Unknown
A lot of those arguments, I think, don't have a lot of evidence backing them up. So, for example, in 2020. There's a study in California showing that there's no relationship between how low you put a cut score, which is the score that you need on the bar exam to pass. So no relationship between the selection of a cut score and then the number of complaints, formal charges or disciplinary actions taken against attorneys in in that jurisdiction.
01:18:17:52 - 01:18:39:30
Unknown
So, just showing that maybe the bar isn't as accurate in determining who's going to be a good lawyer and who isn't. And there are already so many. And I talk about this a little bit in my note. There are already so many different steps that law students have to take to become Bard. I mean, we're experiencing that right now.
01:18:39:30 - 01:19:14:04
Unknown
Is three Ells, the whole process of character and fitness. And, you know, I know someone that has to like, send, send their fingerprints to Oregon because they live there for a few years and they need a criminal background check. And so there's a lot of a lot of steps already in this process. And so I think that adding, you know, instead of doing the bar, we have these experience learning pathways or alternative means we'll just show a more well around, provide a more well-rounded evaluation of someone's competency than a really expensive and archaic standardized test.
01:19:14:09 - 01:19:33:04
Unknown
And like I said, like students of color already go through so much just to get to law school. Not only do you have to, you know, you probably have student loan debt from undergrad. You have to take the else out, which is another standardized test. You have to take out loans. You have to survive being in a white dominated institution.
01:19:33:04 - 01:19:57:38
Unknown
And then at the end, there's just like this final boss of the bar. I think we're really doing it as service to our profession by kind of letting that final barrier, I think, just prevent a lot of really talented people from being lawyers and being being our peers in the legal profession. Thank you, IRA. I really appreciate you coming on with us.
01:19:57:38 - 01:20:17:30
Unknown
And I think it's an excellent way to cap off the discussion today. And I invite everyone to go ahead and read your article in volume 106. Thank you for having me. This has been a lot of fun.
01:20:17:35 - 01:20:20:47
Unknown
Thank you for listening to the.
01:20:20:52 - 01:20:36:42
Unknown
All the opinions discussed in this podcast are the opinions solely of the authors and myself, and do not reflect their institutions, nor do they reflect the opinions of the University of Minnesota, the University of Minnesota Law School, the Minnesota Law Review for any other parties.