There is good cause for the movement to abolish the law school entrance exam, and there is no need to stop there.
Should candidates for law school still be required to take the LSAT? The long-standing requirement that prospective students take a “valid and reliable test” as part of the application process at accredited law schools will be abolished under a recommendation made by a committee of the American Bar Association. The bar test might be the next step if the LSAT is eliminated.
A cascade of allegations that the use of the Law School Admission Test disadvantages minority students led to the recommendation to do away with the admissions testing requirement. Many proponents of diversity vigorously challenge the assertion.
Being told they won’t perform as well on the test as White applicants stigmatizes some people. But let’s suppose for the sake of argument that the LSAT does really represent an unfair barrier to entry into the legal profession given that the argument against the test appears to have persuaded the wordily called Council of the ABA’s Section of Legal Education and Admissions to the Bar.
Why isn’t the bar test covered by the same defense?
No one can practice law without passing the bar exam, with the exception of Wisconsin. Even lawyers with other licenses must pass an exam in several states in order to practice there, with California being the most notable.
These regulations serve as standard entry hurdles that can be easily adjusted to limit the number of lawyers available.
The ABA also acknowledges that minority candidates’ bar test success rates are still below average. In 2021, researchers discovered a link between a law school’s bar passage rate and the proportion of non-White students enrolled there. Hmmm. The bar test might as well be thrown out with the LSAT if its alleged impact on diversity is a problem. Alternately, the exam can be optional, leaving it up to the discretion of the employer.
If we could identify the crucial public function the bar examination serves, the barrier to entry, especially for minorities, might be justified. That’s more difficult than you may think.
In a resolution issued fifty years later, the ABA reiterated its 1921 proposal for a written examination for all lawyers. It’s worth reading that resolution from 1971. It is short on data and filled with bizarrely implausible claims. For instance, it was claimed that the exam requirement would force them to satisfy people other than “those who taught them” and “encourage law graduates to study subjects not taken in law school” a feat that the ABA, remarkably, described as constituting “a valuable experience in preparation in appearing before a completely strange judge.”
Nine years later, the Montana Supreme Court stated that without a bar test, “the wrong people”—such as law professors—would have control over who may enter the profession.
All of this lacks substance. Perhaps there is no need for law school if, for instance, a student can learn the entirety of a subject during the bar review process. Since the practice of “reading for the bar” while an apprentice to an attorney in practice is much older than the American Bar Association, the profession once understood this.
However, the predecessor of the aforementioned wordily called committee stated that there was “little disagreement” that formal education produced lawyers who were superior to “apprenticeship as an attorney’s clerk” in 1881, three years after the ABA was established.
The group claimed that the classroom was the greatest place to instill the beneficial habits of “disputing, reading, reasoning, and discoursing.” How did the participants learn this? The members claimed that it was “the verdict of the best informed.”
The excuses of today are not much better. Nobody can actually describe what the bar test measures, if it indeed measures anything at all. The exam has never received a thorough validation. What it predicts is unknown to us. The bar test is “a superb hazing ritual,” according to detractors, who only offer “arguments that sound selfish, condescending, and protectionist.” However, many schools attempt to increase their students’ bar passage rates by essentially teaching to the test.
If none of this is convincing and the ABA still wants to maintain the bar exam barrier, there are a few things to think about. The LSAT also predicts success on the bar exam, albeit with less accuracy than law school grades, which are the best indicator. Additionally, there can be a connection between the typical LSAT score of a school and the percentage of its alumni who pass the bar. But even if the LSAT is subpar, the bar exam is worse.
Don’t misunderstand me. In all cases, I’m not opposed to standardized testing. For instance, I would be in favor of a proposal that would see the bar authority adopt the medical industry’s practice of requiring certification before members could promote themselves as experts in specific disciplines. But there’s no persuasive justification for forcing graduates of accredited law schools to jump through yet another hoop before they’re allowed to practice their trade.