Contrary to popular belief, the bar exam is not a longstanding norm of the legal profession. Interestingly, it is only recently that a regulated, formal exam was required for law school students to enter the legal field after graduation. In the past, oral exams, clerkships and legal apprenticeships were used to monitor and regulate newly graduated attorneys. In fact, the bar exam has only become commonplace within the last century.
The bar exam is a standardized test that law school graduates must take and pass to become licensed attorneys in the United States. To practice law in any given state, a law school graduate must pass the state bar exam in that specific jurisdiction. In theory, the bar exam is designed to assess individuals’ knowledge of the legal system in order to assure a higher standard of competency within the profession.
Interestingly, however, the bar exam was not only created with the goal of standardizing legal practices, nor was it primarily intended to ensure the qualifications of law school graduates. One of the most significant driving factors for the widespread establishment of the bar exam was to impede non-elites from entering the legal profession. In essence, the bar exam was used as a gatekeeping mechanism, preventing people of color and other marginalized individuals from becoming licensed attorneys and rising the ranks within the field of law.
A History of Racial Inequality
In the late 19th century, Black and Jewish Americans as well as immigrants began to apply for admission into the American Bar Association (ABA) in increased numbers. It was at this time in history that the modern bar exam became prominent; the timeline of the bar exam’s rise in popularity is far from a coincidence.
Sadly, in the nation’s history, deep-seated prejudices influenced which candidates could pursue the legal profession. Historically, the American Bar Association systematically denied admission to aspiring Black lawyers. Given the notoriously racist practices of the ABA, in 1925, a group of Black attorneys who were denied admission to the ABA joined together to create the Negro Bar Association, now known as the National Bar Association (NBA). Unwittingly, this marginalized group of attorneys established the most expansive network of predominately Black legal professionals, which still stands today.
The NBA’s central goal was to increase opportunities for Black attorneys and diversify the field of law. While this was an effective strategy for increasing the number of attorneys of color, it remained a shadow organization. Indeed, the barriers for entrance into the American Bar Association remained, including the bar examination process. In alignment with the NBA’s original mission to reduce racial inequality, in 1970, the NBA called for the abolishment of state bar examinations. While the NBA advocated for the abolition of the bar exam, it was perpetuated by the ABA, the historically racist law association. As shown by this history alone, the original purpose of the bar exam was to retain the elitism and classism of the legal profession.
The Legal Profession Today
Even today, the legal profession remains deeply tainted by longstanding racial inequality. Black people are less represented in law than in almost any other profession in the United States, and this is no coincidence. It was not until 1963 that the ABA officially determined that race and religion would not be considered in the admissions process.
According to the American Bar Association, as of 2020, 86% of lawyers in the United States are non-Hispanic whites. It is abundantly clear that white men and women are drastically overrepresented within the field of law; although Black people comprise 13.4% of the U.S. population, only about 5% of licensed attorneys identify as Black. This has remained true for over a decade, indicating that social progress within the legal profession is stagnant, and Black representation is severely lacking. While the bar exam is not wholly responsible for inequity within the field of law, it is very likely a contributing factor to the longstanding lack of diversity and unequal opportunity for aspiring lawyers of marginalized identities.
Continued Barriers to Marginalized Communities
In addition to its racist origins, there are myriad structural barriers that prevent people of color from attending law school and passing the state bar examination. Most notably, the cost of attending law school is already exorbitant. In and of itself, the cost of law school prevents the majority of low-income individuals from entering the legal field. On top of thousands and thousands of dollars expected in the cost of tuition, preparing for and taking the bar exam is also a highly expensive process.
Most graduates of law school spend at least $2,000 on exam fees, review materials, tutoring and prep courses. Inherently, wealthier graduates have a deeply unfair advantage, as they are able to invest far more time and money into their success. Some graduates of law school spend upwards of $10,000 preparing for the bar exam. As a result of systemic inequality and generational wealth, many white law school graduates have greater financial resources than their Black counterparts. Consequently, many Black law school graduates already face financial barriers to passing the bar exam. In 2020, 88% of white candidates taking the bar exam passed, compared to only 66% of Black candidates. This data indicates that the bar exam still presents a stark disadvantage for people of color.
The Need for Change
Ultimately, the bar exam is an unnecessary barrier to entry into the legal profession. Although the bar exam is framed as being the ultimate assessment of legal competency, aptitude and predictor of success, in reality, it only assesses individuals’ memorization and test-taking abilities. The exam is also highly influenced by the extent to which participants can invest in preparation services, giving an intrinsic and unfair advantage to wealthy candidates. Most importantly, the bar exam fails to actually ensure legal competence or predict the professional success of aspiring attorneys. Hence, its continued use as a mechanism for entry into the field of law must be deeply and critically questioned. The societal prejudices that perpetuate the existence of the bar exam also persist in blocking equitable access to this venerable profession.
