Saturday, October 29, 2022
Joan W. Howarth (UNLV; Dean Emerita, Michigan State; Google Scholar), The Professional Responsibility Case for Valid and Nondiscriminatory Bar Exams, 33 Geo. J. Legal Ethics 931 (2020):
Title VII protects against workplace discrimination in part through the scrutiny of employment tests whose results differ based on race, gender, or ethnicity. Such tests are said to have a disparate impact, and their use is illegal unless their validity can be established. Validity means that the test is job-related and measures what it purports to measure. Further, under Title VII, even a valid employment test with a disparate impact could be struck down if less discriminatory alternatives exist.
Licensing tests, including bar exams, have been found to be outside these Title VII protections. But the nondiscrimination values that animate Title VII disparate impact analysis for employers apply just as fundamentally to attorney licensing through principles of professional responsibility and legal ethics.
This Article examines the civil rights cases from the 1970s that established bar examiners’ immunity from Title VII. It then analyzes our professional duties of public protection, competence, and nondiscrimination that require valid, nondiscriminatory attorney licensing tests, suggesting that the Title VII framework be borrowed for this purpose. The Article then undertakes that scrutiny, presenting evidence of the disparate impact of bar exams and their unproven validity, and suggesting feasible, less discriminatory modifications and alternatives. In other words, core professional responsibilities require consideration and adoption of valid licensing mechanisms that can reduce any disparate impact in who we permit to enter our profession, and who we exclude.