Paul L. Caron

Wednesday, May 24, 2023

WSJ Op-Ed: The New NextGen Bar Exam Puts DEI Over Competence

Wall Street Journal Op-Ed:  The New Bar Exam Puts DEI Over Competence, by Jay Mitchell (Justice, Alabama Supreme Court):

NextGen LogoThe bar exam is about to get a nationwide overhaul. The National Conference of Bar Examiners, or NCBE, which creates and administers the uniform bar exam, plans to roll out a revamped version of the bar exam, which it calls the “NextGen” exam, in 2026. After attending the NCBE’s annual meeting this month, I have serious concerns about how this test will affect law students, law schools and the legal profession. ...

[P]erhaps the biggest concern is the NCBE’s use of the NextGen exam to advance its “diversity, fairness and inclusion” agenda. Two of the organization’s stated aims are to “work toward greater equity” by “eliminat[ing] any aspects of our exams that could contribute to performance disparities” and to “promote greater diversity and inclusion in the legal profession.” The NCBE reinforces this message by touting its “organization-wide efforts to ensure that diversity, fairness, and inclusion pervade its test products and services.”

What does all this mean—and how does it have any relation to the law? Based on the diversity workshop at the NCBE conference, it means putting considerable emphasis on examinees’ race, sex, gender identity, nationality and other identity-based characteristics. The idea seems to be that any differences in group outcomes must be eliminated—even if the only way to achieve this goal is to water down the test. On top of all that, an American Civil Liberties Union representative provided conference attendees with a lecture on criminal-justice reform in which he argued that states should minimize or overlook would-be lawyers’ convictions for various criminal offenses in deciding whether to admit them to the bar.

None of this is encouraging. It shouldn’t matter who you are or where you come from—if you can demonstrate minimal competency on the bar exam and meet a state’s character-and-fitness requirements, you should be allowed to practice law. If you can’t, you shouldn’t be given a license to handle the legal affairs of others. The bar exam should test the law straight—without respect to ideology and on a race- and sex-blind basis.

Josh BLackman (South Texas; Google Scholar), Justice Mitchell (Alabama): The New Bar Exam Puts DEI Over Competence:

In recent years, there have been many shifts in how states administer bar exams. One of the most significant developments has been the expansion of the Uniform Bar Exam (UBE). The upshot of the UBE is that a score is "portable." Someone who receives a passing score in one state can transfer that score to another state. The biggest downside, in my view at least, is that the UBE eliminates the requirement to know any state-specific law. ...

To date, 40+ jurisdictions have adopted the UBE, including my home state of Texas. And that number will eventually approach 50, as states without the UBE place their law students at a competitive disadvantage. The appeal of portability trumped the appeal of lawyers actually knowing the law of the state in which they'll practice. It is difficult to imagine any of these states could abandon the UBE, and revert to a state-specific exam.

Now that the states are hooked, the National Conference of Bar Examiners (NCBE) is preparing the next generation of the exam. The "NextGen" Exam, as it is known, will be launched in 2026. The 1Ls starting in the Fall 2023 will eventually sit for this exam. Prudent law schools will craft their curriculum, in particular 1L coverage, to ensure students are adequately prepared for the NextGen Exam. As usual, law schools are trying to prepare for a moving target—the details of that NextGen are not yet final. And there is reason for concern.

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