An Empirical Study Of The Bar Examination’s Disparate Impact On Applicants From Communities Of Color

Scott Devito (Ave Maria; Google Scholar), Kelsey Hample (Furman; Google Scholar) & Erin Lain (Drake; Google Scholar), Onerous Disabilities and Burdens: An Empirical Study of the Bar Examination’s Disparate Impact on Applicants From Communities of Color, 43 Pace L. Rev. 205 (2023):

This Article provides the results of the most comprehensive and detailed analysis of the correlation between bar passage and race and ethnicity. It provides the first proof of racially disparate outcomes of the bar exam, both for first-time and ultimate bar passage, across jurisdictions and within law schools. Using data from 63 public law schools, we found that examinees from Communities of Color underperform White examinees by between 12.3 and 72.72 percentage points with all but one racial/ethnic group underperforming by more than 20 percentage points.

The validity of these results are supported through our use of t-test statistical analysis and a regression analysis. Under the Civil Rights Act, a difference of 20% would be evidence of adverse impact creating a cause of action. As White examinees do not pass at a 100% rate, a 20 percentage point difference easily meets this requirement. Historically, this kind of difference in the bar examination was attributed to differences in the entering credentials of the various races—implying that examinees from Communities of Color are less well qualified than White examinees.

Our results demonstrate that this explanation is incorrect. Because our dataset is an intra-school (within the school) dataset, we are comparing the bar results of White examinees with examinees from Communities of Color who both have similar entering credentials and receive the same legal education. In that context, race should not be correlated with the bar passage rate—if differing credentials are the cause of the differing bar pass rates. But as we show, those differences in bar pass remain. It is time to act. Bar Examiners must re-examine the bar exam and determine how race is impeding its ability to properly measure an examinee’s competence. This need to act is all the more vital given the coming changes to the 2026 bar examination.

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