As The Percentage Of Accommodated Students In A Law School Increases, Its First-Time Bar Pass Rate Decreases

Scott Devito (Jacksonville; Google Scholar), The Kids Are Definitely Not All Right: An Empirical Study Establishing a Statistically Significant Negative Relationship between Receiving Accommodations in Law School and Passing the Bar Exam, 102 Or. L. Rev. 1 (2023): 

Throughout my career as a law professor and a law school dean, I have had a deep interest in the science of learning, academic support programs, and law school bar passage programming. Because of this, I have noticed that certain categories of students underperformed their peers on the bar examination. For example, students of color who (based on my interactions with them and their law school grades) should have passed the bar exam on their first attempt did not, while comparable White students did. To investigate this phenomenon, my colleagues, Dr. Erin Lain and Dr. Kelsey Hample, and I engaged in two empirical analyses that unequivocally show that the bar examination produces racially biased outcomes (students of color fail at a much higher rate than their White peers) [Examining the Bar Exam: An Empirical Analysis of Racial Bias in the Uniform Bar Examination, 55 U. Mich. J. L. Reform 597 (2022); Onerous Disabilities and Burdens: An Empirical Study of the Bar Examination’s Disparate Impact on Applicants from Communities of Color, 44 Pace L. Rev. (2023). Our most recent study also puts to bed the notion that these differences are due to differing credentials between examinees of color and White examinees. That notion is not true because the difference in outcomes is due to something in the exam or the exam process, not differences among the students.

Similarly, I have noticed that students who received accommodations at law school underperformed their unaccommodated peers on the bar examination. ...

Unfortunately, there has been no publicly available data on the relationship between accommodations and bar passage rates. As a result, there have also been no published empirical studies of their relationship. Fortunately, the American Bar Association (ABA) has begun requiring law schools to report the number of students who receive accommodations of any type during the reporting year. As a result, anyone can request that data from public law schools through public records requests.

Using data gathered from sixty public law schools relating to the years 2019, 2020, and 2021, this Article demonstrates that there is a statistically significant negative correlation between the percentage of students in a school who receive accommodations and the school’s first-time bar passage rate. In other words, this study shows that as the percentage of accommodated students in a law school increased, its bar passage rate decreased. 

This Article establishes a prima facie case that something is wrong with the accommodation granting process and argues that state board of bar examiners should provide more data and transparency on examinee accommodations. This Article begins with a short grounding in disability law as it relates to standardized testing. Next, this Article examines the exclusionary history of the bar admission process. A process that has long been used to exclude “the other,” whether they are people of color, women, people with disabilities, or the neurodivergent. With this background in hand, this Article provides the results of its empirical analysis of accommodation data demonstrating a statistically significant, negative correlation between first-time bar passage rates and the percentage of students receiving accommodations at law school. Finally, the Article ends with a discussion of how we should proceed given this result.

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