Overcoming Perceived and Real Bias in the Bar Exam

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The challenge of staying in a "Yes I Can" mode is especially daunting for minority candidates. Throughout law school, they hear about low minority pass rates and witness bar exam failures of their classmates.

Overcoming Perceived and Real Bias in the Bar Exam

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Coupled with the general disaffirming portrayals of minorities found in law school and elsewhere, many students of color begin to believe, as early as first year of law school, that they will not pass the bar. In too many instances, this self-defeatism becomes self-fulfilling. They believe that they cannot pass so they do not pass. Thus, if any persons are in need of the "Yes I Can" attitude it may be these students.

We take the time here to explore the added concerns and challenges which some of these students may experience as they work to develop the more productive attitude they will need to prepare for and pass the bar exam. Because self-defeatism, however, is an equal opportunity attitude—not exclusive to students of color—I urge all people to continue reading this article. It holds relevance for women, the physically challenged, economically disadvantaged, the first generation professional, the orthodox, the older, or the gay or lesbian candidate for the bar. In effect, any person who has been challenged by real or perceived roadblocks in their lives, often brought on by forces beyond their control (like being from a dysfunctional family), may find solace and direction in the succeeding pages.

Today's "Special"

Rasheeda J. Rasheeda, an African-American woman, was a first generation high school, college and law school graduate and the "star" of her immediate and extended family. Any reference to race, ethnicity, gender or culture is an intentional effort to raise important issues. grandparents, aunts, cousins, and siblings. She was identified early in life as someone who was "special" Her family could not be prouder of her accomplishments and because of her "specialness," Rasheeda was looked up to and sometimes envied by family members.

In school she was identified as "gifted" and placed in special programs. In elementary school, she was placed in "IGC" classes for the "intellectually gifted child " In intermediate school, she was placed in the "S.P." (special progress) classes and allowed to skip a grade, and in high school, she was in the "honors" program. Because of these placements, Rasheeda was elevated in status by school administrators and teachers and often envied by other students. As a result of her enriched education, Rasheeda was articulate, well read and quite "cultured "

Although Rasheeda was an "A" student, her SAT scores were lower than she needed to gain direct admission into the Ivy League College of her choice. She did get admitted, however, under the college's "special" admissions program. Her college grades were good, but again, her scores on the LSAT were too low to get her into the Ivy League Law School of her choice. She did get into a good law school, though not Ivy, through its "special" admissions program.

Although debate still rages over special admissions programs (programs which seek to increase numbers of minority and/or disadvantaged law students), there can be little argument that the specialness of these later programs is not the specialness of Rasheeda's early education. There was a time in education when special was understood (rightly or wrongly) to mean better than; when special programs or s.p. (special progress) classes involved curricula designed to enrich and enhance the innate abilities of the student. The specialness then was a validation of the person as a whole. The programs were designed to bring out what the student had within.

Special has now come to mean (rightly or wrongly) less good, e.g., special education. This specialness means that the student is needy or lacking and that the missing piece(s) is to be found outside of the individual. As such, today's special programs are often viewed as stigmas, as evidence that the students could not make it on their own.

During Rasheeda's educational career, she went from being special and seen as better than, to being special and considered less good. And this later specialness was most pronounced in law school because, for the first time in her life, Rasheeda was not a star.

Rasheeda called me to follow-up on a statement that I had made at a lecture. She wanted to know what I meant when I said, "Assume the bar exam is biased." Without knowing it, Rasheeda wanted me to confirm her suspicions and thereby validate her actions.

I had often seen the mix of emotions experienced by Rasheeda. Students are afraid that they will fail and find it more comforting to ascribe that failure to something beyond their control, in this case bias. And they encourage themselves, when and if they do fail, to believe that it was because of what was beyond their control—bias. As a result, many students will not develop the positive attitude needed to believe themselves capable of passing; nor will they design an effective study schedule and develop the discipline to stick to it. They conclude, "Why bother? The exam is biased." They do not study, they fail the exam and the self-fulfilling prophecy comes to pass.

There are things in life that we can control and those we cannot. At this point in her life, Rasheeda could no more control any of the institutional biases she may have been facing than she could control the stereotypical thinking of others as to her specialness. She could control, however, the way in which she responded to them. Unfortunately, her response had set the stage for failure.

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'Nothing herein should be viewed as a condemnation of "special" programs, for the author is a proud product of a number of them. middle of the debate on the fairness and efficacy of "special admissions" programs. She tried to stay out of this fray, as she worked hard, determined to make law review.

Despite her efforts, her first semester grades were the lowest grades she had ever received in her life. In an effort to find out what happened, Rasheeda talked with her friends, many of whom were minority group members who drew together to give each other comfort, only to find out that their grades were as low, if not lower than hers.

She spoke to professors and advisors; but still she couldn 't figure out what she was doing wrong. She worked hard and put in long hours; briefed every case and answered the questions in the notes which followed and in the hand-outs. Yet, things did not improve. No matter how well she thought she wrote, Rasheeda's legal memoranda needed major revisions. Regardless of how well spoken she was most of the time, when Rasheeda was called upon in class, she could not seem to get the right words out. And no matter how hard she studied, her grades remained the same—low.

Since nothing she tried seemed to improve matters, Rasheeda began to wonder whether there was "some-thing" at work that was beyond her control. Upperclass students told her it was racism and no matter how hard she studied she would get the same grades. It had happened to them.

Slowly, but surely, she began spending more time on other matters, such as the minority students association, even though the frictions existing in that group were tire-some. She took a job in the second year and her life took on a new and much more demanding dimension, when her boyfriend wanted more "quality time."

As she approached third year, she began to pay closer attention to the stories of how and why people of color were failing the bar and less attention to those third year courses which are tested on the exam. Her doubts about her ability to pass grew as she heard of the failure of other people of color who everyone thought would pass. She ever so slowly started turning her would-be productive energies into "No, I Can't" laments.

Is the Bar Exam Biased?

Treat this question like one found on the Multistate. The possible choices for the best answer are:
  • Not at all
  • Probably not
  • More than likely
  • Totally
True to the general MBE pattern, two choices can be easily eliminated. You can easily eliminate A) because it would be reasonable to conclude that, to a certain extent, everything is a product of culture, and that cultural biases are bound to be expressed consciously or unconsciously, overtly or covertly in whatever the endeavor. This proposition, as it relates to the bar exam, is supported by the seminal study conducted by the National Commission on Testing and Public Policy. In its report, "From Gatekeeper to Gateway: Transforming Testing in America" (1990), the Commission found that:

No test can be wholly free from cultural bias, for as products of culture tests are permeated with cultural implications in both form and content. We must stop pretending that any single standard test can illuminate equally well the talents and help promote the learning of people from dramatically different backgrounds.

You can also quickly eliminate D), that the exam is totally biased, because the bar is not like the old poll test which many states imposed to keep Blacks from voting. These tests, like determining the number of jelly beans in ajar, were not passable because they were arbitrarily imposed and capriciously graded.

Conversely, Blacks and other disadvantaged people have been passing the bar exam since its inception and continue to do so in numbers that would belie the existence of a totally biased exam.

Now you are left with B) and C) from which to choose the best answer. To do so, choose the "worst case scenario." In so doing, you give yourself more to talk about, more options from which to choose and you lessen the possibility that you have chosen incorrectly. In the context of whether the bar exam is biased, if you chose B), that the exam is probably not biased, then further discussion is foreclosed, along with the option of taking prophylactic or corrective action, just in case you are wrong. If you chose C), that the exam is more than likely biased, then you reach a result that will allow you to take the action you need to overcome: You work harder; at the appropriate time, you may choose to engage in collective activity; and you turn the disadvantage into an advantage.

Here, the missing fact or information is the evidence or proof of bias or the lack thereof. Surprisingly, there have been relatively few studies of minority performance on the bar exam. Of the existing studies, there is agreement that there is a disparity between minority and White performance. There is substantial disagreement as to the reason. Studies of the California exam identify LSAT scores and GPAs as the predictors of success on the exam, not race, gender or ethnicity. Experts studying the Florida exam disagree. In support of their argument, they cite those studies which find that the LSAT scores themselves are biased measures, hi addition, they found that the linguistic and culturally-specific fact patterns of the exam account for some of the disparity.

In 1974, a group of black lawyers petitioned the New York Court of Appeals to appoint a commission to study the bar exam. They argued that the exam violated the 14th Amendment because it had a discriminatory impact on black candidates and could not be shown to be "job-related." The Court did some tinkering but denied the request. In 1988, the Chief Judge appointed the New York State Judicial Commission on Minorities, chaired by the late Ambassador Franklin H. Williams, which reviewed the pass rates of law graduates of color on the bar exam. Because its preliminary analysis showed significant disparities among the racial groups, in 1990, the Commission called for a more comprehensive review of the exam for bias. That review is now being conducted by the Law School Admissions Council which has undertaken a nationwide study of minority performance on the bar exam.

Advantage: Yours

Milagros L.

Milagros was an ideal student to tutor. She was responsive to my critique. She worked hard and completed her assignments on time. She came from a very proud Mexican-American family, who prayed for the first lawyer in the family to pass the bar exam. Milagros, however, did not seem to be as proud of her family as they were of her, given the way she spoke of them.

To our surprise, Milagros failed the exam. Upon review of her paper, she discovered, with amazement, that she had written some of her essay answers in Spanish.

The obvious and easy lesson for Milagros was the importance of rereading her answers, and managing her stress. But the harder and not-so-obvious lesson was that she needed to look at the reasons why she was putting down her family, her culture and ethnicity. Milagros could run from who and what she was, but, as her exam answer showed, she could not hide from it. Her energies would have been better expended in embracing her ethnicity and turning her negative energy into a positive force; the type of force needed to pass an exam, raise a family or change a country. In effect, Milagros needed to turn her perceived disadvantage into an advantage.

There are many examples of this type of conversion throughout our history. For the longest time in our country, one of the worst things you could call an African-American was black. To be black was to be bad. But the political and cultural awareness and pride brought on by the political upheaval of the 1960s changed that. That shifting produced monumental change in our society, spurred on a movement, and released a spirit in a people and a country which is still felt to this day.
For some of us, knowing our history will help us to understand our place in it and gain the necessary appreciation of it. To know that history is to acknowledge that we still live in an era of firsts in the law and in our society—the first African-American Governor since Reconstruction; the first Puerto Rican Congresswoman; the first elected Asian-American judge in New York State; the first American Indian Senator; the first openly-lesbian Federal District Court Judge. We further need to appreciate that the firsts in the law come after mere decades of acceptance as full-fledged members of the Bar.


Ben's parents immigrated to the United States from China when he was six years old. He was one of my students in the Supplemental Bar Review Program described earlier. During the first few sessions, it became clear to me that Ben was feeling uncomfortable. He was the only Asian-American in a group of Blacks, Hispanics and two Whites. At our second individual session, I asked Ben about his apparent discomfort Although he denied it, he did mention that he was not getting much out of the lectures and that his practice exams answers were consistently low.

Ben's low performance continued. With the exam approaching in less than a month's time, I confronted him: was he uncomfortable about being the only Asian-American in the course? He finally admitted that he did not like being there because everyone thought that Asian-Americans were "smart." And here he was in a program for people with "special" needs.

Many of us feel the need to single-handedly dispel stereotypes of us or our people or to live up to someone else's expectations, no matter how unrealistic. This is especially true for first generation college or law school graduates, no matter what their race, religion, gender or sexual orientation. To many of them, everything they do is a reflection on their race or group. They have the need to be the model minority (as in Ben's case) or a credit to the race.

It is not easy for some to let go of a group identity or those aspects of it that can cause them to become dysfunctional. There's a feeling of loss and betrayal. But you have to be who you are, not who others think you should be. To do otherwise is to work against yourself and you don't have time for that, especially during the bar preparation period. Ben realized that his discomfort stemmed from his feeling that he had failed in not living up to the model minority stereotype and that his participation in a group of students who were ostensibly in need of special attention was evidence of his failure. What he did not realize was that his discomfort inhibited his interaction with the other students (some of whom had much to offer him) and diverted his attention from the information being shared. What a waste!

The " Yes, I Can " attitude speaks directly to those who are first generation. Like so many of them, Ben focused more on the stigmatizing aspects of being first generation, than on those aspects of this status that were affirming and optimistic. To shift his focus, we looked at all he had accomplished despite the perceived disadvantages and we looked at all his family had accomplished despite their humble circumstances. We then looked at how similar the other students were to him in their accomplishments and in their goals. While Ben didn't have an epiphany, he did attain a greater appreciation of what it meant to be first generation. He realized that reaching one of the pinnacles in this society, becoming a lawyer, indicated a reservoir of determination, a collective "Yes, I Can" attitude, and commitment from which he could draw strength. Armed with this knowledge, Ben realized something else—his goal of passing the bar exam.

So, yes, I tell students to assume the exam is biased. I also tell them not to waste another moment on the question. Although you may have tapped new sources of energy with your "Yes I Can" outlook, neither your time nor your energy is boundless. And with the exam fast approaching there are only two available options. Take it, or don't take it.

You take it, of course, if for no other reason than you have paid your money for the bar review course, possibly relocated to the test state and have begun readying yourself for the challenge. And, you are not ready for your spouses, families and banks (to whom you owe thousands in student loans) to come after you with a vengeance if you cop out.

But there's another reason to take it. You take it because you have not made it this far without knowing how to overcome the challenges of bias. You made it through first year despite your low LSAT scores. You finished exams despite being blind and needing a reader. You made the moot court team despite having English as a second language. You graduated law school despite an absentee father or a substance-addicted mother. You take it because you've come too far to let anyone or anything turn you around.

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