RACIAL DISPARITIES IN BAR EXAMINATION PERFORMANCE:

AN HYPOTHESIS




by



John Pierre*
Russell L. Jones*
Earnest S. Easterly*
and
M. R. Franks*













This article appeared in the February 1993 issue of Louisiana Bar Journal, the oficial publication of the Louisiana State Bar Association. It may be cited as John Pierre et al., Racial Disparities in Bar Examination Performance: An Hypothesis, 40 Louisiana Bar Journal 483 (February 1993).


Copyright © 1993, Louisiana State Bar Association











*About the Authors . . .

John Pierre, assistant professor of law at Southern University, Baton Rouge, holds his Masters degree in tax accounting from Southern Methodist University.

Russell L. Jones, associate professor of law at Southern University, holds his Bachelor of Arts degree from Northeast Louisiana State University, his Juris Doctor degree from Southern University and his LL.M. from Georgetown University.

Earnest S. Easterly, assistant professor of law at Southern University, holds his Bachelor of Arts, Juris Doctor and Ph.D. degrees from Louisiana State University and a Diploma in advanced studies in international law from the University of Salzburg.

M. R. Franks, assistant professor of law at Southern University, holds his Bachelor of Science and Juris Doctor degrees from Memphis State University.









Introduction


A black youngster asks his mother, "If a third of Louisiana is black, why are most of the doctors, lawyers and other important people white?" The very day a child asks that question, he begins for the first of many times in life to ponder whether hard work and study will ever really pay off for him. The child has just been told, in powerful terms, that the American dream is simply not for him. Small wonder if he begins to tune out on society.

Crime, drugs and unemployment are all on the rise. America is failing to compete successfully with Japan and now faces new competition from a "United States of Europe" with a present population of 375 million, which may grow to over 500 million when Eastern European countries join the European Community or the European Free Trade Association. As the United States loses its world markets in one field after another -- garments, electronics, automobiles -- jobs quietly disappear at home one by one, while the dollar declines even further.

And how can one even expect the United States to compete successfully in the world when large percentages of its population are alienated, unmotivated in school, and less than optimally utilized in the work force?

A message that blacks indeed can "make it" in the professions would go a long way towards increasing pride and improving job performance even of the black bus driver or factory worker who himself knows he will never qualify for a profession. Prosperity occurs in a country only where men and women enjoy freedom, hope and a sense of equality -- and when all segments of society have an incentive to pull the nation's economic wagon in unison. These qualities are sorely lacking in America today, and our national harvest is one of crime, drugs, unemployment and economic depression. Indeed, the South has for decades been at the economic bottom and the criminal top of the country's statistics, and only those Southern cities and states that have taken aggressive steps to overcome prejudice have risen from the economic mire.

These very same concerns perhaps troubled a farsighted reconstruction Congress, for in 1890 the Morrill Act was amended to provide for the creation of black land-grant colleges in the several states to meet the needs of blacks for higher education. Today, there remains only one historically black land-grant law school: Southern University in Louisiana. The mission of this school now more than ever is to meet the educational needs of children of rural and industrial backgrounds, today on a nondiscriminatory basis.

North Carolina Central University and Texas Southern University, while not land-grant institutions, are the only other state-supported historically black law schools in the United States. Howard University, a private institution, brings to four the number of predominantly black law schools in the United States.

In Louisiana, where Southern University is located, 30.8 percent of the population is black.1 However, only a small percentage of the lawyers are black. Of the relatively few black lawyers in the state, about 80 percent graduated from Southern University's law school. Southern's law student population today emulates the demographics of the state more closely than that of any of the state's three other law schools.2 The supportive environment at Southern represents the black college graduate's best hope of admission to and graduation from law school in Louisiana.

Those overtly or covertly opposed to true integration of the legal profession charge that Southern University provides "inferior" legal educations. These critics cite the fact that Southern graduates fare poorly on state bar examinations.

Persons who have dedicated their careers to integration of the legal profession are obviously remiss, it is said. In the hysteria, there is a danger that scapegoats will be made of those very persons doing the most within the legal profession to bring the demographics of the profession in line with the demographics of the United States.

At first blush, the statistics in Louisiana look appalling. At Southern University in Louisiana, during the past three years only 101 out of 277 applicants, or 36.46 percent, unconditionally passed on first attempt the July 1989, 1990 and 1991 Louisiana bar examinations. The state's three other law schools fared much better on those examinations:

Louisiana State University (LSU) passed 81.95 percent;

Tulane University passed 66.64 percent; and

Loyola University came in at 66.19 percent.

Southern University is Louisiana's only historically black law school. These bar results, it is implied, are "proof" of Southern's inferiority. But the raw data given on the six o'clock news ignore the fact that the vast majority of Southern's graduates -- 83.5 percent -- ultimately are admitted to the bar after repeating the bar examination one or more times.3

The Louisiana bar examination comprises nine subjects, five of which are on the Louisiana codes and four of which are on other subjects. Applicants pass the bar examination by passing seven of the nine subjects, including four of the five code subjects. Applicants who pass five separate subjects but who fail two or more code subjects, or any combination of code and non-code subjects totalling at least three but not more than four, are said to "conditionally fail." These applicants are required to repeat and pass only the missed subjects on a subsequent bar examination.

When Southern's bar passage statistics are broken down by race, certain patterns emerge as reflected in Table 1. The figures show that 51.54 percent of Southern's white graduates passed on first attempt during the relevant period. For black applicants, only 19.91 percent passed. It can be seen that the bar passage rate for whites at Southern is not appreciably lower than that for students at Loyola, Tulane and LSU. When it is considered that LSU, Loyola and Tulane attract a higher percentage of students, white and black, from affluent professional families, the small differential in the performance of Southern's white students is not surprising.

Loyola, Tulane and LSU's overall bar passage rate, for white and black students combined, may appear better than Southern's primarily because those schools are predominantly white. The relatively fewer blacks attending those schools are statistically less significant in the overall bar passage pictures at those schools than at Southern, where blacks comprise 53.6 percent of the law school's student body.

To blame Southern for its poor bar passage rate, post hoc ergo propter hoc, with no more evidence, is to blame Southern for having admitted too many blacks!

The grave question remains, however, why blacks fare poorly on the Louisiana bar examination, whether they be graduates of Southern or of any other law school that treats black students fairly.4 The racial disparity is a problem national in scope, albeit less visible at predominantly white law schools. In 1988, 65 percent of whites taking the California bar examination received passing scores, while only 9 percent of blacks were successful.5 One writer, a former Wisconsin bar examiner, notes of law schools outside Louisiana:

. . . I have been able to determine that for some recent bar examinations, zero out of eleven minority graduates of a particular law school passed the local bar; at another school, three out of thirty-nine passed; and at yet another school, zero out of eight passed the local bar. The schools involved are among the "better" law schools and, in fact, two of these three schools, in all likelihood would, by consensus, be ranked in the top thirty of American law schools.6

The true challenge in Louisiana and elsewhere is to remedy the racial disparity of bar examination results nationwide. Simplistic accusations shed little light upon the subject. To correct the problem, it first will be necessary to understand its causes. This article explores some hypotheses with a view to narrowing the search for the causes of the problem and resuming intelligent, constructive dialogue directed towards a remedy.

Tables 2, 3, 4 and 5 compare the bar performance of white and black Southern graduates with similar grade point averages (GPAs). One might expect black students, who tend to come from less affluent rural and central-city backgrounds and perhaps from substandard elementary- and secondary-school educations, to fare less well in law school than their white counterparts. But Tables 2 through 5 do not compare students' performance in law school.

It is important to appreciate that Tables 2 through 5 are not a comparison of bar passage rates for Southern's black graduates versus bar passage rates for Southern's white graduates. Rather, Tthese tables look at Southern's bar passage rates by cumulative GPA and race, comparing B-plus whites only with B-plus blacks, C-plus whites only with C-plus blacks, and so forth. Accordingly, these tables compare bar passage rates for proven achievers of comparable law-school class standing, under circumstances where the only measurable difference between each paired group is the melanin content of their epidermis.

Cultural factors that affected law school performance have thus been factored out of Tables 2, 3, 4 and 5.

Certain hypotheses may now be considered in an effort to account for the poorer bar examination performance of blacks generally, and even of blacks when compared with whites of similar academic achievement. The writers' hypothesis that the bar examination itself is racially discriminatory will be discussed last.



Hypothesis One: Black Law Schools Offer Inferior Educations


The simplistic cry heard most often in Louisiana is that Southern University offers "inferior" legal educations. This view was even voiced by one federal appellate judge,7 proving only that even the courts are not immune to the fallacy of post hoc reasoning.

Yet 63.46 percent of Southern's white law students passed the July 1991 Louisiana bar examination unconditionally on the first try, comparing favorably with Loyola's overall rate of 65.20 percent. The relatively small difference between the two schools can be explained by Loyola's more cosmopolitan (and presumably more sophisticated) student population, including a "carriage trade" element less predominant at Southern University. If the legal educations offered at Southern were inadequate, one would not expect Southern's white graduates to fare almost as well as Loyola's graduates.



Hypothesis Two: Southern discriminates against black students.


This second hypothesis posits that professors at Southern discriminate against black students. To state the proposition is to reveal its fragility. If the suggestion means that white students are given better grades than black students for less work, then one would expect the more leniently graded whites would fare less well on bar examinations than their more rigorously graded black counterparts. Tables 2, 3, 4 and 5 flatly refute this.



Hypothesis Three: Cultural differences account for the disparity.


This hypothesis posits that cultural differences account for the disparity in bar results. It is true that cultural differences well may account for poorer law school performance of blacks generally.

One writer considers not only motivation and self esteem, but also debt, and asks whether students who must borrow more heavily to attend law school also must work more hours for pay during law school.8 One black law student at Georgetown commented that it is easier for her white classmates to learn about trusts since most of them have trusts.9

But while cultural differences may account for poorer performance in law school, they cannot account for the poorer performance on the Louisiana bar examination of blacks of equal academic standing with their white control groups.

Ominously, this particular disparity may be unique to or exacerbated in Louisiana. Howard University, in a study of its law school graduates, found LSAT scores and law school performance the two strongest predictors of bar passage.10 Comparisons in other states of the bar performance of blacks with the bar performance of whites of equal academic standing would reveal whether this particular disparity is unique to Louisiana.


Hypothesis Four: The Louisiana bar examination itself is discriminatory.


Blacks at Southern University learn in the same classrooms as whites, are taught by the same professors, take the same courses, study the same books, and take the same final examinations -- which examinations incidentally are graded anonymously. When proven equal performers of different races do not fare equally well on the state bar examination, suspicions are aroused.

Black Southern law graduates with a B-plus grade point average (3.50 to 4.00) have the same chance as whites of passing the Louisiana bar examination on first attempt: 100 percent. But black graduates with a B average (3.00 through 3.49) have only a 51.78 percent chance of passing, whereas whites with the same GPA have a 79.14 percent chance of passing. Blacks with a C-plus average (2.50 through 2.99) have a 21.14 percent chance of passing, while whites with the same GPA have a 35.56 per cent chance. Blacks with a C average (2.00 through 2.49) have a zero percent chance of passing, whereas whites in that category have a 15.48 percent chance. If you're black, apparently you just have to be better to have the same chance of passing.

It would be absurd and irresponsible to charge that bar examination administrators secretly mark examinees' papers or collect and stack them by race, or that ethical bar examiners and volunteer graders consciously would ever violate the mandate of the equal protection clause of the United States Constitution to treat all applicants fairly and equally without regard to race.

It is not absurd, however, to question whether unconscious factors enter into and contaminate the grading process.

The Louisiana bar examination is a three-day exercise in essay writing, and stands in sharp contrast to the objectivity of multiple-choice bar examinations such as the Multistate Bar Examination (MBE) used in 46 states.11

Essay type examinations are susceptible to corruption from extraneous influences. In one famous study in San Diego, 80 elementary school teachers were each asked to grade eight papers of supposedly equal quality. The only variables were the names of the students attached to the papers. "Michael" and "David" averaged a full grade higher than "Elmer" and "Hubert." "Karen" and "Lisa" each did a grade and a half better than "Bertha."12

This study was conducted not in Louisiana but in California, a state not noted for racist attitudes. And the papers in question were graded by professional teachers trained to ignore extraneous irrelevancies such as the student's name, not by unpaid volunteers from outside the field of education. And still it made a significant difference in the grade assigned that the paper was supposedly written by a child with a "red-blooded, all-American" name as opposed to a "wimp" or "unpopular" name.

The FBI's Behavioral Science Unit knows that much about a person can be learned from the person's writing style. The agency has done remarkable work on the process of profiling a writer from a sample of his writing alone, and has taken this normally subconscious process out of the subconscious and into consciousness. Given only a written threat or ransom note, the FBI now is often able to determine from syntax alone not only the probable race, sex and age of the writer, but also the probable occupation of the writer! The FBI is working to computerize the analytic process.13

But the best computer for the job may still be the subconscious human mind. Most everyone has had the experience of reading an item -- say an article in a journal -- and without any effort subconsciously forming a mental image of the looks of the writer. The reader's mental image is usually correct as to race, sex and approximate age. But surprisingly, the reader's mental picture of the writer is often uncannily accurate as to physique and facial features as well. Evidently choice of words, grammar and syntax convey far, far more information about a writer than most would at first blush suspect. It must be noted that the reader's mental image forms subconsciously, that is without any conscious effort on the part of the reader to visualize the writer.

One must ask, therefore, whether it is possible, given the essay format of the test, for bar examiners unconsciously to pick up on the race of the writer from his or her usage, syntax, grammar and word choice?14 And is it possible that these examiners, again unconsciously, would allow their lower expectations of a particular writer to influence their assessment, much as the San Diego teachers' lower expectations of a "Hubert" affected their assessment of "Hubert's" performance? Is it significant that of the 10 members of the Louisiana Committee on Bar Admissions, alumni of all law schools in the state are represented except Southern University?

Concerns about the impartiality, sensitivity and good judgment of Louisiana's non-objective bar examination were heightened when a question on the July 1988 bar examination asked:

For extra points [2%], what law school did the preparer of this question attend? (Note: this is a lob.)15

Evidently the bar examiners themselves agree that one's identity can be ascertained solely by one's writing style.

Confidence in the impartiality of the Louisiana bar examination needs to be restored. Louisiana's unique French legal heritage surely justifies this state in not rushing to adopt the same common-law-based test used in 46 states. But surely an independent educational testing service, such as the one that prepares the Multistate Bar Examination successfully used in most other states, could design an objective bar examination format for Louisiana that not only would be impartial but would avoid even the appearance of partiality.

For those who would object to the objective bar examination format for Louisiana, it is noteworthy that Louisiana does use the Multistate Professional Responsibility Exam (MPRE) as part of the bar admissions process. The MPRE is an objective examination taken by Louisiana bar applicants in lieu of an essay-format ethics examination.

In light of concerns about the impartiality, sensitivity and good judgment about the bar examination process, it would be worthwhile for Louisiana to consider allowing examinees a post-examination right to review their own exams. It is certainly conceivable that errors may occur in determining which examinees pass or fail the Louisiana bar examination.

The true challenge in Louisiana is to assert a leadership role in making efforts to remedy the racial disparity in bar examination performance. The writers hope that members of the greatest profession in Louisiana will develop an intelligent and constructive dialogue directed towards a remedy.

Rome literally is burning, and precious little time remains in which to reverse America's decline. Nero is still fiddling.



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Copyright 2002 by M. R. Franks - ALL RIGHTS RESERVED