Rantz: Supreme Court declares Washington state bar exam racist because … equity

Mar 19, 2024, 5:55 PM | Updated: Mar 20, 2024, 11:16 am

bar exam racist...

Attorneys walk up the steps of the Washington Supreme Court building, the Temple of Justice, in Olympia, Wash. (Photo: Ted S. Warren, AP)

(Photo: Ted S. Warren, AP)

The Washington State Supreme Court decided the bar exam is no longer required to become a lawyer in the state. Their reason? The bar exam is racist, which they say “disproportionately and unnecessarily blocks historically marginalized groups from entering the practice of law.”

At the height of the extremist Black Lives Matter movement, the court-appointed the Bar Licensure Task Force to provide alternative ways to earn a law license. As they were trained to do, they found the Washington State bar exam “disproportionally and unnecessarily blocks” marginalized groups from becoming attorneys. They claimed the exam is, “at best minimally effective” at ensuring a client is competently represented in court.

Accepting the recommendation to ditch the mandatory bar exam, the Supreme Court accepted new alternative ways to become a lawyer in the state. But the process to get to this point is important. The viewpoints of task force members, along with their conclusions, are as radical as you would imagine. And this move does a disservice to the very clients the court says it wants to help the most.

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How is the Washington State bar exam racist?

Task force members declared the bar exam racist and classist because of how it’s written and the impact they think it has on who becomes a lawyer. They criticize the entire process of becoming a lawyer as a “dam, rather hastily built … that holds back more water than it should.”

“The bar exam … is a way to regulate the profession and it keeps going back to an intention to exclude historically excluded groups,” Matt Audish said during a July 2021 task force meeting, appearing to cite research.

Audish went on to claim that the “bar exam generally measures privilege more so than the competency to study law” because it’s easy for wealthy people to take time off of work to study for it.

The task force concluded in their summary findings that the bar exam costs and time to study “reinforce historical inequities in our profession.”

Even though they declare the bar exam racist, they do not think it should be abandoned. Instead, it can be offered as an option, though they do think it should be easier to pass. They recommend cutting the minimum cut score to pass down to 266 because the average test scores are 267.

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It’s not the bar exam that’s racist. ‘Morality’ and ‘Professionalism’ lead to racism

To be admitted to the bar, one must show high moral character and fitness, in addition to passing the bar exam. But the task force members think this has a “detrimental impact … on vulnerable communities.”

Focusing on “morality” and “professionalism,” they argue, are “often euphemisms for discrimination.” Task force members complain that “professionalism” is “recognized as a standard historically and arbitrarily defined by proximity to wealth, whiteness, and masculinity.” They imply that this standard is part of the “systems of oppressions plaguing the legal system.”

And criminals shouldn’t be automatically punished during the process. They recommended that if a would-be lawyer hasn’t committed a crime within five years, they should be allowed entry into the bar. They complain that “the criminal system is plagued by racism and discrimination that severely disadvantages already disenfranchised populations.”

Washington lawyers are too white and male

A major complaint of the task force members is that the legal community is not diverse enough. In other words: there are too many white (and male) lawyers. Increasing the diversity doesn’t just allow the creation of a more diverse field, but they seem to believe that it will provide more legal services access specifically to marginalized communities.

Riddhi Mukhopadhyay said she was “wanting to see better representation into the legal aide of new attorneys for the communities that they’re practicing in. I’m very interested in the equity considerations of this task force.” Echoing those concerns was Dolly Hunt, who said she represented prosecutors who are “concerned with equity in regards to new attorneys.”

Indeed, the task force complains that the Washington State Bar Association is 83% white and 56% male. This is proof, they believe, of racism and bias in the licensing process and “specifically the character and fitness inquiry.” Accepting the task force’s recommendations to ditch mandatory bar exam will lead to more diverse lawyers in the state, they contend.

This was always destined to be accepted

The Supreme Court convened the task force, but justices always knew the end result would be to ditch a mandatory bar exam requirement. That they called the bar exam racist is hardly surprising given the task force was informed by the Black Lives Matter worldview that systemic racism and oppressions exists in all our institutions. They went looking for a reason to call the bar exam racist, and that’s precisely what they found. But this isn’t some objective truth.

Whether or not the bar exam is mandated is less important than the reason why the state is ditching it. Attorney Mark Lamb is with Seattle-based law firm Carney Badley Spellman. On The Jason Rantz Show on KTTH, he called race-based criticism of the bar exam odd. Geography plays more of a role, he argues, in access to legal services. Rural areas have fewer attorneys, regardless of race.

“I’m not opposed to having alternative methods for people to seek admission to the practice of law,” Lamb said. “We already have ways that you can study under a lawyer and take classes, you can be a real-life intern or in law school. But I think the entire premise behind this is very odd. It seems to be something that … misidentifies the problem, and then applies an inappropriate solution to the problem that they sort of misdiagnosed in my view.”

The irony of the new reality: The Washington state bar exam no longer required

The impacts of their decision may not deliver the intended end results.

Lawyers who take the bar exam will likely have an advantage in finding work over those who seek alternative ways to be admitted to the bar. Because the task force and Supreme Court focused on race, it implies that students of color are not capable of achieving the skills to pass the exam, which is what every lawyer hiring associates had to do when they were studying to join the bar. The implication is racist, of course. But the task force sends the message that it’s truth. Why would someone hire a lawyer who they think isn’t bright enough to pass the bar exam when they can just as easily hire someone who did pass it?

As worrisome is that some would-be “lawyers of color” who skip the bar for apprenticeships, for example, may benefit from an easier path to becoming admitted to the bar. Seattle, especially, is full of progressives hoping to play the literal White Knight. They condescendingly believe blacks or Latinos deserve a shortcut to becoming a lawyer because of imaginary systemic oppression. If they’re given an easier path by a racist Progressive who doesn’t think they’re capable of doing more, they will not be as capable a lawyer as someone who worked harder and earned more real-life experience.

If it’s true that marginalized communities will have better access to legal services with more “lawyers of color,” they may be getting less qualified lawyers. This doesn’t really serve the lawyer or the client, and it’s precisely why it’s important to properly diagnose the problem of bar admittance, to the extent that it exists. Instead, they’re hyperfocused on racism that they’re inventing, and they may have put in place a new, substandard process.

Listen to The Jason Rantz Show on weekday afternoons from 3-6 p.m. on KTTH 770 AM (HD Radio 97.3 FM HD-Channel 3). Subscribe to the podcast here. Follow Jason on X, formerly known as TwitterInstagram and Facebook.

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Rantz: Supreme Court declares Washington state bar exam racist because … equity