A terrible idea

On Friday, Sept. 13, the California State Bar informed law school deans that it wanted student volunteers to take an experimental bar exam in November that would not count and that those chosen would receive up to 40 points when they subsequently took the bar exam. This is a terrible idea. The Bar said that it is a proposal pending with the California Supreme Court. The Court should quickly reject this.

The context for this is that the California Bar has entered into a contract with Kaplan Exam Services for the company to provide multiple choice questions for the bar exam beginning in February 2025. No longer will California use the multiple-choice questions prepared by the National Conference of Bar Examiners. The new exam will be administered remotely, as well as in test locations. This choice by the Bar to shift to a proprietary company and to online administration is itself questionable, having been adopted with little input from the deans or from the public.

The Bar has announced that it is conducting an experimental bar exam, that it is calling Phase One, on Nov. 8, 2024. It has said that "[t]here are limited spots available for Phase One." In fact, the State Bar says that on its own it will reach out to some applicants, declaring "[s]ome applicants registered with the State Bar may receive an email inviting them to apply." The need for an experimental bar exam a few months before the February bar exam undermines confidence in the Bar's decision to use a propriety company and shift to online administration. Also, strangely, the Bar scheduled this for the same day as the Multistate Professional Responsibility Exam, which many third-year students will take then and which is required for admission to the California Bar.

To provide an incentive for students to participate in the experiment and to take it seriously, the Bar has said that it will provide up to 40 points to those chosen. The Bar said this in its message to law school deans and in an accompanying FAQ: "The State Bar's Committee of Bar Examiners has recommended to the Supreme Court that a bar exam score adjustment of up to 40 points be applied in 2025 for those who participate and perform well on the experimental exams. The purpose of the score adjustment is to ensure that participants are highly motivated to participate in the experiment in good faith and that the resulting data analysis will closely replicate an actual exam."

Forty points can make a huge difference on the bar exam. Without a doubt, it will mean that some will be deemed to pass the bar exam who otherwise would have failed. It is fundamentally unfair to provide some this advantage unless it is available to all. It means that there is sure to be a situation of two applicants for the bar with identical scores on the bar exam, but one will pass and the other fail because the former participated in the experiment and the other did not.

But giving extra points for participating in the experiment also is inconsistent with the very rationale for having a bar exam. The justification for the bar exam is that it measures minimum competency to practice law. Although it certainly is questionable whether the bar exam actually measures this, that is its reason for existence. Those who fail are deemed not qualified for a license to practice law. It makes no sense to say that some individuals who failed the bar, according to the State Bar's standard of competency, are deemed qualified because they helped the State Bar by participating in an experiment.

Of course, the State Bar should be able to give incentives if it needs to have an experimental bar exam and it needs volunteers. It can provide gift cards or a reduction in fees for the bar exam or a lessening in bar dues for those who participate. But giving points when the applicant takes the bar exam makes no sense. The FAQ says that the Bar did this in 1980 when it was experimenting with a performance test. It was a bad idea then and not one that should be repeated now.

The Bar also is sending exactly the wrong message to law students. The State Bar's FAQ says: "Applicants should continue to study and prepare as they would for the California Bar Examination." The experimental bar exam is being administered in the middle of Fall semester classes. The Bar is essentially telling students to spend their time in the semester engaged in bar study rather than focusing on their courses, their law school clinics, and their pro bono work. It is stunning that the Bar would schedule something in the middle of the semester without any consultation with law school deans.

Thankfully, this is not a done deal. The Bar says that it is a proposal to the California Supreme Court. Hopefully, the Court will have the good sense to reject this. I have no doubt that the California Bar is acting out of good intentions in wanting to have an experimental bar exam and wanting to encourage students to take it. But however it is done, it is just wrong to offer those who participate extra points when they take the bar exam for helping the State Bar.