Committee of Bar Examiners stand ready to act on February California Bar Exam and experiment

I am writing in response to the column published recently regarding the State Bar of California's experimental bar exam.

First, as the new chair of the Committee of Bar Examiners (Committee), I would like to take this opportunity to address certain public concerns regarding the California Bar Examination Experiment (Experiment).

The State Bar has engaged various stakeholders over the last 15 months as it transitions to a new multiple-choice vendor. This transition is a logical one because the National Conference of Bar Examiners (NCBE), the brain trust behind the Multistate Bar Examination (MBE), requires that the MBE be administered in person, which necessitates in-person testing of the California Bar Exam. This transition has been discussed and debated at over a dozen public meetings this year alone, including those of the Committee, the Law School Council, the Committee of State Bar Accredited and Registered Schools, and the Board of Trustees, as well as at the widely publicized stakeholder input forum held on April 16, 2024.   

In addition, an advisory group comprising members of the Committee, AccessLex, and California law school representatives collaborated to design a pilot experiment for the new bar exam, which was executed in October 2023 with input from over two dozen law schools and their deans. The State Bar also met with various law schools in January to discuss the Experiment, did a follow-up survey in February, and met and conferred again in April 2024. Based on those discussions, the Experiment was further modified and improved. Thus, the Experiment is not a fortuitous development but the direct result of a collective effort by the State Bar, the Committee, the stakeholders, and the public with shared goals and ideals.

Even more discussions are forthcoming. The California Supreme Court has requested that the Committee weigh in on the proposed bar exam vendor, exam administration modality, and proctor selection. As the Chair of the Committee, I promise we will be ready, willing and able to do at the upcoming meeting, which is open to the general public.  

Second, Kaplan was considered, in part, because of its existing ability to provide bar exam content, which it already offers as part of its commercial bar exam preparation services. This, in turn, provides the Committee with greater assurance that the new exam content will remain rigorous, and that it will continue to measure and assess minimum competence to practice law. Critically, Kaplan's substantial experience in developing bar exam materials provides the Committee with the additional confidence that a high-quality exam can be designed, developed and delivered by February 2025.

I find comfort that the new exam development is grounded on Kaplan's solid foundation of experience and strict adherence to industry best practices, including rigorous beta testing and content validation. This approach, coupled with the State Bar's four decades of expertise in developing and administering the First-Year Law Students' Examination, ensures a repeatable, reliable, and scalable process that maintains the bar exam's fundamental integrity and fairness. In doing so, all California bar exams will soon be administered remotely and in test centers--new modalities that applicants have informed me that they overwhelmingly prefer, particularly those who require special testing accommodations or do not live close to the State Bar's limited testing locations.

Lastly, the State Bar's grading adjustment proposal is meant to ensure that all participants will commit to making good faith efforts in the Experiment--a critical but often overlooked component in any exam development and test validation process. Offering gift cards or fee reductions, while logical, does not provide the Committee with such a guarantee. As laid out by the State Bar, the proposed grading adjustment is not absolute and, if approved, would inevitably come with strings attached--participants would only be eligible to receive a grading adjustment  if they meet a minimum threshold score on the Experiment in order to minimize any unintended and unfair advantage to those who would not otherwise be competent to practice law.

To that end, the Committee directed the State Bar at the August 2024 meeting to consider and explore financial incentives in addition to the proposed grading adjustment as another means to diversify and maximize participation, including by those who could be financially impacted as a result of their participation in the Experiment. Provided funding is available, the Committee will work with the State Bar on implementing these additional incentives.

For the curious, it is worth noting that the proposed grading adjustment is not "new," and the Committee simply follows precedent that was previously set in 1980. There, the Committee closely studied how best to narrow the bar passage rates between minority and majority candidates. As part of that study, the Committee conducted an extensive experiment that resulted in the implementation of the modern-day performance test, which has since been adopted by the NCBE and other jurisdictions. That experiment consisted of three parts, one of which was the "Assessment Center" that assimilated a clinical environment in which lawyers typically practiced. To encourage participation, the Committee proposed, and participants received, a grading adjustment on their California Bar Examination. The much-publicized success of that experiment was largely attributed to participation by then-applicants, with more than 4,330 applying and 500 chosen.  

As the saying goes, past performance is no guarantee of future results, but in my opinion, the best way to predict the future is to study the past. Here, the grading adjustment proposal is our best and proven means to developing a successful experiment, even if it is not guaranteed.

Finally, it is regrettable that the Experiment will be administered while law schools are still in session (and for some, on the same day as the MPRE). Considering the other alternative, which is to administer the Experiment during the Thanksgiving, Christmas, or even New Year's holiday break--a time traditionally reserved for family gatherings and celebrations there is simply no "perfect" timing for the Experiment. To minimize the Experiment's potential impact on participants' personal and familial obligations, the Committee considered only those dates that it believed (and still believes) to be least disruptive, restrictive and objectionable.  

Make no mistake, this Experiment we are about to embark on is unique and even unprecedented. And this is why we need your support. Change is hard but it is necessary as the Committee continues to explore ways to enhance our diverse and inclusive legal community.