State Bar Exam Tripping Blacks
AFTER THE PAPER CHASE
Failure Rate Of Law School Graduates Brings Up Troubling
February 5, 1989|By Ramsey Campbell of The Sentinel Staff
Eight of 10 law school graduates breeze through The Florida Bar examination on their first try,
making the test one of the easiest in the country to pass - at least for white graduates. But for many blacks the state's Bar exam is an impenetrable barrier to the legal profession.
While few states keep figures on how readily black law school graduates enter the legal profession,
Littlejohn said what little is known is alarming. In doing research for a forthcoming book, Lawyers of Color, Littlejohn and co-author Leonard Rubinowitz, a Northwestern University law professor, found:
- In 1972, all 41 blacks failed the Georgia Bar exam even though the group included graduates from such prestigious law schools as Harvard, Yale and Columbia.
- The passing rate for blacks who took the Alabama Bar exam is 20 percent compared to 70 percent
overall. In Ohio the passing rate for blacks ranged from 27 percent to 43 percent while the passing
rate for whites ranged from 75 percent to 88 percent.
- In Pennsylvania, a committee of the state Bar association concluded that black law school graduates were being discriminated against after discovering that the passing rate for blacks in the 1971 state Bar exam was 25 percent compared to an overall 81 percent.
In California, the first-time passing rates for white law school graduates is about 70 percent; for
blacks it is 35 percent, according to state Bar officials.
L. Orin Slagle, an FSU law professor, said, because a greater percentage of blacks are in the lower
quarter of law school classes, he would anticipate a lower first-time passing rate on The Florida Bar
exam. But Slagle noted that, although more blacks with substandard admission test scores enter law school, black graduates meet the same academic requirements as white graduates.
Rahim Reed, assistant dean for minority students at the UF law school, said, ''If you have two
students, one black and one white, and they both do well in law school, but one of them can't pass
the Bar exam or has to take it repeatedly . . . well, there's a problem. But without the statistics you'd never know there's a problem to begin with.''
Lawrence Mathews, chairman of the Florida Board of Bar Examiners, said it is tragic for law schools
to accept students with below-standard scores on admission tests and allow them to graduate without warning them of the odds against quick admission to the Bar. Mathews believes that minority students had more difficulty handling the psychological stress of taking the Bar exam. Programs in a few other states that address that stress, which some say is worsened with the knowledge that their failure rate is high, have shown some success improving passing rates.
Florida Bar President Rutledge Liles said he is surprised by the low passing rate for blacks and is at
a loss to explain it. Although Liles said he could quarrel with the scientific accuracy of the Sentinel's
survey, he said the Bar had no statistics of its own. ''All I know is that the test results have nothing to do with race,'' he said. ''They are graded anonymously, and it is the same test for everybody. ''I think we need more black lawyers. I'd like to know what the problem is,'' he added.
The Sentinel's survey was based on black graduates of the FSU and UF law schools. Their names
came from university computer printouts given to the Sentinel by members of black student
associations at the law schools, which use the lists to keep contact with alumni. Although association members said they believe that the lists are the most complete available of black graduates, they could not be certain that all names were included.
University officials refused to release names of graduates, citing student privacy laws.
Although Bar applicants also must pass a background examination, of 2,600 people who applied to
the Bar between October 1986 and September 1987, only 11 eventually were denied admittance for that reason. The Bar keeps no statistics on how many of the state's 45,000 lawyers are black.
Rodney Gregory, a Jacksonville lawyer who is president of the Florida Chapter of the National Bar
Association, a voluntary and primarily black organization, said he has pushed without success to
have Florida Bar officials collect data about black lawyers. He said the best guess is that there are
between 700 and 1,000 black lawyers in the state.
'Justice is blind to color'
It was former Florida Chief Justice B. K. Roberts, now in private practice in Tallahassee, who first
told Bar examiners in the mid-1970s to delete racial information from applications. The 15 members of the Florida Board of Bar Examiners, which oversees admission to the Bar, are creened andnominated by The Florida Bar.
''I didn't want to make a distinction between white or black; then people could say there was
prejudice. Justice is blind to color,'' Roberts said.
He was the justice who wrote the majority opinion in 1957 denying the late Virgil Hawkins, a black
from Leesburg, admission to the segregated UF law school.
Although state universities have been integrated since Hawkins gave up his fight and left Florida to
go to a New England law school in the late 1950s, black law school students are relatively few. The
University of Florida has about 1,200 students in its law school; about 60 are black. At Florida State
about 20 of the 230 law students are black.
Liles and Bar officials charge that the multiplechoice and essay questions that make up the exam -
and determine which law school graduates may become lawyers - are designed to test minimal
knowledge of the law. But others, black lawyers as well as law professors, have questioned the
purpose and motivation behind the exam.
''The only purpose of the Bar exam is to keep the number of attorneys in the state down,'' said Tampa
lawyer Barbara Pittman, a black 1986 FSU law school graduate who passed the exam on her first try.
''It doesn't separate good attorneys from bad ones.''
David Self II, a 1982 UF law school graduate and the last black member of the prestigious University
of Florida Law Review, agreed. The Review is a law school publication that presents scholarly
papers on legal issues. Usually only top law school students are invited to participate in publishing
''I know bad lawyers who pass it and good lawyers who don't,'' said Self, who also passed the Bar
exam on his first try.
Another black UF law school graduate, who has been trying to pass the exam since 1983, said he
believes that black law school graduates face discrimination.
''If you are black, the odds are you are going to fail the Bar exam at least once, maybe twice.
Something's wrong, but nobody wants to talk about it openly,'' said the man, who talked on the
condition that he not be identified because of the stigma of failing the exam. ''No one wants to admit
they can't pass the Bar exam. There's too much humiliation.''
Florida began Bar exams in 1920s
The Florida Bar exam consists of a series of tests: A two-day general Bar exam is given twice a year,
and a shorter multistate exam is given three times annually. The general exam includes a series of
essay questions, and the multistate portion includes a two-hour multiple choice section about ethics.
The first written Bar exam was administered by Massachusetts in 1855, and each state now has its
A Bar exam has been given in Florida since the early 1920s but was required of all prospective
lawyers only since the middle 1950s. At that time the Florida Board of Bar Examiners was formed
and the Florida Agricultural and Mechanical College for Negroes (now Florida A&M University)
began graduating students from its law school. That law school was closed in 1966, when the FSU
law school was established.
FSU law school professor Robert Kennedy, who called the Bar ''a land of myths and fogs'' in a
critical study that appeared in the Florida State University Law Review, said the Bar exam does not
do what Bar officials say it does.
''There is simply no evidence that those who are licensed will provide at least minimally adequate
service . . . ,'' Kennedy wrote.
The Bar exam ignores poverty law, international law, labor law, employment discrimination law,
patents, copyrights and environmental law, among other important categories, Kennedy said recently.
The exam concentrates on legal details and filing deadlines that would be more fitting to a law clerk
or notary than a practicing lawyer, he said.
The disproportionate number of black law school graduates failing Bar exam has led to legal
challenges in other states, such as Georgia and Alabama.
Those challenges have not been successful. One reason is that most states - like Florida - do not keep
statistics on race necessary to document discrimination.
''It's an age-old problem. There are a number of studies of the problem but nothing conclusive,'' said
James Cole, president of the National Bar Association, a group of 12,000 lawyers, judges and law
students. The voluntary Bar association, based in Washington, D.C, was created as an alternative in
1925, when blacks were not allowed into the ABA.
3% of nation's lawyers are blacks
Fewer blacks are in legal profession than in almost any other profession, according to government
About 12 percent of the nation's population is black, but blacks comprise just 3 percent of the
nation's 650,000 lawyers and judges.By comparison, 7.2 percent of the country's mathematicians and
computer scientists are black, 5 percent of the executives and 3.7 percent of the engineers and
physicians. Only advertising, of the major professions, according to the government data, has a lower
percentage of blacks.
But in the past 10 years a few states have examined the problem.
About 10 years ago California began extensive monitoring of Bar passage rates by race at the
insistence of minority groups, said Jim Tippin, director of the California Board of Bar Examiners.
In California, 70 percent of whites pass the bar exam on the first try, compared with 35 percent of
Officials are looking at several ways to increase the number of black law school graduates who pass
the Bar, including adding types of questions to the exam and allowing more time for completion,
revising law school curriculum and raising entrance requirements, said Stephen Klein, a consultant
working with California Bar examiners on minority performance.
There is no simple solution, he said, because black students often come to law school without the
same educational background as whites.
''It is difficult to make up for past deficiencies in the three years of law school,'' he said. ''It may be
that they minorities just need more time.''
Those prior educational disadvantages, coupled with high anxiety about taking the Bar exams, can
become a self-fulfilling prophecy, according to the book, Lawyers of Color, being written by
Littlejohn and Rubinowitz.
Supplemental Bar preparation programs for minorities in several states have met with the most
success in helping minorities pass the Bar, Littlejohn said.
An Illinois program uses volunteer minority lawyers who have passed the state's Bar. It concentrates
on study methods and exam-taking techniques rather than substantive law taught in established Bar
review courses. It also offers practical advice about overcoming pre-exam stress.
A New York program offered since 1978 operates on the premise that ''failure for many, if not most,
minority Bar applicants can be attributed more to psychological than academic difficulties.'' The six-
week course concentrates on study methods and exam-writing techniques and provides individual
counseling, Littlejohn said.
New Jersey also has begun monitoring black Bar exam performance but statistics are confidential.
Still, Sam Uberman, chief of the New Jersey Bar Examination Unit, said the state has found the
information useful in making changes in its exam and testing procedures.
''We can't lower our standards,'' he said, ''but we have an obligation to continually look at what we
are doing to see if another way might be fairer.''
An informal survey by The Orlando Sentinel focusing on 225 black graduates of the University of
Florida and Florida State University law schools - most since 1980 - shows that seven of 10 were
not admitted to the Bar within a year of graduation.
About a third of the black law school graduates never have been allowed to practice law in Florida.
Bar officials do not keep statistics on minority performance and refused to release information on
individuals who pass. The survey consisted of comparing the names of black law graduates to the
roster of new lawyers published each fall by the Bar. Law school officials say the vast majority of
graduates take the Bar exam immediately.
Florida Bar officials defend the exam as necessary to make sure that lawyers have a minimum
understanding of the law, but the disproportionate failure rate of black law school graduates in state
Bar exams throughout the country has raised troubling questions the legal profession is debating:
- Are Bar exams necessary?
- Do state Bar associations and law schools have any obligation to find ways to improve the rate of
blacks passing the exams without changing Bar admission standards?
- Most importantly: Are law schools graduating blacks who are not competent to be lawyers, or are
black law school graduates being discriminated against by the legal establishment?
Florida Bar and law school officials say they are surprised by blacks' low pass rate, but few people
have ready answers. In part, that is because The Florida Bar keeps no statistics by race, and neither
the state Bar nor the universities have studied the problem.
At the University of Florida law school, the largest of the two state-run law schools, 31 percent - 43
of 138 - black law school graduates since 1980 were admitted to The Florida Bar within a year of
Sixty-two percent - 86 of those 138 graduates - have become members of Florida's legal profession.
Although some might have gone to other states to practice law, of the 52 black UF law school
graduates who have not been admitted to the Bar, 33 remain in the state. Some have given up hope
of becoming lawyers and have new careers.
The situation is equally bleak at the smaller FSU law school. Of 84 black law graduates there, 36
were admitted to the Bar within a year of graduation, and 18 have yet to pass the state Bar although
most still live in Florida.
''That's tragic,'' said Edward Littlejohn, a law professor at Wayne State University In Detroit, Mich.,
and a consultant who has looked into minority relations in the legal profession for the American Bar
Littlejohn said that since the 1970s, when law schools began graduating blacks in significant
numbers, blacks consistently have failed Bar exams at substantially higher rates than whites.
He said the situation is a ''critical concern'' for the legal profession nationally.
A legal system in which blacks are underepresented will be less inclined to tackle civil rights issues
and less watchful of the rights of individual blacks before the courts, he said.
And, Littlejohn said, lawyers make up the bulk of state legislatures and Congress.
''Being a lawyer is more than being a member of a profession,'' he said. ''We are a nation of laws, and
lawyers write and enforce those laws.''
Research turns up alarming information