Professor Mary Szto has published the paper “Barring Diversity? The American Bar Exam as Initiation Rite and its Eugenics Origin” in the Connecticut Public Interest Law Journal. The article appears in 21 Conn. Pub. Int. L.J. 38 (2022).
Abstract
The American bar exam is an initiation rite that bars diversity in the legal profession.
According to the 2020 census, the US population is over 42% minorities. However, only 14% of the legal profession is. In 2020 the American Bar Association released data that the first-time bar exam pass rate was 88% for Whites, 80% for Asians, 78% for Native Americans, 76% for Hispanics, and 66% for Blacks.
Initiation rites often involve a separation from society, a liminal period, an ordeal, and then reincorporation into society. The bar exam follows this pattern. However, many minority candidates cannot afford months of unpaid isolated study, much less further bar attempts.
Racial disparities in first time bar passage rates are not coincidental, but rooted in the eugenics origin of the bar exam. Bar admissions standards arose amid teachings about Anglo-Saxon white supremacy in the late 1800s and early 1900s. Eugenics theory was then mainstream science and held that non-whites should be denied access to property ownership, education, and the legal profession. Minorities were excluded from most law schools, and there was widespread fear of immigrants diluting the US white population and the legal profession.
Eugenics-inspired federal redlining policies from the 1930s also led to huge racial wealth gaps then and now. Homeownership is the chief way Americans build intergenerational wealth. Redlining prevented non-whites from owning homes by blocking access to federally subsidized home mortgages. Thus, in pre-pandemic 2019 White families had eight times the wealth of Black families and five times the wealth of Hispanic families. Therefore, to diversify the legal profession, we must acknowledge this eugenics history and racial wealth gap and institute the diploma privilege, or create sequenced open book bar exams or other alternatives that do not require costly isolated study and bar preparation courses. Healing reform will help all candidates, and the public we serve.