State Bar & Bar Associations,
Letters
Sep. 25, 2024
Committee of Bar Examiners stand ready to act on February California Bar Exam and experiment
Experiment participants would only be eligible to receive a grading adjustment if they meet a minimum threshold score in order to minimize any unintended and unfair advantage to those who would not otherwise be competent to practice law.
Alex Chan
Partner, Devlin Law Firm LLC
Email: achan@devlinlawfirm.com
Univ. of New Hampshire SOL; Concord NH
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.
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