Last Friday, Alabama Supreme Court Justice Jay Mitchell wrote an op-ed in the “Wall Street Journal” sounding the alarm about potentially disastrous revisions to the bar exam. If you can’t read it because of the paywall, Will Blakely did an excellent job summarizing the key points for 1819 News.
I have long questioned whether the bar exam is a fair assessment of a potential lawyer’s competency. If the objective is to assess whether lawyers will be competent by testing them on issues that will arise in the practice of law, then one would expect the exam to test issues that would commonly arise, right?
Sometimes it does. But other times, the only question you’ll get to test your knowledge in an entire field of law is the bar exam’s equivalent to Monty Python’s, “What is the airspeed velocity of an unladen swallow?” And if you don’t know, then the only thing you can think after being cast off the bridge into the gorge is, “Really?”
My good friend Allen Mendenhall has argued that the bar exam needs to be revised, and many share his concerns. I think we need to revisit whether the bar exam, as it stands, is a good way to protect the public and test lawyer competency.
Thus, when I heard that the National Conference of Bar Examiners was revising the bar exam, I got hopeful … for a second.
Instead of a fair assessment of how much a lawyer knows, the NextGen exam focuses on diversity, equity, and inclusion, or DEI for short. Our friends at the Alabama Policy Institute have written about DEI practices, but in short, DEI might mean well but does more harm than good by watering down standards to diversify demographics. It focuses on the identity of the people involved rather than on the quality of work they can do.
We’re not talking about legitimate efforts to eliminate things like racial discrimination. I believe in Martin Luther King’s vision of evaluating people on the content of their character rather than the color of their skin. And in the workplace, character and competency are what we’re looking for.
But that’s the problem with DEI. It cares not for character or competency — at least not as much as it cares for class, color, or similar characteristics. The main thing it cares about is quotas. And if quotas sacrifice quality, then that’s a big problem.
This is especially problematic for the practice of law. Lawyers are entrusted with their clients’ property, liberty, and sometimes even their lives. You typically don’t call a lawyer when things are good. You call a lawyer when the stakes are high, and you will suffer serious consequences if you don’t get help. So if you hire a lawyer to make sure you can keep your money, your home, your children, your liberty, or even your life, there’s really only one thing you care about: Can this lawyer competently represent me?
What if the answer was “no, but I’m transgender” or a minority, or gay, or an immigrant, or a minority religion, or…
You probably don’t care. The lawyer lost you at “no,” right?
I’m not at all arguing that quality will suffer if more people like this come into the legal profession. I’m saying that quality will suffer if we intentionally sacrifice competency to focus on DEI. And that’s the main complaint in Justice Mitchell’s op-ed as well.
I think the bar exam likely needs revising, but this isn’t the way to do it. We need a way of testing lawyer competency that fairly assesses them so that we protect the public. That competency assessment should reflect the notion that justice is blind, giving the same chance to everyone who diligently prepares and has the character to be a lawyer. But reducing competency in order to meet quotas will result only in people losing legitimate cases because they did not have a competent lawyer.
I encourage every lawyer and judge concerned about this to critically evaluate the NextGen bar exam when it comes out and make recommendations to the Alabama State Bar and the Alabama Supreme Court about whether we should adopt it. If this would be bad for our state, then we should break with the Uniform Bar Exam and come up with our own. The welfare of the people of Alabama depends on it.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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