TRUE STORY – If Rosa Parks Was a Lawyer and Alive Today, She Would Be Denied A Seat at the Bar in Most United States District Courts Until She Passed Another Bar Exam That Is Substantially The Same As A Literacy Test
Rosa Parks was famously denied a seat on a bus based on state law. If Rosa Parks were alive today and she was an experienced lawyer with five, ten, twenty, or thirty or more years of experience as a lawyer in good standing, she would be denied a seat at the bar of the defendant United States District Courts based on state law. The argument is Rosa can take the entry level bar in New Jersey and Delaware and then she can sit at the front of the bar in the United States Courthouse. One glitch, among many, is federal law requires licensing tests to conform to the nationally recognized Standards for Educational and Psychological Testing, (2014), published by the American Educational Research Association, American Psychological Association, and the National Council on Measurement in Education. The Standards have been incorporated into federal law. 34 CFR 668.148(a)(2)(iv); AMERICAN SOC. FOR TESTING v. Public. Resource. Org, 896 F. 3d 437 (D.C. Cir. 2018), Affirmed by Georgia v. Public. Resource. Org, Inc., 140 S. Ct. 1498 (2020). There are three fundament testing Standards: Validity, reliability, fairness. For a licensing test to be valid it must also meet the interlocking reliable and fairness standards. All three standards must be met.
As to validity, the American Bar Association (ABA) and Uniform Bar Exam Commission (UBE) are experts in testing and attorney licensing. They have concluded licensed attorneys are not a threat to the public and their prior licenses is substantive proof they are competent. Eighty percent of the states have adopted this judgment. There is no evidence they got it wrong. The ABA and UBE have essentially concluded, without directly saying so in effect, that states should provide full faith and credit to the licensing acts, records, and judgment of competence of other states. Similarly, Federal Judicial Conference studies have concluded “(N)o one has yet devised an examination which will test one’s ability to be a courtroom advocate” and there is a correlation with experience and competence. Report and Tentative Recommendations of the Committee to Practice in the Federal Courts in the Judicial Conference of the United States. 79 F.R.D. 187, 196. No one can deny that eighty percent of American citizens cannot afford to hire a lawyer to access justice. That is a fact according to Justice GORSUCH.
As to reliability there is undisputed material evidence that it “is almost impossible to get subjective graders to agree on bar exam scores.” See Geoff Norman, “So What Does Guessing the Right Answer Out of Four Have to Do With Competence Anyway?” The Bar Examiner, p. 21 (Nov 2008); Susan M. Case, “Licensure In My Ideal World,” The Bar Examiner, p. 27 November 2005. See Stephen P. Klein, “What Do Test Scores in Texas Tell Us?” (Published 2000 by RAND). Dr. Klein was the State Bar of California’s primary testing expert. He admits:
“Our research results illustrate the danger of relying on statewide test scores as the sole measure of student achievement when these scores are used to make high-stakes decisions about teachers and schools as well as students. We anticipate that our findings will be of interest to local, state, and national educational policymakers, legislators, educators, and fellow researchers and measurement specialists.”
The State Bar of California licensing test for already licensed attorneys is a high-stakes 100% subjective licensing test. It is not a valid or reliable test according to the State’s own testing expert. Furthermore, RAND Corporation statistical reports on the exam, over and over again going back over thirty years, prove this putative licensing test has a standard error of measurement shoddier than .48. The industry standard for grader agreement requires .85.
The evidence shows the purpose and effect of these subjective entry-level licensing tests is to provide a wall against competition. This wall obstructs equal access to the United States Courthouse. The results of this putative licensing test are not admissible into evidence under Daubert and FRE 700 series. There is little difference between requiring Black citizens to pass a literacy test in order to vote than requiring already licensed attorneys to pass another subjective bar exam in order to exercise their First Amendment rights in the United States Courthouse. Furthermore, there is no evidence the Delaware or New Jersey Bar exam for already licensed attorneys are more reliable that California’s licensing subterfuge.
As to fairness, if a licensing test is neither valid nor reliable, by definition it is not fair. It is arbitrary and irrational. Many subjects of federal law are not tested on any States bar exam. The ABA and UBE have concluded that it is not fair to require already licensed attorneys to take time off of from work and reinvent the wheel. The days when all lawyers practiced everything and were not specialists are long gone. PACER and COVID19 have revolutionized law practice in the federal courthouse.
It is also fundamentally unfair to lump already licensed attorneys with recent law school graduates who have never practiced law because the cognitive science of expertise and expert performance proves excellence is the product of experience and that it cannot be predicted. See K. Anders Ericsson, Ed., The Cambridge Handbook of Expertise and Expert Performance (Cambridge University Press 2006). K. Anders Ericsson is the leading pioneer in this cross-disciplinary field. Cognitive scientists have concluded that it takes 10,000 hours to develop true expertise in any field, taking the brain this long to assimilate all that it needs to know to achieve true mastery. The science of expertise and expert performance proves that experts surpass novices, those new to a profession, in seven major ways: (a) generating the best solution; (b) pattern recognition; (c) qualitative analysis; (d) self-monitoring skills in terms of their ability and knowing what they do not know; (e) choosing appropriate strategies; (f) seeing and exploiting opportunities; and (g) cognitive effort, meaning they work faster, with less effort, and greater control. Id. at 27.