Copyright © 1996 Florida State University Law Review

This Article analyzes each of the three interrelated factors that have stymied any serious effort to correct bias in the bar examination propcess. Part II examines the widespread practice of forbidding the collection of hard data documenting the performance of bar candidates along racial or ethnic lines in virtually every jurisdiction. In reviewing the history of this practice, the Article identifies a correlation between the banning of such data collection and the entry of large numbers of minorities into law schools. The proffered rationale supporting this practice is reviewed, and recommendations calling for its reversal are made. Part III examines prior judicial challenges to the bar examination on the basis of unlawful racial discrimination. This part reviews the various constitutional and statutory bases which plaintiffs have utilized and suggests that not only do courts almost universally reject racial discrimination claims against state bar examiners, but they also appear hostile to such actions. The Article explores possible sources and explanations for such hostility and considers their implications. Part IV confronts and dispels the myth that the bar examination serves as a test to ensure the minimum competence of lawyers. Part V reviews the major theories, as reflected in the few studies which have been conducted in this area, and explains the causes and sources of racially disparate bar performance. This part analyzes and critiques the prevailing rationale that racial differences in bar passage rates derive from poor academic preparation and performance by minorities at every significant stage along the educational pipeline. This part also confronts the logical conclusion of this theory—that the only solutions to the present problem are long-term and must occur long before minorities come to the bar exam. Finally, in part VI the Article concludes with a modest proposal for process-based solutions to the bar passage problem, including both long- and short-term applications.

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