Barring Entry to the Legal Profession: How the Law Condones Willful Blindness to the Bar Exam’s Racially Disparate Impacts

In 2020, only 14.1% of lawyers identified as BIPOC (Black, Indigenous, and People of Color), even though 40% of the United States population identified as such. Academics, activists, and attorneys point to a variety of reasons for this disproportion: underfunded public schools, astronomical student debt, standardized tests like the SAT and the LSAT, and many other institutional barriers that disproportionately affect members of the BIPOC community. This Note, however, focuses on the final hurdle that a BIPOC law graduate must overcome after a lifetime of persisting past the odds: the bar examination.

Despite the bar exam’s exclusionary history and the considerable gaps in passage rates between white and BIPOC (particularly Black and Latinx) test-takers, the legal community has remained resolute to using the bar exam as the primary indicator of readiness to practice law. As this Note discusses, willful blindness to the bar exam’s disparate impacts is condoned in part by two legal doctrines that protect decisionmakers from legal accountability—absolute immunity doctrine and an uncompromisingly limited interpretation of the Fourteenth Amendment. This Note analyzes how these two doctrines block a potential constitutional challenge to the bar exam and how courts have declined to accept or assign responsibility. Finally, this Note calls on state supreme courts, the National Conference of Bar Examiners, state bar associations, and other influential decisionmakers to: (1) start collecting and publishing bar admission rates disaggregated by race, and (2) enter into a broader conversation regarding when decades of turning away from inequitable outcomes should fulfill the Fourteenth Amendment’s court-created intent requirement.