The Bar Exam: An Urgent Need for Alternative Pathways to Licensure

Q&A with the Washington Bar Licensure Task Force Co-Chairs, Washington Supreme Court Justice Raquel Montoya-Lewis and Seattle University School of Law Dean Anthony E. Varona

Illustration © Getty/Eoneren

Justice Raquel Montoya-Lewis [RML]: In 2020, the court was figuring out how to administer the bar exam while keeping examinees safe during the COVID-19 pandemic. It became evident early on that holding the exam was going to be dangerous, so the court chose to grant a one-time diploma privilege to applicants who had graduated from an accredited law school. That meant that applicants who chose to go that route were sworn into the profession without taking a bar exam. Following that decision, the court received a whole host of suggestions about what to do moving forward. Much of that feedback was from students saying that this was an important milestone and opportunity for the court to reconsider the relevance of the bar exam to the practice of law. We also had a big group of people, mostly lawyers, who said they felt the bar exam is an integral part of licensure. So we had all this range of possibility, and then-Chief Justice Stephens asked me and Dean Rooksby from Gonzaga Law School to co-chair a task force to examine the history of the bar exam and to look at what alternatives there might be—keeping in mind the primary reason the bar exam exists, which is protecting the public. The charter called for wide representation on the task force. Initially, we set about breaking down the project into smaller pieces and forming subcommittees. We looked at the history of the bar exam, within the state of Washington and throughout the states—you are probably aware that Oregon, for example, has been undergoing a very significant change to its licensure process—and other jurisdictions, like Canada. We had a number of guest speakers that came to talk to us, including law scholars and deans and representatives from the National Conference of Bar Examiners.

Dean Anthony E. Varona [AEV]: That’s about the time I joined the task force as a co-chair, on July 1 of last year, which also happened to be my first day as dean at Seattle University School of Law. The Chief Justice called me two weeks before I started and let me know that Dean Rooksby was stepping off for personal reasons, and that he, the Chief, wanted me to assume the co-chair role. I said, yes, of course, it would be my tremendous honor to serve with Justice Montoya-Lewis, and it very much has been so.

RML: That’s when we began the challenge of putting pen to paper, saying, “Okay, what are we going to do with all this?”

AEV: We spent time absorbing and analyzing all the research. We took a very studied and measured approach to assessing the data. We ended up at a half-day retreat that we hosted here at Seattle University last spring. We deliberated and voted, and the recommendations that we are presenting now are the result of those votes.

AEV: When it comes to assessing lawyer competence, we saw again and again and again in our research conclusive evidence that the existing bar exam is far from a foolproof or even reliable measure of competence; and, to the detriment of both candidates and the profession, it replicates and perpetuates bias. 

RML: One of the things I have become completely convinced of is that the bar exam tests something—but that something is not necessarily competency or readiness to practice law. It does not test someone’s ability to represent a client in court or properly advise them of the law. The bar exam tests a very limited set of facts and subjects, and in terms of what people assume about the bar exam—that if an applicant passes the bar exam, they are qualified to practice law—well, the work we have done in the task force has made it clear that is a false assumption. 

There is another consideration, which gets to the imperative of the alternative pathways. The impacts of the bar exam on communities of color are undeniably negative—they fail at higher rates. From our studies, we see there are reasons that are explicable and other reasons that we don’t necessarily understand, but the data is clear and unignorable. It is reflective of what you see in standardized testing across the board, including the SATs. Personally speaking, as a professor of law, I have had students fail the bar exam; all of them have been students of color and all of them have been absolutely qualified to practice law. Some of them have been my best students, and they have gone on to have remarkable legal careers. That tells me there is a disconnect between what is being tested and the competency of these students. There is an imperative when we look at the people we are disproportionally barring from the practice of law, and I don’t know how to address those issues without, at minimum, providing an alternative pathway to licensure. Having a singular pathway, as we do now, is hurting the profession. We are failing to adequately represent all the communities we should serve. 

AEV: I would add that in my experience—and especially over the last 15 months as I have been getting to know the Washington communities we serve as a law school—there is a significant problem of legal deserts, where there is a tremendous demand for lawyers and legal education but inadequate or entirely nonexistent supply. I have learned that some of the most effective lawyers in these areas are bilingual or multilingual—bicultural and multicultural—because they deeply understand the community. They are able to transcend linguistic and cultural and sociological barriers to build trust and provide much-needed services. From that perspective, I have to ask—does the bar exam assess competency in any of those areas? No, not at all. And if the bar exam is preventing these lawyers from practicing and helping underserved communities, then we have a major problem on our hands that calls for redress. 

RML: I would add that the current bar exam presents real hurdles for people with disabilities, including people with learning disabilities. As a profession, we need to do a much better job of eliminating barriers for people with disabilities. 

RML: I think there are a few reasons. One is simply the idea that “I had to go through it, it was hell,” and that is the ritual for gaining entry into this profession. I frequently hear from applicants who, as soon as they find out they have passed the bar, say, “everything I learned has already fallen out of my head.” That is accurate, you can’t hold all that information in your head, and you don’t need to. The laws change all the time, so one of the legal skills we should prioritize is the ability to find the best resources for every case. If I were to hire a lawyer, it would be one who would consult the law and colleagues and experts—not static, memorized knowledge—all before answering a difficult question. 

One other reason, maybe the hardest to confront head on, is the belief that if we open alternative pathways to practice law, we will be admitting people as lawyers who look a lot different than the people we have historically admitted to be lawyers. I recently overheard a lawyer say, in respect to me and my work, that, “She is going to be admitting more illiterate brown lawyers like herself.” That actually happened. He was not hiding his bias, but I think many do. That’s a real undercurrent we are battling.

AEV: What Justice Montoya-Lewis has experienced is so indicative of the gatekeeping perpetuated by the traditional bar exam. I agree that it has become almost a rite of passage or hazing, like an admissions ticket to a private club. This form of gatekeeping has been very detrimental in shaping the legal profession. Just using one metric, I have been speaking as part of Hispanic Heritage Month at various law firms. What I have been sharing is that we comprise almost 20 percent of the American population and yet only about 5 percent of attorneys across the nation are Hispanic and Latinx. Out of about 193 accredited law schools in the 50 states and D.C., only nine have Hispanic and Latinx deans. That is a problem, considering it’s just one slice of diversity data.  

AEV: We share concerns about protection of the public. That has been our primary lens. We believe that many law-school graduates are still going to be opting for the traditional bar exam because the pathways we have devised are difficult, rigorous pathways. They have assessment points and real-world application that, in some ways, will be more challenging and certainly more time-consuming and resource intensive than the traditional bar exam. So, when you take into account that the traditional bar exam is a very flawed and imperfect measure of assessment, the alternative pathways perhaps should give some confidence; the pathways we have devised may not be perfect, but they have a lot more assessment and application to them. 

RML: One of the things I have learned as a Justice in terms of looking at character and fitness is that the number of cases that come before us is very small, so it can feel like there is an inconsistency in the way we deal with those cases. What I am pleased about is the possibility of providing more guidance about our standards to the Character and Fitness Board and applicants. In historical perspective, the things that mattered in a character and fitness hearing 30 years ago are probably very different than now. In some ways, that is what this entire task force has been about: In our modern world, what do we need to do to reevaluate our licensing standards to make sure they are truly upholding the integrity of the legal profession? That’s the imperative.  

Justice Raquel Montoya-Lewis was appointed to the Washington State Supreme Court by Governor Jay Inslee in December 2019 and took the oath of office on Jan. 6, 2020. Justice Montoya-Lewis is an enrolled member of the Pueblo of Isleta and a descendant of the Pueblo of Laguna, two federally recognized tribes in New Mexico. She is the first enrolled member of any tribe to sit on a state supreme court in the U.S. and the second Native American to sit on a state supreme court. She is also of Jewish descent. Prior to becoming an associate justice, she served as a Superior Court judge for Whatcom County for five years. In the 15 years prior to her work on the Superior Court, she served as a tribal court judge for multiple tribes in the Pacific Northwest and the Southwest. 

Anthony E. Varona is in his second year as dean at Seattle University School of Law, where he just welcomed the most diverse entering class in the law school’s history, as well as its academically strongest in 13 years, and the largest cohort of international LL.M. students ever. A former dean and dean emeritus at University of Miami School of Law, vice dean and academic dean at American University Washington College of Law, general counsel and legal director at the Human Rights Campaign, and associate at Mintz Levin and Skadden Arps, Varona received his A.B. and J.D. degrees from Boston College and an LL.M. from Georgetown.