The State Bar of California has proposed two utterly awful changes to the bar exam | Opinion

Sometimes bad decisions lead to even worse decisions. This is true of recent choices proposed by the State Bar of California regarding major changes in the administration of the bar examination.

Hopefully, the California Supreme Court will exercise better judgment and reject these proposals.

The bar exam has always been regarded as a measure of the minimum competence to be a lawyer. Whether it actually succeeds in ensuring that is questionable, but it remains a requirement for admission to the bar. The bar exam is, of course, enormously important to those who attend law school because passing is a requirement to become a lawyer and practice law.

For over 40 years, there have been three parts to the California Bar Examination. One part, a full day of the two-day test, is comprised of 200 multiple choice questions. California, like virtually every state, has used questions prepared by the National Conference of Bar Examiners. The other parts of the exam involve essay questions and a performance test, both prepared by California Bar Examiners.

Thirty-eight states have shifted to the Uniform Bar Exam — meaning these states administer the same exam (a state can add questions about unique features of its law, and each state sets its own passing score). The huge advantage of the Uniform Bar Exam is that it allows attorneys to move from state to state without needing to take another bar exam.

California should join the strong trend of states adopting this exam.

But that is not the direction chosen by the State Bar of California — nor did the State Bar choose to continue to use the multiple-choice exam prepared by the National Conference of Bar Examiners, as it has done for decades. Instead, to save money, the State Bar finalized an agreement with Kaplan this past August to prepare questions for the California Bar Exam beginning in February of 2025.

This decision is highly questionable.

Kaplan is a company that exists to prepare students for a wide range of standardized tests, including preparing students for the bar exam. It does not, however, prepare actual tests.

The preparation of test questions that appropriately measure knowledge and skills is a painstaking process. I am skeptical of Kaplan being chosen for this and dubious about it preparing a bar exam for February, including with a shift to remote administration.

Then, the State Bar made the entire situation worse by making a terrible choice: It announced that it would give an experimental bar exam on Nov. 8 that does not count so that it could field test questions. To give students an incentive to take this practice exam and to take it seriously, the State Bar said those taking the practice exam would receive up to 40 extra points when they take the actual bar exam.

Forty points is often the difference between passing and failing the bar exam. It means that there are sure to be situations of applicants for the bar with identical scores on the bar exam, but some will pass and others will fail solely because the former participated in the experiment while others did not.

That is obviously very unfair and inconsistent with the reasons for having a bar exam in the first place.

The justification for the bar exam’s very existence is that it measures minimum competency to practice law. Those who fail are deemed not qualified for a license to practice law. It makes no sense to say that some individuals who failed the bar, according to the State Bar’s standard of competency, are deemed qualified just because they helped the State Bar by participating in an experiment.

The bar, of course, could give monetary incentives to individuals to take the practice exam. But its leaders said that would not be sufficient reason for students to study hard enough to make the experimental bar useful. That, though, is another reason why this is a bad idea. In November, law students should be studying for their classes, working in clinics and doing pro bono work. Serious bar study would detract from all of this.

Thankfully, all of this is a proposal to the California Supreme Court. It should reject the Bar’s approach and restore sanity to a process that matters so much in people’s lives and to the practice of law in California.