Nothing about this recent article by three NCBE staff on test bias needed controversy.
The meat of the article focuses on techniques and control procedures for designing a test that in and of itself does not introduce additional bias. Don’t ask questions about the correct clothing to take part in a regatta in Maine. We understand The whole thing could have been a dry recitation of psychometric techniques and never raise an eyebrow.
But the people at NCBE just couldn’t help themselves. The authors opened a dog-eared copy of Mismatch Roaming the Home Office and made a series of selfish dictates to indicate that, in the NCBE’s view, if minority lawyers fail their exam in disproportionate numbers, it is not the fault of the test – it is that minorities are not qualified as lawyers at all.
Never miss the opportunity to double up on a bad idea!
The National Council for Measurement of Education (NCME) endorsed this view when it stated that “[d]There are racial / ethnic differences in socio-economic status and quality of education in this country. Criticizing test results to reflect these inequalities is like blaming a thermometer for global warming. “
Who is more stupid, the NCME that made that bony-headed remark or the NCBE that chose in the affirmative to quote it? It feels like the latter because the repeater always has a chance to stop and think about it. Or at least that’s how Obi-Wan would see it.
Even if the blame for standardized tests were generally akin to “blaming a global warming thermometer”, It’s a bankrupt analogy for the bar exam. The bar exam is just loosely a measurement tool. Its main purpose is to prevent the advancement of law graduates. The more appropriate comparison would be “like blaming coal-fired power plants for global warming” – a direct contribution to the problem, albeit one that pales in comparison to the internal combustion engine, for example.
That path to racist apology is worn out. Spend time lamenting years of structural racism in the American education system and encourage readers to accuse Ms. Herlihy’s kindergarten class of exempting higher education from any responsibility for addressing racial inequalities. It’s an attitude that’s … transparently awakened less than it intended to sound.
Someone at NCBE was complacent enough about it to be featured on social media. This is amazing because, at best, the article boils down to “Racism exists in the world and minority law graduates can be forced into a debt cycle that never pays off, which is a small price to pay for an exam that confirms this. “
This is not an exaggeration! The last sentence of the article reads, “However, if we eliminate standardized tests to eliminate the assessment differences, we risk lulling ourselves into complacency and a false sense of social achievement when there is actually much to be done.” Nobody needs that Test to arrive at that conclusion! An exam that, by design, might provide insights such as “This group of students had problems with this type of question,” which could then be used to provide prescriptive guidance on solving this problem might be worthwhile. Not the bar exam. It says, “It looks like the problem still exists. It’s a shame to be you.” That is the definition of complacency.
If the talk about structural racism were anything but lip service, the authors might think that the whole point of the word “structural” is to recognize that there is not a single source of racist outcomes committed by institutions those who see their own roles as such are relatively minor, creating an ever-worsening nightmare. It’s such a wrong attitude. Exxon puts out more real Earth Day news.
The bar exam, in its modern form, exists as part of a licensing system designed to block minority access to the profession. How do we know? Because when the ABA drafted the current licensing model, it was said that one of the purposes was to keep blacks, Jews and immigrants away. Not addressing the “structural” point, but another feature of structural discrimination is the obligation to close generational opportunities by preventing graduates from advancing in their careers and passing those opportunities on to their children. But you know, blame anyone for it except verbatim gatekeeping.
Lawyers must meet a minimum level of competence. Everyone agrees. Aside from the bar exam not running this as a scaled test and with varying status from state to state (e.g. a fully competent lawyer in New York would fail in Delaware for … reasons), why should you rely on this test ? rather than guarantee that accredited lawyers graduate students who meet minimum proficiency standards? If law school is a prerequisite for the exam anyway, as is the case in most states, what value is there in taking a completely independent one-time exam after graduates have gone through an expensive, iterative assessment process at an accredited law school? Apart from feeding diploma mills, of course.
And so the whole framework of defending the bar exam misses the forest for the trees. It is not that Question 23 of the Multistate is racist – the only category of allegations that the article attempts to refute in substance – but that the whole idea of a one-time license check as an obstacle to the practice is another building block of the systemic racism wall. Nothing about this article addresses this, and for the most part makes it a non-consequence of the bar exam debate which it positions itself as the solution.
It is as if the NCBE does not grasp the outline of the discussion. I blame Ms. Herlihy.
The test column: ensuring a fair assessment [The Bar Examiner]
 And that’s not it. Standardized tests at all levels can do much more than just measure student progress. Policy makers use scores to engage students in tracked learning, allocate school resources, and even perform performance reviews on entire schools.
 This is what a professional operation looks like, where you don’t blame us.
 We’ll talk more about this “one-off” aspect in the future, but for now, here’s an excellent recent article that goes into how bizarre it is.
Joe Patrice is Senior Editor at Above the Law and co-moderator of Thinking Like A Lawyer. Feel free to email tips, questions, or comments. Follow him on Twitter for all the law, politics, and a healthy dose of college sports news. Joe is also the managing director of RPN Executive Search.