Page 18 - Delaware Lawyer - Summer 2022

FEATURE | THE DEFINITION OF RIGOR
Are the requirements of bar admission relevant to their purpose? This question takes on heightened importance in the context of diversity.
rigorous if it is exacting and difficult. I recently asked friends to describe their conceptions of rigor. They used words like challenging, intense and exhaust- ing. The Book of Exodus uses the term “rigor” to describe the condition of bondage endured by the Israelites.13 All these conceptions put primary fo- cus on the process or condition being experienced. But in considering the bar admission process, I offer the following conception:
Rigor is the close alignment of a thing, such as a process, with articulated purposes, goals or functions. While a rigorous process may also be difficult, a difficult process may lack rigor if it is not closely aligned with articulated purposes, goals or functions.
This conception of rigor departs from conventional notions in that it centers the purpose, goal or function of a process. Then it assesses the process itself, namely its alignment with its pur- pose, goal and function. Below, I illus- trate its applicability to the bar admis- sion process, with specific focus on the bar exam.
In In re Reardon,14 the Delaware Supreme Court stated: “The purpose of the Bar Examination is to distinguish [bar admission] applicants who appear to have the minimal competence for the practice of law.”15
According to the Court, the bar exam’s function is to serve as a binary measure of minimum competence to practice law. This is the stated premise of all bar exams. Test takers who meet or exceed the cut score are deemed min- imally competent. Others are deemed lacking minimum competence. Given this purpose, assessment of the exam’s rigor should be tied to the extent that it serves as a provable measure of mini- mum competence.
Much of the lore about bar exams revolves around the many hours of studying they require over multiple
Conversely, white students were almost four times as likely as Black students to expect no student loan debt at all.
Upon graduation, the bar admis- sion process awaits. This multi-pronged process is the final — and again, costly — step on the journey to becoming a lawyer. Bar application and exam fees are typically hundreds of dollars, and in some jurisdictions, they exceed $1,000. Comprehensive bar exam prep typically costs thousands of dollars. Preparing for the exam requires most bar takers to forego employment for the roughly 10- week study period. But some test-takers with limited resources have no choice but to undertake employment during this critical period, leaving less time and mental energy to study. Others may nonetheless be wracked with financial worry. As one bar taker told AccessLex researchers in a study of bar takers in New York State:7 “Finances were my biggest challenge. At times, I did not have enough money to eat.”8 This bar taker, unfortunately, failed the exam.
In that study, employment during the bar prep period was found to be negatively associated with first-time pas- sage. There were several other findings that are also telling:
• Lowerhouseholdincomewasas- sociated with lower first-time pass rates.
• Higher law school debt was as- sociated with lower first-time pass rates.
• Financial assistance from family members was associated with higher first-time pass rates.
These trends highlight how resource disparities impact bar exam perfor- mance. These impacts are made tan- gible through data from the American Bar Association showing vast racial and ethnic disparities in bar passage nation- wide.9 In 2021, Black bar-takers had a first-time passage rate that was 24 per- centage points lower than white bar- takers — 61% versus 85%.10 Trends like this help explain why after a half century of efforts to diversify the legal profes- sion, people of color comprise only 14% of lawyers nationwide.11
Reframing Rigor
The summary above is a mere snap- shot of a multifaceted and layered issue. But the role of the summary is to illustrate how one’s ability to navigate the require- ments of becoming a lawyer is often more a function of privilege than merit. The ability to withstand the financial impact of foregoing income during the prep period says nothing about one’s competence to practice law. Therefore, discussions of bar admission reforms are best centered on the extent to which requirements are fo- cused on their goal or purpose.
So, what is rigor? Merriam-Webster provides multiple definitions. Three of them seem relevant to this discussion:
• the quality of being unyielding or inflexible
• an act or instance of strictness, se- verity or cruelty
• a condition that makes life diffi- cult, challenging or uncomfortable12
These definitions reflect my general understanding of the term. A thing is
16 DELAWARE LAWYER SUMMER 2022