Espinoza v. California State Bar Committee of Examiners Memorandum of Points and Authorities Un Support Thereof and Petitioners Exhibits
Public Court Documents
June 20, 1972
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Brief Collection, LDF Court Filings. Espinoza v. California State Bar Committee of Examiners Memorandum of Points and Authorities Un Support Thereof and Petitioners Exhibits, 1972. aa016a0b-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/373f0065-7df9-485a-b066-7ec9ef11881e/espinoza-v-california-state-bar-committee-of-examiners-memorandum-of-points-and-authorities-un-support-thereof-and-petitioners-exhibits. Accessed May 03, 2025.
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IN THE SUPREME COURT OF TIIE STATE OF CALIFORNIA
HENRY ESP I NO 7. A , LAURA M. HOLT, )
JIMMY D. LOFTON. * )
NORTHERN CALIFORNIA CONFEDERA- )
TION OF BLACK LAM STUDENT.AS- )
SOCIATIONS , CKICA.NO I.AW STUDENTS )
ASSOCIATION (CALIFORNIA), NA- )
TIONAL ASSOCIATION' FOR THE AD- )
VANCEMENT OF COLORED PEOPLE )
(V7ESTERN REGION) , MEXICAN-AM- )
ERIC AN POLITICAL ASSOCIATION, .)
NATIONAL ASSOCIATION FOR THE )
ADVANCEMENT OF COLORED PEOPLE )
(SAN FRANCISCO BRANCH), KEX- )
I CAN AMERICAN BAR .ASSOCIATION , )
THE LEAGUE 0? UNITED LZvTIU- )
AMERICAN* CITIZENS AND THE AM- • )
ERICAN G.I. FORUM, )
)
Petitioners , )
)
-vs- '■ )
)
THE CO.T-.'I j. Ti.iĵ v_ )
OF THE STATE BAR OF CALIFORNIA, )
THE BOARD OF GOVERNORS OF THE )
STATE BAR OF CALIFORNIA, AND . )
THE STATE BAR OF CALIFORNIA, )
)
Respondents. )
^ a T?G.’ v 4 w
*
17 r
NO.
PETITION FOR V-7.RIT OF REVIEW AND/OR -WRIT OF MANDATE
a n d/oi. ;>pri.-:lc7v?i~6n'"Fo pulercY se rtils-~hakxTig~p o v z r '
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
and
-PETITIONERS KN.WI* ]. 29
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1 ROBERT L. GNAI 2 DA, ESQ.
SIDNEY M . NOLINSKY , ESQ.
albert Tn MORENO, ESQ .
J. ANTITONY' KLINS , ESQ.
JO ANN CHI.HOLER, ESQ.
Public Advocates; Inc:
433 Turk Street
San Francisco, California 94102
Tel: (415) 441-8850
ALAN EXELROD, ESQ.
MICHAEL MENDELSON, ESQ.
Mexican-American Legal
Defense and Educational Fund
National Office
145 - 9th Street
San Francisco, California 94102
Tel: (415) 626-6196
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*>*> .J
TERRY J. HATTER, JR., ESQ.
ABBY SOVEN, ESQ.
HAROLD HART-NI33RIG, ESQ.
LORETTA SIFUENTES, ESQ.
Western Center on Lav: & Poverty
1709 West 0th Street
Los Angeles, California 90017'
Tel: (213) 483-1491
MARTY CLICK, ESQ. .
CRUfc REYNOSO, ESQ.
MIGUEL MENDEZ, ESQ. •
California Rural Legal Assistance
1212 Market Street
San Francisco, California 94102
Tel: (415) 853-4911
STAN LEVY, ESQ.
STANLEY W. KELLER, ESQ.
Beverly Hills Bar Association
Lav; Foundation
300 South Beverly Drive
Beverly Hills, California 90212
Tel: (213) 553-6644
Attorneys for
CHARLES JONES, ESQ..
Los Angeles Legal Aid
Foundation
1819 West Sixth Street
Los Angeles, California 90017
Tel: (213) 484-9350
ELLEN CUMMINGS, ESQ.
Legal Aid Society of Alameda
County
2357 San Pablo Avenue
Oak1and, California 9 4 612
Tel: (415) 465-3833
Petitioners
Of Counsel:
Mario Obledo
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DECLARATION OF SERVICE BY MAIL
I, WILLIAM II. HASTIE, JR.-, certify under penalty of
perjury that on this 20th day of June, 1972/ I deposited in the
United States post office at San Francisco, a true and correct
copy of the instant Petitions with Memorandum of Points and
Authorities in Support thereof and Appendices with postage pre
paid thereon to the respondents:
State Bar of California (2 Copies)
Committee of Bar Examiners
thereof and the
Board of Governors
thereof
601 McAllister Street
San Francisco, California 94102
Hon. Evelle J. Younger, (1 Copy)
Attorney General
Office of the Attorney General
Federal Court House Building
Sacramento, California 95814
Executed on June 20, 1972, at San Francisco,
California.
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ROBERT L. GNAT 2D A, ESQ.
SIDNEY . : • ■NOLI> T r* T r \y...JE 1, ESQ.
ALBERT F . MORENO, ESQ. '
J. .ANTI--!0:F/ kli t ESQ.
JO ANN CHiAN DLE R, ESO.Public Advocates,' Inc.
433 Turk Street
San Francisco, California 94102
Tel: (415)- 441-8850
TERRY J. HATTER, JR., ESQ.
ABBY 5OVER, ESQ.
HAROLD HART-HIS3RIG, ESQ.
LORETTA SIFLEETES, ESQ.
Western Center on Lav & Poverty
1709 West 8th Street
Los Angeles, California 90017
Tel: (213) 483-1491
IlARfY CLICK, ESQ. .
CRUZ REYNOSO, ESQ.
MIGUEL MENDEZ, ESQ.
California Rural Legal Assistance
1212 Market Street
San Francisco, California 94102
Tel: (415) 363-4911
STAN LEVY, ESQ.
STANLEY W. KELLER, ESQ.
Beverly Hills Bar Association
Lav; Foundation
300 South Beverly Drive ■
Beverly Hills, California 90212
Tel: (213) 553-6644
Attorneys for Petitioners
IN THE SUPREME COURT OF
HENRY ESPINOZA, LAURA H. HOLT, )
JIMMY D. LOFTON )
NORTHERN CALIFORNIA CONFEDERA- )
TION OF BLACK LAW STUDENT AS- )
SOCIATIONS, CHICANO LAW STUDENTS )
ASSOCIATION (CALIFORNIA), NA- )
TIONAL ASSOCIATION FOR THE AD- )
VANCEMENT OF COLORED PEOPLE )
(WESTERN REGION), MEXICAN-AH- )
ERTCAN POLITICAL ASSOCIATION, )
NATIONAL ASSOCIATION FOR.THE )
/ADVANCEMENT OF COLORED PEOPLE. )
(SAN FRANCISCO BRANCH), ' )
ALAN EXELROD, ESQ.
MICHAEL MENDELSON, ESQ.
Mexican-American Legal
Defense and Educational•Fund
National Office
145 - 9th Street
San Francisco, California 94103'
Tel: (415) 626-6196
CHARLES JONES, ESQ.
Los Angeles Legal Aid
Foundation
1819 West Sixth Street
Los Angeles, California 90017
Tel: (213) 484-9550
ELLEN CUMMINGS , ESQ'.
Legal Aid Society of Alameda
County
2357 San Pablo Avenue
Oakland, California 94612
Tel: (415) 465-3833
Of Counsel:
Mario Obledo
3 STATE OF CALIFORNIA
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TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE
sup re; '.e court of the state of Ca l i f o r n i a:
Petitioners, HENRY ESPINOZA, LAURA M. HOLT,
JIMMY D. LOFTON, NORTHERN CALIFORNIA CONFEDERATION OF BLACK LAW
STUDENT ASSOCIATIONS, CHICANO LAW STUDENTS ASSOCIATION (CALIFOR
NIA) , NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
(WESTERN REGION), MEXICAN-AMERICAN POLITICAL ASSOCIATION, NA
TIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (SAN
FRANCISCO BRANCH), MEXICAN-AMERICAN BAR ASSOCIATION, THE LEAGUE
OF UNITED LATIN-AMERICAN CITIZENS AND THE AMERICAN G.I. FORUM,
and each "of them petition this Court for a Writ of Review of the
actions of Respondents, and/or a Writ of Mandate directed at
Respondents and each of them, and/or an application of the rule-
making power directed at Respondents and each of them, and by
this verified petition allege as follows:
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INTRODUCTION' *
Petitioners see); to improve the method by which applicants* Ijto the practice.of lav; are screened for competence, to up grade and
up-date the training process for attorneys, and to apply to the
selection process the same minimal legal standards which lawyers
have imposed upon other occupations in our society. In its present
form the written California General Bar Examination is virtually
worthless as a selection device, since 98% of the graduates of
accredited California lav; schools who take the examination eventu-
ally pass it. The legislature recognized the dubious effectiveness
of the bar examination when after WW II and the Korean War, it
exempted 367 veteran graduates of accredited schools from the bar
exam requirement. Among those 367 persons are leaders of the pro
fession, including a member of the Board of Bar Examiners, a senior
partner in the largest law firm in northern California-, and the
principal senior partner in one of the largest law offices in San
Francisco and the leading labor arbitrator .in- the state. Moreover,
it can hardly be said that the bar is an effective screening device
when an applicant within the last three years successfully passed
the bar after failing it on twenty previous occasions. Although
the bar fails to assure competence and does not even attempt to
affirmatively train anyone, it is highly effective as a device for
keeping the legal profession an overwhelmingly Caucasian institu
tion.
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Accordingly, petitioners assert the legal right to have the
present California General Bar Examination— a racially discrimina
tory barrier which admittedly has no demonstrated validity as a
testing mechanism and which has never been shown to havê any rela
tion to competence as an attorney - replaced with a professionally
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validated examination or a clinical alternative. The latter would
be of greater educational significance for both applicants and the
profession as a whole while offering more protection to the public.
All individual petitioners have already been awarded degrees from
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California law schools accredited by the COMMITTEE OF BAR EXAMINERS
OF THE STATE BAR OF CALIFORNIA.
' . Ill
Petitioners' claims involve materially undisputed facts ana
questions solely of law. At Boalt and UCLA Law Schools, both
nationally acclaimed and the only two outstanding law schools in
California with significant numbers of minority groups graduates,
63% of the Blacks and Mexican-Americans were failed on the August
1971 examination, while only 15% of non-minorities (i.e., Anglos)
were failed. The results after two exam performances of the same
graduates showed that failure on the bar was 11 times more likely
for minority graduates than Anglos, 52% not having passed for
minorities as compared to 4.9% for Caucasians. The California Bar
Examination thus has a grossly discriminatory impact perpetuating
the shortage of minority attorneys; percapita, there are 35 times
as many Anglo lawyers as Mexican-Americans. .
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The discriminatory impact of this unverified barrier to the
profession goes -far beyond the statistics. Every minority group
person who struggles through an undergraduate university and then
three years of repeated examination in lav; school, is a symbol of
hope for his community, and a statement that minority groups can
achieve justice by working within the'legal system. Petitioners
here, like most minority group law students, are highly visible
and are watched closely by their neighborhoods and minority group
communities. The chilling effect on minority group aspirations by
*refusing to admit them to the practice of law is incalculable.
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Respondents here have been relatively indifferent to the
effect which the negative device of a written bar exam has had on
minority groups. Although professions and businesses of all kinds
now gather and keep racial statistics, the Bar has steadfastly
refused to do so even after being informed of their importance.
Worse, after being told of the discriminatory effect of the exami
nation, the Bar has taken the position that substantial revision
is not within their province. Respondents have also refused to
have the legal profession abide by the same minimal and reasonable
standards which they have insisted that every other profession and
trade adhere to. The result is that respondents are disobeying the
very same rules and law which they would, as lawyers, have the
courts and government impose on other professions.
IV
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The established ca.se law concerning employment discrimination
is directly applicable to the Bar Examination. The Bar Examination
is an employment selection device which is racially discriminatory
in effect without the constitutionally redeeming value of being
related to the actual job of being a lawyer. A determination of
failure on the examination precludes petitioners and those
similarly situated from the right to earn a living and to serve
'their communities. But there are constitutional rights and freedoms
infringed upon other than the right to equal employment opportunity:
the* rights of petition, speech, assembly, and counsel. These
latter freedoms are of crucial importance to organizational
petitioners as representatives of a wide cross-section of the
Black and Chicano communities of California.
VII
Petitioners ask for relief which will benefit not only the
groups that they directly represent, but the profession as a
whole. All petitioners ask is that the Bar be required to assume-
an affirmative obligation for the training a'nd evaluation of
accredited school graduates so that-they can serve the community,
rather than relying on a negative and un-validated weeding-out I
process which does not even achieve its stated purpose. In short,
the relief which petitioners ask would result in all lawyers being
better trained. The present system on the other hand, eliminates
only a very small percentage of graduates with a speculative, slow,
cumbersome ,• unproven, and unprofessional testing mechanijsm which
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itself causes grave financial loss to applicants and law firms
and deprives minority grQups of their hope for effective expres
sion through the. legal process. 'w "' 'VJ
.... VIII ■ - .
PARTIES
Petitioner HENRY ESPINOZA is a Mexican-American male
who has applied for admission to the practice of law in California.
He (1) is a citizen of the United States (2) is over 21 years of
age; (3) is a bona fide resident of the State of California; (4)
has, prior to studying law, completed four years of college edu-
a
cation as evidenced by his receipt of the Baccalaureate Degree
from San Diego State College; (5) has graduated and received a
Juris Doctor Degree from the University of California at Los
Angeles School of Law, an institution accredited by the COMMITTEE
OF BAR EXAMINERS; and (6) is of good moral character. Petitioner
was failed by the COMMITTEE OF BAR EXAMINERS on its February 1972
exam. Petitioner is the former President of the first year class
of UCLA Law School and the former student body President of the Lav;
School. Petitioner has had extensive experience as a law student
affiliated with a Legal Services Program and with a private
practitioner. Due to petitioner’s inability to take the bar exam
in August 1971 and failure on the February 1972 exam he has been
unable to obtain employment in the legal profession. Petitioner
represents himself and all others of his ethnic heritage similarly
situated. Petitioner is a well known and respected figure in the
East Los Angeles Chicano community. IIis financial difficulties
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with regard to the bar exam and his subsequent failure are well. K
known and discouraging to his community. [See PET. EXH. 1]
IX
.Petitioner LAURA M. HOLT is a black female who has
applied for admission to the practice of law. in California. She
(1) is a citizen of the United States; (2) is over 21 years of
age; (3) is a bona fide resident of the State of California; (4)
has prior to studying law, completed'four years of college educa
tion as evidenced by her receipt of the Baccalaureate Degree from
Los Angeles Pacific College; (5) has graduated and received a
Juris Doctor Degree from the University of California, Berkeley,
Boalt Hall School of Law, an institution accredited by the COMMIT
TEE OF BAR EXAMINERS, and (6) is of good moral character. Peti
tioner was failed by the COMMITTEE OF BAR EXAMINERS on the
February 1972 bar exam. Petitioner was employed for 8 months by
the office of the Attorney General of the State of California and
most recently by the private Beverly Hills law firm of William
Gaines Hill, Inc. Due to the action of the COMMITTEE OF BAR EX
AMINERS in failing petitioner on the February 1972 bar exam, she
was terminated from her employment. Petitioner and her family are
highly active well known members of the Los Angeles Black community
Her failure to receive a license to practice law is a source of
frustration for that community. Petitioner is believed to be the
first female of her race to have successfully completed three
years at Boalt and graduated. Petitioner represents herself and
all others of her race similarly situated. [See PET. EXH. 2]
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X
Petitioner JIMMY D. LOFTON is a Black male who has
applied for admission' to the practice of law in California. He
(1) is a citizen of the United States; (2) is over 21 years of
age; (3) is a bona fide resident of the State of California; (4)
has, prior to studying law, completed four years of college edu
cation as evidenced by his receipt of the Baccalaureate Degree
from the University of San Francisco in 1965; (5) has graduated
and received a Juris Doctor Degree from the University of
California, Berkeley, (Boalt Hall) a law school accredited by the
»COMMITTEE OF BAR EXAMINERS AND (6) is of good moral character.
Petitioner was failed by the COMMITTEE OF BAR EXAMINERS on the
February 1972 bar exam. Petitioner is now and has been for the
ipast 10 months employed in the Legal Department of Pacific Gas and
Electric Company, a large California Corporation. However, Peti-
jtioner has suffered a demotion to the investigative section and
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substantial salary decrease as a result of the determinations of |
the COMMITTEE OF BAR EXAMINERS. Petitioner has been active in
iCivil Rights and community activities in the Bay Area for the last
10 years. During this time he has become well known and highly
respected as a lay advocate. The refusal of the COMMITTEE OF BAR
EXAMINERS to certify him for . licensing has been a deep disappoint
ment and source of concern for the community which he serves.
Petitioner represents himself and all others of his race similarly
situated. [See PET. EX1I. 3]
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Petitioners, NORTHERN CALIFORNIA CONFEDERATION OF BLACK
LAW STUDENTS ASSOCIATION (hereinafter BLACK LAW STUDENTS) is an
organization of Black law students enrolled at Northern California
Law Schools. The Confederation and its member associations initiate
and carry out various programs aimed at increasing the number of
Black law students enrolled in Northern California Law Schools,
supplementing the legal instruction received by such students, pro
viding lay advocate and law clerk services to the Black community,
and ending discriminatory practices still existing within the
prdfession. The organization represents more than 200 Black law
students in Northern California. It is anticipated that almost all
members of the Black Law Students' will apply for admission to
the practice of law in California. Approximately 25% of said
membership, 1972 graduates, have already made such application.
Thus, the certification and admission process .for licensing is of
paramount interest and importance to its membership.
XII
Petitioners, CHICANO LAW STUDENTS ASSOCIATION, CALIFORNIA
CHAPTER (hereinafter CHICANO LAW STUDENTS) is an organization
of Mexican-American law students present in schools throughout
California. The association is devoted to increasing opportunities
for Mexican-Americans to attend lav; school, providing a greater
number of Mexican-American attorneys to serve the local needs of
California's large Mexican-American communities, supplementing the
legal education received by dts membership wherever necessary, and
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combating discrimination that erects obstacles to the entry of
qualified Mexican-Americans into the legal profession. Its member
ship exceeds 200 students through the State. It is anticipated
that very many if not all members of the Chi.cano Law Students will
apply for admission to the practice of law in California. Approxi-^
mately 25% of its membership, 1972 graduates, have already made
such application. Thus, the certification and admission process j
to the practice of law is of great interest and importance to the
organization and its membership.
XIII
5 Petitioner, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
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COLORED PEOPLE, Western Region, (hereinafter NAACP-Regional) is
an organization devoted to fighting discrimination as it occurs
against Black People and improving the quality of life for Black
individuals in the 11 Western States which compose its jurisdic-
• . . . . Ition. It has been particularly active in the legal arena partici-
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pating in numerous instances of litigation directed at vindicating
the rights of Black people through the judicial process.
X!V
Petitioner, MEXICAN-AMERICAN POLITICAL ASSOCIATION
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(hereinafter MAPA) is a broad-based political association having
its constituency in the Mexican-American community. As such, it i
is greatly concerned with all problems of the Mexican-American
citizens but particularly those involving the fundamental consti-
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tutional rights of its constituents. Foremost among those problems
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are a lack of sufficient legal services and the discriminatory
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Americans into various professional fields, including the law.\
• •••. • • XV - ........ ... ... .... ...'* t
Petitioner, NATIONAL’ASSOCIATION OF ADVANCEMENT OF i
COLORED PEOPLE, San Francisco Branch (hereinafter NAACP-S.F.)
Iis a San Francisco based organization whose membership is largely
drawn from the Black community of -San Francisco. NAACP-S.F. has
actively fought racial discrimination which degrades the quality
of Black people's lives. It has been particularly concerned with
attempting to vindicate the rights of Black people through the
*judicial process.
XVI
Petitioner, MEXICAN-AMERICAN BAR ASSOCIATION is an estab
lished association of Mexican-American attorneys throughout the
State of California. The association is concerned with the legal
problems of the Mexican-American community in particular as they
pertain to the inadequacy of legal services. It has consciously
and actively undertaken efforts to encourage'the entry of qualified
Mexican-Americans into the practice of law..̂
XVII
Petitioner, LEAGUE OF UNITED LATIN AMERICAN CITIZENS
is a multi-state membership organization concerned with the civil
rights and social problems of the Mexican-American community in
California and the South Western part of the United States. The
Petitioner has been active in the legal arena in defending the
rights of members of the Mexican-American and Spanish-surname
barriers which'presently impede the entry of qualified Mexican-
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community.
Petitioner, AMERICAN G.I, FORUM is the largest Mex.ican-
American veterans organization in the nation'. Petitioner has been
very active in advancing the rights of Mexican-Americans in the
courts. In its efforts to obtain legal redress for members of the
Mexican-American community, Petitioner has had cause to be concerned
about the small number of Mexican-American attorneys admitted to
practice in California.
XIX
i Respondents are the COMMITTEE OF BAR EXAMINERS OF THE
STATE BAR OF CALIFORNIA, BOARD OF GOVERNORS OF THE STATE BAR OF
CALIFORNIA, and THE STATE BAR OF CALIFORNIA. Purusant to
California Bus. & Prof. Code § 6064, the COMMITTEE OF BAR EXAMINERS
is charged with certifying to the Supreme Court of California for
admission to.the Bar those applicants found fit to practice lav;.
In order to determine which applicants shall be certified, the j
respondent COMMITTEE inter alia administers a written test known as
the California General Bar Examination as authorized by Section 111
and 112 of the Rules Regulating Admission to Practice Law and Bus.
& Prof. Code §§ 6046 and 6060. Respondent BOARD OF GOVERNORS is
: „ . |the governing body of the STATE BAR OF CALIFORNIA; as such, it is
empoweri-d to establish a COMMITTEE OF BAR EXAMINERS for the examin-j
ation of all applicants for admission to practice, administration .
of the requirements for admission to practice, and certification
to the Supreme Cpurt for admission to practice. Calif. Bus. £ Prof.
\'
XVIII
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XX
JURISDICTION . *.
Petitioners invoke the original jurisdiction of this
Court pursuant to Article VI, Section 10, of the California Con
stitution; Section 1085 of the Code of Civil Procedure; and Rule
59 of the Rules of Court on Review ..of State Bar Proceedings.
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XXI
As hereinafter more fully appears, respondents have denief
• u 1and continue to deny the equal employment and due process rights
Iof individual petitioners and the rights to counsel, freedom of
association and petition for redress of grievance's of organiza
tional petitioners. These are riahts which are secured by the
IConstitution of the United States and the Constitution of the
State of California. Said .unlawful • denial of rights and violations'
of law raise issues affecting four and a half million California
minority residents. The rights of all graduates of California
accredited law schools to a legitimate, jobrvalidated, non-arbitrar;.)I
and non-discriminatory licensing system for the legal profession
. ‘ Iare especially violated. As hereinafter more fully appears,
Petitioners have no plain, speedy, or adequate remedy in the
ordinary course of lav.', and there are exceptional circumstances
making it necessary that this Court accept original jurisdiction
of this matter.
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Code §§ 6010 and 6046.
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XXII
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Petitioners also invoke the original jurisdiction of
this Court pursuant to § 6066 of the Business and Professions Code
which permits any person whom the COMMITTEE.OF BAR EXAMINERS j
refuses to certify to the Supreme Court for admission to the prac-
tice of law to have said denial reviewed by the Supreme Court.
California Bus. and Prof. Code § 6066.
XXIII
Petitioners, lastly, invoke the original jurisdiction of
' ithis Court based on its inherent power to establish the rules and
; Iprocedures which govern the legal profession and admission to
the practice of law in California.
XXIV
RESPONDENTS' UNLAWFUL DENIAL
OF PETITIONERS' RIGHTS TO
EQUAL PROTECTION OF THE LAWS
Petitioners ESPINOZA, HOLT and LOFTON, having satisfied
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all other pre-requisites for admission to the practice of law in
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California, took the California Bar Examination on February 22, 23
and 24, 1972.
XXV
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On or about May 15, 1972, Petitioners ESPINOZA, HOLT
and LOFTON each received written notification from respondent COM-
j
MITTEE OF BAR EXAMINERS that he or she had failed to pass the »t
California Bar Examination and, therefore were not eligible to be
certified to the Supreme Court for admission to the 'practice of lav:.
No other reason was given for such denial and no other reason for
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denial existed at that time or at the present time'.
........... ,r. XXVI
The February, 1972, Bar Exam had a racially and. ethnic
ally discriminatory effect against Black and- Mexican-American
examinees, including petitioners ESPONOZA, HOLT and LOFTON herein.
XXVII
The discriminatory effect- of the February, 1972, Califor
nia Bar Examination represents part of a continuing pattern of
racial and ethnic discrimination by said Bar Examination.
(A) According to a survey of the August, 1971 examina
tion only 44% of the Black and Mexican-American graduates of re
sponding accredited law schools passed the examination compared to
76.4% of the non-minority graduate-applicants.
(B) At UCLA and Boalt Hall, which graduated over half
of the minority students, the passing rate was 37% for Blacks ana
Mexican-Americans and 85.0% for Anglos, i.e. non-minorities.
(C) The Boalt Hall class of 1969 showed a pass rate for
minorities of 14% on the first try, 28% after the second try; and j
57% on the third try. The comparable rate for Anglos graduates
was 73% for the first try and 91% for the second.
(D) In the years 1967, 1968 and 1969, less than 50° o_
Black graduates (from a majority of the accredited California law ■
schools) who took the California Bar Examination-passed after two
attempts. Meanwhile, between the years of 1954 and 1969, 76.9%*■ ’ •
of all graduates of accredited California law schools passed the j
California Bar Examination on the first attempt. Furtheimore,
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.n the specific period of 1968 through 1969 90% of ail graduates
>f accredited- California lav; schools had passed the Bar Examination
ifter tv’O attempts.
!n sum, Respondents' determination that individual petitioners failec
:o pass the California Bar Examination is part of an ongoing raciall’
iiscriminatory effect which denies licensing to Blacks and Chicanos
it a rate twice that for Anglos. This-is so even when statistics
.re construed in a light most favorable to respondents, i.e. based
>n comparative passing rates as opposed to comparative failure rates.
XXVIII
Individual petitioners have each suffered substantial
inancial loss as a direct result of the determination of the
IOMMITTEE OF BAR EXAMINERS that they had failed the Bar exam and the
esulting exclusion from the licensed practice of lav;.
XXIX
Petitioners have made due and timely demand upon respon-
,ents. • Respondent COMMITTEE OF BAR EXAMINERS was advised by counsel
or petitioners in September, 1971, that the results of California
,ar Examinations pjrior to that examination administered in August, "
971, had a discriminatory effect against Black and Mexican-American
pplicants, and, that to be consistent with the Equal Protection
lause of the Fourteenth -Amendment to the United States Constitution
nd Due Process requirements, respondents should either abandon use
f the Bar Examination in its present discriminatory and unvalidated
orm as a screening device or validate the Examination in accordance
ith applicable legal requirements and acceptable professional
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standards for test construction and use.
XXX
In addition, Petitioners have specifically made timely
lemand upon respondents in.a letter of May, 1972, requesting alter-
ition of the arbitrary and discriminatory written bar examination
irocess. [SEE PETITIONERS EXHIBIT 26]
XXXI
Despite this knowledge, respondents refused and continue
;o refuse to perform even the initial and most- rudimentary steps
.n the validation process. Moreover, respondent proceeded to ad-
sinister a_ similar examination, the February, 1972, California Bar
'.xamination, which had an even greater discriminatory effect. In
.he face of this, respondent has announced its intentions to continue
:o screen applicants by use of the Bar Examination.
XXXII
Respondents have neglected and refused to attempt to
’alidate the Bar Examination although it has an opportunity to do
;o under almost laboratory conditions. Three hundred and sixty-seven
367) World War II and Korean War veterans were admitted to practice
aw without ever tailing the California Bar Examination, pursuant to
•us. & Prof. Code §§ 6060.5, 6060.8 (now repealed). Defendant could
dminister the Bar Examination to these attorneys, make judgments as
o their competence, and then correlate, test scores with level of
ompetence to ascertain whether or not the -Bar Examination actually
oes separate the competent from the incompetent. Respondents have
efused to take even this minimal step. '■
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Individual Petitioners have been denied equal protection
f the laws in violation of the Fourteenth Amendment to the United
tates Constitution because they have been denied certification to
ractice lav; as a result of their failure to pass the CaliforniaI '
ar Examination, an unvalidated testing device which has been shown
o discriminate unfairly against applicants of their ethnic group.
XXXIII
WHEREFORE, Petitioners, on behalf of themselves and others
imilarly situated pray as hereinafter stated:
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SECOND INCLUDED PETITION
The petitioners on behalf of themselves and all others
similarly situated,
RESPONDENTS' UNLAWFUL DENIAL OF
PETITIONERS RIGHTS TO DUE PROCESS OF LAW
Re-allege and reiterate all of the allegations contained
_n paragraphs I through XII and XIX through XXXII inclusive, of the
^irst Petition herein.
: II
Individual petitioners were denied the right to practice
Law because of their failure to pass an arbitrary, .unreasonable,
md costly examination that has and had no demonstrable rational
relation to competence to practice lav;. This is especially so in
_ight of the burdensomeness, subjectivity, and failure to measure
orucial skills involved in the present system and the wealth of other
iLess onerous and more beneficial devices available to test competence
\s a consequence of the above individuals have been denied due
^recess of law in violation of the fourteenth amendment to the
Jn.ited States Constitution and /article I § 13, Cl. 6 of the Calif
ornia Constitution, and Lav; Student petitioners anticipate the denial
of such rights in the immediate future.
Ill
The California Bar Examination is a written test the
stated purpose of which is to measure an applicant's competence to
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practice law. Respondent's have no other lawful interest in
devising and’administering said Examination. Respondents have com- JI
plete discretion to formulate the examination under Rules -Regulating
Admission and Practice Lav? §111-114 except that the exam must be
written. Applicants, including petitioners ESPINOZA, IIOLT, LOFTON,
BLACK LAN STUDENT AND CHICAUO LAN STUDENTS herein, are required to
answer essay and objective questions: bn the following legal subjects:
Civil Procedure, Conflicts of Laws, Constitutional Law, Contracts,
Corporations, Crimes & Criminal Procedure, Equity, Evidence, Propert /
and Torts. Applicants have the option of answering questions on
Community Property, Federal Income and Gift Taxation, Trusts and
Estates, and Wills and Successions.
IV
The format of the California Bar Examination is somewhat
similar to many law school examinations which petitioners HOLT,
ESPINOZA,LOFTON, BLACK LAW STUDENTS and CHICANO LAW STUDENTS, and
all applicants for admission to practice must negotiate successfully
if they are to graduate from an accredited lav/ school. By gradua
tion from these schools petitioners have already demonstrated the
competence which such tests may indicate. Moreover, the Bar
Examination is administered over a three day period.while law school
examinations are spaced out over a three year period. Beyond the
contrast bn time-frame, there are other extraneous factors in the
limited time situation: an applicant's endurance, his ability to
"cram" "black letter" legal principles in a short time, and the
quality of his bar review course. Consequently an intensive,
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3.7
hree day Bar Examination is highly suspect as an accurate- measure
if an applicant's fitness to practice lav? in comparison to three
ears of lav: school education and testing.
V
The California Bar Examination as presently constituted
s very limited as a device to test even a part of the full range
if skills needed for competent legal practice. It in no v:av tests
egal research ability or skill in oral advocacy. In addition it •
[oes not consider psychological, social,’emotional or personal
:itness: capacity to negotiate; adeptness in the use of the proced-
iral*mechan.isms of our legal system, or the ability to form and
levelop successfully the attorney-client relationships. All of these
ire crucial if the attorney is to serve the client .and public in a
irofessional manner.
VI
A final bar examination is.not necessary to screen granu
les of accredited California lav: schools. That function is per-
iorned by the lav? school admission process and the law school itself
implications for admission to law school have risen dramatically in
recent years. For instance, at Stanford Law School in 1964, 1029
versons applied for 155-160 places in the entering class; in 1972,
(867 persons - a four-fold increase - applied for the same number of
nlaces. As a result of the great rise in numbers of applicants for
idmission to law school, competition for places is substantially
;ecner as demonstrated by the higher Legal Aptitude scores and under-
jraduate grade-point averages of entering classes. In 1969, the
iverage Legal Aptitude score of the'entering class at Stanford was
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63 (out of a possible 800); thirteen years later, the figure was
'19. The average undergraduate grade point average for Stanford's
altering class in- 1959 was 2.91 (just below a "B"); in 1972 , the
iverage was 3.72 (just below an "A"). Thus, only the most qualified
persons even enter accredited California lav; schools.
VII
Recent historical information shows that the Bar Examina-
:ion is totally unnecessary for graduates of accredited California
jav7 Schools. Nearly all of those who graduate from such schools are
competent in respondent's own terms, since, between World War II
*:nd 1970, 98% of those graduates eventually passed the California
Jar Examination if they were able financially to take it repeatedly.
.VIII
In addition to its other inadequacies and redundancies
is alleged herein the California Bar Examination is a costly device.
. . !ŝ well as the expenses of administering and grading the examination ;
. !/hich the State must bear, the Bar Examination necessitates a sigm- ̂
Ticant financial investment for applicants in fees to take the exam-
i[nation and tuition in bar preparation courses. Petitioners ;
CSPINOZA, HOLT and LOFTON, BLACK LAW STUDENTS, CHICANO LAW STUDENTS [
ind other applicants also individually suffer lost wages and costs
reading as high as $12,500 because of the long time lag before tests
are graded, results posted, and applicants finally admitted to
practice. ;
IX
Respondent has at its disposal a myriad of less onerous,
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ess discriminatory and more effective ways to measure competence
o oractice 1'nw for accredited law school graduates, Such alterna- |i, i.ives in large part would depend upon successful graduation from an j
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ccredited law school accompanied by a clinical-type training' program
,r evaluation period. A sample of such alternatives might be:
A. A mandatory extern program between the second and third
■ears of law school leading to automatic admission to the Bar upon
[uccessful graduation.
B. A program similar to the above but also requiring
ittendance at a State Bar sponsored practical training program for a
:wo-vfeek period after graduation and for a three—day session one
'ear after graduation.
C. Alternative 'A1 except admissions would be conditioned
:pon the successful preparation and handling of a misdemeanor trial
mder supervision within six months after graduation.
D. A program which incorporates all or some combination
>f the requirements of A, B, and C above.
E. A mandatory practical training institute for two months
ifter graduation conducted in cooperation with the State Bar and the
iccredited law school. Upon successful completion of such a program,
idmission to the Bar would be automatic. • * l
F. A one-year commitment to working with-legal services op
>thor programs directed at underrepresented communities and lower
;o middle income groups. Conditional admission to the Bar would
:ome after four months of successful performance and would be followd
ry permanent admission at'the end.of'one year's successful performan
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G. Automatic admission to the Bar upon graduation from an
.accredited California lav; 'school. Such admission would be condi
tioned upon acceptable performance for one year, or its equivalent
as certified by an experienced attorney and determined by the State
Bar.
H. Automatic admission to the Bar upon successful'gradu
ation from an accredited California law school.
I. Certification by licensed attorney, judge, or law
school dean of acceptable performance as an attorney for a one-year
period. Such a period could include summer jobs or part-time jobs
*
prior to graduation. But such certification would not become
iffective until successful graduation.
J. Any one or any combination of the above coupled with a
ion-discriminatory, validated selection device.
K. Any combination of the above.
X .
Respondents' use of an unnecessary arbitrary redundant
examination which puts a premium on non job-related skills, which
fails to test numerous crucial job skills and-'which has no demon-\
strated rational relationship to the interests of the state, in the
race of rising standards of excellence in law school admissions and
less onerous alternatives, constitutes a denial of due process.
•WHEREFORE, Petitioners pray as hereinafter stated:
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Organizational petitioners on behalf of themselves,
their membership and the Black and Chicano communities of the
State of California,
I
RESPONDENTS' UNLAWFUL DENIAL OF THE
CONSTITUTIONAL EIGHTS OF ORGANIZATIONAL
PETITIONERS AND INDIVIDUALS IN THE BLACK
AND CHICANO COMMUNITIES OF CALIFORNIA.
Reallege and reiterate all of the allegations contained
in paragraphs I through VII, XI through XXIII, and XXVII through
XX^II, inclusive, of the first petition herein.
II
Nearly one-quarter of California's population is either
Black o.f Mexican American. Only 2% of the attorneys in California
are members of these minority groups. While there is one Anglo j
attorney for every 450 Anglo Californians, there is only one Black i
attorney for every 3100 Black Californians and one Mexican Ameri
can attorney for every 1 5 , 900 Mexican American Californians.
Ill
By discriminating against minority•persons, the
California bar examination perpetuates the shortage of minority
attorneys. First of all, it absolutely exludes from the practice j
of law many Blacks and Mexican-Americans who have-chosen law as
a profession and been appropriately trained. Secondly, awareness
of the discriminatory effect of the Bar Examination discourages
many minority persons from pursuing a career in law; and thirdly,
THIRD INCLUDED' PETITION
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.knowledge of this first effect has a direct impact on the ability
of minority group and persons to fully exercise and protect their
legal rights.
IV '
The shortage of minority attorneys means that minority
citizens must entrust their legal problems almost exclusively to
Anglo attorneys. This jeopardizes and often prevents the develop
ment of any effective attorney/client relationship due to the
following: the differing customs and mores of the majority and
minority clutures; the latent as well as apparent tensions and
*hostilities between majority and minority groups; the differing
residential locations and geographical concentrations between Angle
attorneys and minority clients; and at times, the absolute language
barrier which exists between the two.
V
The shortage of minority attorneys and the resulting
difficulty for minority persons in forming (1) an effective relatic:
ship with their attorneys and (2) in fully communicating legal
grievances, prejudices the constitutional rights of Black and
Mexican-American citizens in both civil and criminal areas: the
right to petition for redress of grievances under the First
Amendment to the United States Constitution; the right to effective
assistance of counsel under the Sixth Amendment to the United
States Constitution; and the right to due process under the
Fourteenth Amendment to the United States Constitution.
///
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VI
As noted supra, respondents were asked by petitioners
:o take steps to validate the California Bar Examination as' a
screening device for applicants to the practice of lav? or, in the
rlternative, to abandon it until minimal professional and legal
standards are met in devising a selection process. Respondents
refused and have announced their intention to continue to use the
California Bar Examination in its present form to examine applicants
~o the California Bar. In short, repeated requests and demands have
?een made on respondents to revise their arbitrary discriminatory
md harmful licensing procedure. 'Respondents answered that they
rave no such plans.
VII
Petitioners have no further administrative remedies to exhaust and
io other prompt, speedy, or' adequate remedy at lav;.
WHEREFORE, Petitioners ESPINOZA, IIOLT and LOFTON, on be-
lalf of themselves and all others similarly.situated, pray:
1. That they be certified forthwith to the Supreme Court
For admission to the practice of lav? in the State of California;
2. For reasonable attorneys fees;
3. vor the costs of this action;
.4. And for such other relief as this court in its
aisdora shall deem necessary.
WHEREFORE, Petitioners, NORTHERN CALIFORNIA CONFEDERATE:
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IF BLACK LAW STUDENT ASSOCIATIONS, CHICANO LAW STUDENTS ASSOCIATION
(CALIFORNIA), NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE (WESTERN REGION)', MEXICAN-AMERICAN POLITICAL ASSOCIATION,
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (SAN
FRANCISCO BRANCH), MEXICAN“AMERICAN BAR ASSOCIATION, THE LEAGUE OF
JNITED LATIU-AMERICAN CITIZENS AND THE AMERICAN G.I. FORUM, pray:
1. That this court declare the California General Bar
Examination as presently constructed and administered to graduates
3f accredited California law schools to be in violation of the due
process and equal protection clauses of the Fourteenth Amendment to » •
*;he United States Constitution and in violation of Article 1 § 13
:l. 6 of the California Constitution;
2. That, in order to create the least disruption in the
Licensing process for attorneys in this state, this court issue its
peremptory Writ of Mandate directing that the Committee of Bar
Examiners for a period of one year from the date of such Writ,
rertify to this court for admission to the practice of law in Calif
ornia all those applicants found by the Committee of Bar Examiners
;o be twenty-one years of age or over, to be a' bona fide resident of
ihe State of California, to be of good moral character, to have met
ihe pre-legal educational requirements set forth in Bus. & Prof. Code
3 6060(e), and.to have received the Juris Doctor or Bachelor of Laws
legree from an accredited California law school.
3. That, in order to develop a selection and evaluation
levies which is constitutional and not racially discriminatory, this
pourt do any one of the following:
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' a) Issue its peremptory Writ of Mandate directing
he Committee•of Bar Examiners for the future to construct a profes-
lionally validated general bar examination. Such validation shall
:onform with the guidelines established by the'Equal Employment
>pportun.ity Commission and the developing standards of the lav; in
:he area of non-rac.ially discriminatory testing.
b) If the Committee of Bar Examiners should be
mwilling or unable to develop an examination such as"a)" supra in
:he immediate future, order the Committee to develop a procedure
'hereby they shall certify to this court for admission to the pract- *
.ce of lav; in California all those applicants found by the Committee
>f Bar Examiners to be twenty-one years of age or over, to be a bona
fide resident of the State of California, to be of good moral
:haracter, to have met the pre-legal educational requirements set
forth in Bus. & Prof. Code § 6060(e), to have received the Juris
)octor or Bachelor of Laws degree from an accredited California lav;
school, and to have completed some alternative to a final bar
examination in the nature of but limited to those alternatives set
forth in allegation IX of the Second Included/Petition herein.
c) Appoint a distinguished panel of members of the
3ar as Special Masters to develop an alternate form of evaluation to
:he present bar examination which meets the constitutional standards
if the United States and the State of California.
4. That, as an alternative to 1 through 3 supra, this
:ourt declare that a prima facie case of racial discrimination in
iffect has been found against the present bar examination and appoint
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, Special Master or panel of such for one year to oversee the con
struction and development of an alternative form of evaluation as a
>re--requis.ite to certification to this court for admission -to. pract
ice in order to remedy the suspect racial classification which re
sults from the present examination.
5. For reasonable attorneys' fees;
6. For costs of this action;
7. For such other relief as this court in its wisdom
shall deem necessary.
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VERIFICATION
. *
I, JIMMY D. LOFTON, under the penalty of perjury
declare: ' • .
That I am one of the petitioners in the above
entitled action; that I have read the foregoing petition
for Writ of Review and/or V7r.it of.Mandate and know the
contents thereof; that the same is'true of my own knowledge.
Executed at San Francisco, California, this 16th
day of June, 1972.
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2G
ROBERT L. GWAIZDA, ESQ.
SIDNEY M. WOLENSKY, ESQ.
ALBERT F. MORENO, ESQ.
J. ANTHONY KLINE, ESQ.
JO ANN CHANDLER, ESQ.
Public Advocates ,■ Inc.
433 Turk Street
San Francisco, California 94102
Tel: (415) 441-8350
TERRY J. HATTER, JR., ESQ.
ABBV SOVEN, ESQ.HAROLD HART-NIBBRIG, ESQ.
LORETTA SIFUENTES, ESQ.
Western Center on Law & Poverty
1709 West 8th Street
Los Anqeles, California 90017
Tel: (213) 483-1491
MARTY GLICK, ESQ. .
CRUZ REYNOSO, ESQ.
MIGUEL MENDEZ, ESQ.
California Rural Legal Assistance
1212 Market Street
San Francisco, California 94102
Tel: (415) 863-4911
ALAN EXELROD, ESQ.
MICHAEL MENDELSON, ESQ.
Mexican-American Legal
Defense and Educational Fund
National Office
145 - 9th Street
San- Francisco, California 94103
Tel: (415) 626-6196
CHARLES JONES, ESQ'.
Los Angeles Legal Aid
Foundation
1819 West Sixth Street
Los Angeles, California 90017
Tel: (213) 484-9550
ELLEN CUMMINGS, ESQ.
Legal Aid Society of Alameda
County
2357 San Pablo Avenue
Oakland, California 94612
Tel: (415) 465-3833
STAN LEVY, ESQ.
STANLEY W. KELLER, ESQ.
Beverly Hills Bar Association
Lav? Foundation
300 South Beverly Drive
Beverly Hills, California 90212
Tel: (213) 553-6644
Attorneys for Petitioners
IN THE SUPREME COURT OF
HENRY ESPINOZA, LAURA M. HOLT,
JIMMY D. LOFTON
NORTHERN CALIFORNIA CONFEDERA
TION OF BLACK LAW STUDENT AS~
SOCIATIONS, CHICANO LAW STUDENTS
ASSOCIATION (CALIFORNIA), NA
TIONAL ASSOCIATION FOR THE AD
VANCEMENT OF COLORED PEOPLE
(WESTERN REGION) , MEXICAN-AM
ERICAN POLITICAL ASSOCIATION,
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE .
(SAN FRANCISCO BRANCH),
Of Counsel:
Mario Obledo
THE STATE OF CALIFORNIA
)
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MEXICAN-AMERICAN BAR ASSOCIATION,)
THE LEAGUE OF UNITED LATIN- )
AMERICAN CITIZENS AND THE )
AMERICAN G.I. FORUM, )
. ' * , )Petitioners, )
)vs. )
)THE COMMITTEE OF BAR EXAMINERS )
OF THE STATE OF CALIFORNIA, )
THE BOARD OF GOVERNORS OF THE )
STATE BAR OF CALIFORNIA, AND )
THE STATE BAR OF CALIFORNIA, )
)Respondents. )
)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PETITION FOR WRIT OF REVIEW AND/OR WRIT OF
MANDATE AND/OR APPLICATION TO EXERCISE RULE-
MAKING POWER
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I.
II.
Ill.
TABLE OF CONTENTS
,TABLE OF AUTHORITIES
INTRODUCTION
Page
• *.
i
STATEMENT OF FACTS .......... iv■ •
BECAUSE THE ISSUES PRESENTED ARE OF EXTRAORDINARY
IMPORTANCE FOR THE PRACTICE OF LAW IN CALIFORNIA
AND FOR THE PUBLIC AND REQUIRE PROMPT RESOLUTION
THIS COURT SHOULD EXERCISE ITS ORIGINAL JURISDICTION . 1
RESPONDENTS' CONTINUED EXCLUSION OF RACIAL AND ETHNIC
MINORITIES FROM LEGAL PRACTICE EY A DISCRIMINATORY
EXAMINATION WHICH IS NOT JOB RELATED CONSTITUTES A
DENIAL OF EQUAL PROTECTION AND DUE PROCESS ...... . 7
A. The California Bar Exam Discriminates On The
Basis of Race Against Black And Chicano Law
School Graduates, Establishing A Prima Facie -
Case of Racial Discrimination Which
Respondents Have Not Even Attempted To Answer ... 7
B. Based On The Undisputed Facts In This Case
the~clTlifornia Bar Exain Is Not Related To The
Actual Practice Of Lav; ...... ...............
1 Respondents Have The- Burden Of Proving
That The Bar Exam Is Job Related ....
2. The Only Constitutionally .Acceptable
Method Of Showing That The Bar Exam Is
Job Related Is Through Professional
Validation ____
3. Respondents Admittedly Have Failed To
Meet Their Burden Of Showing That the
Bar Exam Is Job Related Because They
Have Not Even Attempted To Validate
The Exam
BOTH THE STATE AND FEDERAL CONSTITUTIONS FORBID THE
EXCLUSION OF PERSONS FROM THE PRACTICE OF LAW BY AN
ARBITRARY EXAMINATION WHICH VIOLATES THE PROTECTIONS
AFFORDED BY DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT. . ....... 23
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A. The Committee of Bar Examiners Is Bound By
The ?•■ andate Of The Due Process Clause Of
Beth .The Fourteenth Amendment To The United
States Ccnstitution_ And Article I Section
13, Clause 6, Of The California Constitution ... 23
B . The Plaintiffs Have A Fundamental And
Const!tut-iona 1 ly Protected Right To
Practice The Profession Of Law. .......... 24
C. The Present Bar Examination Requirement
Tllegally Impairs The Plaintiffs 1 Right
To Practice Law Because It Does Not Have
A Rational, Real, Or Substantial Relation
To The Purpose It Seeks To Accomplish. ..... 25
Page
D. Defendants Have Less Onerous Alternatives To
* The Present Bar Examination Which Would Serve
Equally Well or Better To Insure Competence
In The Legal Profession. ..... 3 2
IV . THE BAR -EXAMINATION DEPRIVES BLACK AND CHICANO
CALIFORNIANS OF LEGAL SPOKESMEN, IN VIOLATION OF
THE FIRST, FIFTH, SIXTH AND FOURTEENTH AMENDMENTS,
BY ARBITRARILY EXCLUDING MINORITIES FROM THE
PRACTICE OF LAW. ...... 36
A. Exclusion of Blacks And Chicanos From Law
Practice Deprives Minority Citizens Of Their
Right To Petition For Redress Of Grievances
Under The First Amendment. ..... 36
B • Exclusion Of Blacks And Chicanos From Law
Practice Deprivos Minor1 1ies Of Rights To
Effective Assistance Of Counsel. . ..... 43 V.
V. BECAUSE THE PRESENT WRITTEN BAR EXAM RESULTS IN A
CLASSIFICATION INFRINGING ON THE FUNDAMENTAL RIGHT
TO PRACTICE LAW WITHOUT SERVING ANY COMPELLING
STATE INTEREST AND DISREGARDING LESS ONEROUS'
ALTERNATIVES PETITIONERS HAVE BEEN DENIED EQUAL
PROTECTION
A . The Rlght To Practicc Law Is A Fundamental
Flight Within The Meaning Of The Equal
Protoot.ion C1 ause Of The United States And
California Constitutions. ... 48
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VI.
B . The Disc rimlinato r y Re su 1 ts Of The Bar
Exam Create A Suspect Category Within
The Moaning Of The Equal Protection And
Due Process Clauses Of The United -States
And California Constitutions.. .. ...... 4 9
C. The Par Exam _Is_Not Necessary/ Or Even
Particularly Useful In Furthering Any
Cornye11ing State Inherest Especially In
Light Of The Alternatives Available. ...... 50
Page
CONCLUSION
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t a b l e o f a u t h o r i t i e s
CASES
Alabama v. United States, 304 F.2d 583
(5th Cir. 1962) ; aff'd, 371 U.S.37 (1962) ........ ................
Aptheker v. Secretary of State, 378 U.S. 500 (1964) . . . . ........
ft.rmstead v. Starkville Municipal Separate
School District, 325 F. Supp. 560 (¥7""
D. Miss. 1971) aff'd and rev1d in part
___F2d___, No. 71-212 4 , June 9, 19/72(5th Cir. ) .....................-
Arrington v. Mass Bay Transp. Auth.,
306 F.Supp. 1355 (D.Mass.1969) . . . .
*
Baird v. State Bar of Arizona, 401 U.S.
1/ (1971).......... T T ...........
Baker v. Columbus Municipal Separate
School District, 32 4 fTsuppl 70lT’(N .A. Miss. 1971) ........ . . . . . . .
Salff v. Bar Examiners, 1 Cal. 2d
789 (1934) . . . ............... ..
iodic v. Connecticut, 401 U.S.
371 (1971)• . . . . . . •........
rotherhood of Railway Trainmen v.
Virginia, 377 U.S. 1, (1964) T . . . .
rown v. Craven, 424 F2d 1166 (9th Cir. 1970)........................
rydonjack v. State Bar, 208 Cal.
439 (1929") . . . . ........... ..
utchers Union Co. v. Crescent City
Co., 111 U.S. 746 (1884) . . T T . .
PAGE NO.
. 7
. 32
7,8,13,17
8,9,13
3,25,48
8,13
1
38
37,3 9
45
A
25
rinaton v. Rash, 380 U.S. 89
(19 6 5) . . ........... ' . . 50
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2(
ter v. Gallagher, 337 F.Supp. 626,
3 E . P . D.',(82 05 (D.Minn.1971) , af f 1 d
in part, revld in part, 452 F2d
315 (8th Cir. 1971) , modified en-
banc 452 F.2d 327 (8th Cir. 1972),
cert den May 24 , 1972.................................... 8,9,12
13
CASES (cont'd) PAGE NO.
stro v. Beecher, 334 F.Supp. 930,
(D. Mass. 1971) , aff'd and modi
fied F2d , 4E.P.D. 117783,
Nos. 71-1180, 71-1395, 71-1396
April 26, 1972, (1st Cir).. . .
hance v. Board of Examiners and Board
of Education, 330 F.Supp. 203 (S.D.
NY. 1971), aff'd, F2d , 4 E.P.D
1(7756, No.71-2021, April' 5, 1972
(2nd Cir . )............ ............ . 8,10,14
15,16,19
50
offey v. Braddy, No. 71-44-Civ.J, May
19, 1971, (M.D. Fla.) ............
ounty of Sacramento v. Hickman, 66
Cal. 2d 841 (1967) ..............
q v. Blumstein, US , 40 U.S.L .W . 4269
(March 21, i.972)............ . ,42,49
-isenstadt v. Baird, US___40 U.S.L.W
4304 (March 22, 1972) ............ 33
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CASES (cont'd) PAGE NO
Gideon v. Connecticut, 372 U.S. 335
(1963)..................... . . . . . . . . . .......... 43
Greene v. Committee of Bar Examiners,
4 Cal. 3rd 189, (1971) ..................... 1,2
Griswald v. Connecticut, 381 U.S.
479 (1965) " ..................... ................ .. 33
Griggs v. Duke Power Co. 401 U.S. 424 (1971) . . ........... 8,9,12
Hallinan v. Committee of Bar Examiners,
65 Cal. 2d 447 (1966) .................................... 1,2 .
Harper v. Vircrinia State Board of
Elections, 383 U.S. 663 (1966)........................... 39,41,42--------- 49
Hawkins v. Town of Shaw, 437 F2d
1286 (5th Cir. 1971).......... ................ * . . . . 7
Hildebrand v. State Bar of Calif.,
36 Cal. 2d,. 504 (1953)................................... 38
\ ’
In re Antazo, 3 Cal. 3d 100, (1971)........................ 49
In re Shattuck, 208 Cal. 6 (1929)..........................5,49
In re Investigation of Conduct of
Examination For Admission to Prac
tice Law, 1 Cal. 2d 61 (1934) ............................1
Johnson v. Avery, 393U.S.483
(1968)................................... / ............... 39
Keenan v. Board of Law Examiners of
the State of N.C. 317 F.Supp.
1350 (D.N.L. 1970) ............................ ‘. . . . .24,29,45
Kinnev v. Lenon, 4 25 F2d 2 09 (9t.h
Cir. 1970) ................ 4 3,4 4
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Konlngsberg ,v. State Bar .of
California , 353 U.S. '252 (1957) ..................... 25,26,39
32,48
Loving v. Commonwealth of Virginia,
388 U.S. 1, (1967) . . . ............... .............. 50
CASES (cont'd) ' PAGE NO.
McDonald v. State Bar of Calif., '
22 Cal. 2d 768 (1943) ........
McLaughlin v. State of Florida,
379 U.S. 184 (1964) ............
March v. Committee of Bar Examiners,
67 C2d 718 (1967) ............
Morrow v.- Crisler, F.Supp. , 4
E.P.D. *ii 7 5 6 3 , No. 4717, Sept. 29,
1971 (S.D. Miss) . . . ........
Mulane v. Central Bank and Trust Co.,
339 U.S. 306 (1950) ............
NAACP v. Alabama, 377 U.S. 288 (1963)
v. Button, 371 U.S. 415 (1962)
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33
33,40
enn v. Stumpf , 208 F.Supp. 1238
(N.D. Cal. 197 0) .......................*'............. 8
eoplc v. Lamson, 12 F.Supp. 813
(N.D. Cal. 1935), appeal den,
80 F. 2d 388 (9th Cir. 1936)..................... . . . 23
owe 11 v. Alabama, 287 U.S. 45 (1932).................... 43
eston v. State Bar, 28 Cal. 2d 643
(1946) ................................................ 4
rdy & Fitzpatrick v. State of Calif.
' 71 Cal. 2d 566 (1969)................... .............. 10,49
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CASES (coni'd) PAGE NO.
Rafaelli v. Committee of Bar Examiners,
S.F. 22841 (May 24, 1972) . . . .
Ratti v. Hjnsdale Raceway Inc. , 2 4 9
A2d 859, 109 N.H. 270* (1969) 25
Reynolds v. Sims, 377 U.S. 533 (1964) . . . . . . . . . . . 39
Rogers v. Alabama, 196 U.S. 226 (1904) ..................... 46
Sabat v. State Bar, 3 Cal. 2d 615
(1935) ..................... ,
Sandoval v. Rattikan, 395 S.W. 2d 889,
(C.Civ.App. Texas, 1965) cert den
385 U.S. 901 (1966) . . . . . . T T .
Serrano v. Priest, 5 Cal. 3rd 615 (1971) . . .............
Shapcro v. Thompson, 394 U.S. 618 (1969) ................
Shelton v. Tucker, 364 U.S. 479 (1961) ...................
Smith v. Texas , 34 S.Ct. 681 (1914) . . . . . . •........
Strauder v. V7. Virginia , 100 U.S. 303
(1880) ................ ..
Swain v. Alabama, 380 U.S. 202 (1965) ................ ..
ichware v. Committee of Bar Examiners 353 U.S. 232 (1957).
Sate v. Short, 491 U.S. 395 (1971)
’akahashi v. Fish and Game Comm1n ,
334 U.S. 410 (1948) . . 7 T T " .
• • •
'raux v. Raich, 239 U.S. 33 (1915)
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49.
49
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46
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24,26,27
48
49
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Inited Mine Workers v._I111nois State . •
Bar Association , 3 8 9 U.S. 217 (1967)'...................38,39
Ini tod States v. Bd. of Ed._ of City of
Bessemer ',. 39 6 E. 2d 4 4 ('5 th cTr. , 19 68) .............. 7
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CASES (cont'd) PAGE NO.
Westbrook v. Mihaly, 2 Cal. 3rd 765 (1970) ' x
vacated on other grounds, 403 U.S. 915
<1971> ..................................
Western Addition Community Organization v.
Alioto, 330 F.Supp. 536 (N.D. Cal. 19 71) ,
__F.Supp.___ _>• 4 E.P.D. 117663, No. 70-1335,
Feb. 7, 1972 (N.D. Cal). . ‘....................... 8,10,11
19
Williams v. Illinois , 399 U.S. 235 (1970) . . . . ........ 51
Wise v. Southern Pacific Co., Cal. 3rd 600
(19 7O') . . ...........~ ........ ............ .. 38
CONSTITUTIONS, STATUTES and REGULATIONS ' '
Jni^ed States Constitution
Fourteenth Amendment ................................. 1,23,24, . 29,32,36
43,47,48
Sixth Amendment • • • • • ....................... 36,43,47
Fifth Amendment ................................. 36,43,47
First Amendment ................ • ............... n,36
alifornia Constitution
Article I, Section H ........ ........................ 48/49
Article I, Section 13, Clause 6 ....................... 23,29,3236
Article I, Section 2 1 .................. .............. 48,49
Article VI, Section 1 0 ................................. 2
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Statutes
Calif. Bus. and Prof. Code § 6046 . ... . . . . . . . . 3,23
Calif. Bus. and Prof. Code § 6060 .................... 1
Calif. Bus. and Prof. Code § 6060 (h) .......... v,3
CONSTITUTIONS, STATUTES and REGULATIONS (cont'd) ' PAGE NO.
Calif. Bus. and Prof. Code § 6060.5 (Repealed 1959) . . . 20,30
Calif. Bus. and Prof. Code § 6060.-8 (Repealed 1959) . . .20,30
Calif. Penal Code § 1367 .......... .................... 45
Calif. Rules of Court 59 (b) ........ .............. !
Calif. Rules Regulating Admission To Practice, Rule XI
"Section 112 ................... ..................... 18
*
Calif. Rules Regulating Admission To Practice, Rule XI
Section 1 1 3 ........ .'................................. 21
Calif. Rules Regulating Admission To Practice, Rule XI
Section 114............................................. v
Equal Employment Opportunity Commission
Guidelines on Employee Selection
Procedures , 29 C.F.R. 1607 et. seq................... ii , 12,30
29 C.F.R. 1607.8 ............ •................. 12
Title VII Civil Rights Act of 1964, 42
U.S. §2000 (e) et seq................................. 9,10
ARTICLES, JOURNALS, and REPORTS
Cooper and Sobol "Seniority Testing Under
Fair Employment Laws: A General Approach
to Objective Criteria in Hiring and Pro
motion," 82 Ilarv. L. Rev. 1958 (1969) 18
ARTICLES, JOURNALS, and REPORTS (cont'cl)
3
2 Plotkin, Dr. Lawrence, "Coal Handling, Steam
fitting Psychology and Law", 27 American
Psychologist.5, March '1972, p. 204 . . .
4
5
U.S. Civil Rights Commission Mexican-Americans
and the Administration' of Justice in t*1?.--..
Southwest U.S. Gov't Printing Office (1970)
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ti
INTRODUCTION '
This case challenges a clear and serious violation of our
nost precious constitutional rights - free expression, freedom from
racial discrimination, right to counsel, access to the courts, and
squal employment opportunity. The essential facts are undisputed.
[n California today there are only 450 Black lawyers and 195 Chicane
(Mexican-American) lawyers . .I/ This means that less than 2% of the
35, 125 attorneys^./ licensed by the state are minorities, while one
5ut of every four Californians is a Black or Mexican-American indivi-
iual..~/ The written General Bar Examination of the State Bar of
California has directly helped to perpetuate this gross under-repre
sentation, to the immeasurable detriment of minority communities.
\s minorities have finally been admitted to law schools in increasing
lumbers, they find that their hopes are dashed by the Bar exam. A
sample projection indicates that by their third attempt, only 2%
>f the Anglo applicants will have failed the bary but 23% of all
Clacks -and Chicanos will have been refused the right to practice
;heir professions, creating a disparity of over eleven to one. But.
lere, much more than the employment interest i-s at stake.
1/ The Black lawyers' statistic was obtained from the Naticr.
Car Foundation, the research arm of the National Bar Association.
['he Chicano lawyers 1 statistic was obtained from the Mexican-American
Car Association of California
2/ The overall statistic was obtained- from the State Bar
association. !. . . . |
3/ According to 1970 Census statistics, California's popula-
:ion includes 3.1 million Mexican-Americans and 1.4 million Blacks
>r 23% minorities. > •
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When minority group persons are discriminated against in
becoming lawyers, First Amendment freedoms, the right to counsel,
;he right of access to the courts, and the very.right to participate
effectively in the democratic process are all infringed upon. This
.llegal testing scheme is particularly onerous because there are a
/ide variety of nondiscriminatory alternatives ( such as training/ • 4
)r intern programs) which would protect the public better than the
totally non-job-related written examination. Virtually all of the '
ilternatives provide constructive ways (father than a negative weedin'
>ut device) of assuring competent lawyers. In addition, the test is *
:learly unlawful under a conventional and technical employment dis-
:rimination analysis, making it unnecessary for the court, if it
o chooses, to decide this case on broad constit.uti.onal issues.
Although the California Bar is discriminatory in effect,
■he exam has never been professionally validated or empirically ex-
mined in any manner to determine if, in fact, it is a valid selection
evice. The law concerning such discrimination and access to employ-
lent is clear. Where the effect of a written examination is statis-
ically discriminatory (i.e., for whatever reason, a disproportionate!
igh percentage of minority persons fail), a complainant has by thosej
acts alone made out a prima facie case. The test will then stand
f, and only if, those giving the written examination can justify
ts existence in a very specific manner - by showing that the test has
een professionally validated in the manner set out in.the cases and
n various regulations such as the EEOC guidelines. Moreover, once
lie discriminatory effect is shown, the burden of proof is on those
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defending the test. Here, the Bar has not even attempted to carry
that burden. The California Bar Examination, which is admittedly
without validation and discriminatory in effect, is clearly
illegal under this well-established doctrine'set forth in the
employment cases.
Finally, we now know that performance statistics reported
by the COMMITTEE OF BAR EXAMINERS show that between World War II
and 1970 98% of the graduates of accredited California law schools
eventually passed the bar if they were wealthy enough to take it
repeatedly, and that even when hundreds of graduates are admitted
*
without a bar exam, as happened in the period after World War II
and the Korean War, no known adverse effect occurs. In light of
these facts, the bar promotes no useful purpose nor promotes any
legitimate governmental interest, and this evaluation device,
which impairs our most fundamental rights, becomes a purely
speculative and arbitrary way of restricting access to the legal
profession. V.
V. See Petitioners' EXHIBIT 28 RE admissions of
respondent Committee of Bar Examiners.
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STATEMENT OF FACTS
Despite the State Bar's deliberate refusal to keep racial
tatistics, even after being requested to do so, there is no dis- iiute concerning the material factual issues be.fore this Court.
IIassing of the California Bar examination'is an absolute prerequisite
!o admission to the practice of law even for those persons who suc-
iessfully graduate from college and then complete a rigorous three-
ear program at an accredited California law school. It remains a
'rerequisite even though 367 persons have been admitted-to the prac-
ice of lav; in California without taking the bar exam and with no
dvefse effects.
A
The exam itself extends over three days. It is entirely
ritten and consists of at least 20 essay questions which pose
ypothetical legal problems in 10 subject areas. —^ The applicant
ust answer 16 of the questions, and obtain an average score of
0 on each in order to pass.;!/ A graduate of an accredited law
4/ Sixteen questions [a number equal to the number that
nst be answered] concern the legal areas of torts, contracts, civi.
rocedure, property, corporations, constitutional law, evidence, cor
licts, crimes and criminal procedure, and equity. The extra or so-
alled "optional" questions involve community property, wills and
uccession, trusts and estates, and federal income and gift tax. T;
pplicant who plans to serve tire middle and upper income communities
nd has received an appropriate course of instruction will have a
ecided advantage over the applicant who has concentrated on the lee
roblems of low-income and minority peoples. The latter group canr.:
option out" by relying on his specialized preparation in areas like
rban renewal, welfare, landlord-tenant, consumer fraud, environment
aw, employment discrimination, or administrative law.
5/ Traditionally the bar has included 24 essay questions o:
hich 20 must be answered. However, in the February 1972 Bar, only
0 essay questions were administered of which 16 had to be answered,
n addition, one full day was spent on an experimental short-answer
ultiple choice section. This newer system is also being used for i
uly Bar exam.
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\school becomes eligible to take the exam for the first time during
|the summer following his graduation. There is no limit to the number
Iof times which an unsuccessful candidate may take the bar exam;
however, lie cannot practice lav; until he pass'es. Bus. & Prof. Code,
Section 6060 (h). Rules Regulating Admission to Practice Law,
Rule XI § 114 states that if an applicant fails the bar examination |
three times he shall not be re-examined except for good cause shown.
Since there are instances of persons taking the bar up to 20 times,
it would appear that "good cause" can be shown quite easily.
In a California based survey £/ conducted among the deans
of the 13 law schools (then) accredited by the A.B.A. the following
facts were ascertained:
In the years 1967, 1968 and 1969, 26 Blacks
took the bar exam and only 11 or 42.3% of them
passed on the first try.
The Committee of Bar Examiners reported a 75.9%
passage rate on the first, try for accredited
law school graduates from 1954'to 1969.
Black graduates from these same schools averaged
a 46% pass rate by the second try (12 out of 26).
- In 1968-69, 90% of all students graduating from
an accredited lav; school passed the bar exam by
the second try (1126 out of 1241).. j
6/ Conducted in m.id-1970 with the assistance of Edward C.
Halbach, Dean' of the Boalt Hall School of Law, by Michael R. Ashburr.c
Esq., currently acting director of Berkeley Neighborhood Legal Ser
vices. Replies were received from -eight of the thirteen law schools.
See attached affidavit of Michael Ashburne, PETITIONER'S EXHIBIT 10.
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A later spot survey conducted by the NAACP Western
;egion confirmed the Ashburne study. U Statistics concerning the
oalt Hall 1969 graduates showed that of the seven Black and Chicano
raduates only one successfully .passed the bar on the first attempt,
inly one of those who took the exam again passed on his second at-
.empt and two others passed on the third try. In brief, there was
mly a 14% minority pass rate on the first attempt; a cumulative 28%
ate for the second attempt, and a 57% rate for the third attempt.
'he comparable rate for non-minorities was 73%. (159 passing of.204)
or the first time and 91% (185 of 204) for the second time.
*• Most recently, between September 1971 and May 1972 Public
*
advocates -and the Mexican-American Legal Defense and Educational
’und conducted another survey, basing it on the recent August and
February exams. The data on minorities was largely obtained by
:ommunication with the deans of the 17 law schools in California
tccredited by the COMMITTEE OF BAR EXAMINERS. J!/ General performance
lata was later certified accurate by the COMMITTEE OF BAR EXAMINERS.
vne results showed that: •'
7/ See PETITIONER'S EXHIBIT 11
8/ Responses were received from 13 of the 17 law schools.
icGeorge School of Law, University of the Pacific; University of
alifornia School of Law, Davis, University of California School of
aw, Berkeley; Stanford University Law School; University of Califor-
ia, Hastings College of the Law; Golden Gate College School of Lav;; i
niversity of Santa Clara School of Law; University of California
chool of Law, Los Angeles; University of Southern California Law
enter; Loyola University School of Law, Lo's Angeles; University of
an Diego School of Law; Beverley College of Law, and'Cal Western
ollege of Law. Also see PETITIONER'S EXHIBIT 12.
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(a) At UCLA and Boalt Ha'll, representing more than
half of the minority graduates of accredited
.schools , • the minority passing rate was 36.8%
as opposed to 84.5% for Anglos.-
(b) Overall for the August, 1971 exam only 43.8%
of the Black and Chicano graduates passed as
opposed to 76.8% of the Anglo graduates.
Based on the most significant statistical sample of min-
>rity presence, sub-section (a) supra, a projection indicates that
>8% of the Anglo applicants will have passed by the third attempt
s->ut only 77% of all Blacks and Chicanos. In fact the performance at
Joalt Hall for the February 1972 bar exam suggests the discrepancy
/ill be v/orse. After that exam only 3.5% of the Anglo examinees had
failed to pass while 50% of the Black and Chicano examinees graduatin
_n June had failed. Moreover, COMMITTEE OF BAR EXAMINERS statistics
showed that according to post-WWII statistics virtually every grad-
iate (98%) of an accredited California law eventually passes the
>ar exam if he or she is financially able to continue taking it.
fhe only long term effect of the California Bax exam on the accredit^
Law schools is.exclusion of Black and Chicano graduates.—/
9/ The indirect effect on minority group aspirations
md their hope for orderly social change through lav/ is incalculable,
rn recent years there has been a hundred-fold increase in minority
enrollment*at Hastings College of Law alone. The large number of
minority students entering law school for the first time is evidence
)f hope and confidence in the system of justice. To quash minority
expectations after successful completion of an arduous three-years
>f law school is worse than if hopes were never raised at the outset.
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Additional facts disclose that this initially discrimina- !
tory impact is intensified in several ways. First, minority students
imust take the exam more times than Anglos before they are eventually, f
successful. Thus, the already long period before they make a living
f
is substantially increased. Since Blacks and Chicanos tend to be
' i
substantially poorer than white students, this lengthening of the
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apprenticeship period causes a doubly extreme hardship. Secondly,‘ ♦as a result of the delay, expense and discriminatory nature of
the exam, fewer minority students ultimately pass the exam, continue’
to take the exam, and eventually qualify to practice law in the■* »!State. Thirdly, this exclusion creates a self-fulfilling prophecy:
i
minorities are discouraged from even attempting the practice of lav:
• \and there is a heavy psychological burden of past minority performer.::
which "chills" every minority candidate for the bar. 10/
In sum, the direct effect is that there is one Anglo at-
orney for every 450 Anglo Californians, but only one Black attorney
I
for every 3,100 Black Californians, and only one Chicano attorney feri_
every 15,900 Chicano Californians. Based purely on the undisputed
. [
statistics, the California Bar exam perpetuates and makes permanent
this inequitable disparity without any factually demonstrable
Ijustification.
• 10/ Although courts have long recognized the chilling
effect of restrictive official action, most notably in the free
speech and prior restraint cases, the lav/ concerning chilling effec1
is not one susceptible to precise proof. However, we respectfully
submit that the best evidence of such deterring effect is (a) what
minority groups themselves feel and (b) the statistics on disparate
passing rates between racial groups. See PETITIONER'S
EXHIBITS 5,6>7,3,9,10,20,24,25, and 29.
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Moreover, although the exam is effective in excluding
lacks and Chicanos from practicing law, it has never been shown to
e effective for apy other purpose. The COMMITTEE OF .BAR EX/iMINERS
as steadfastly refused to undertake any sort .'of validation to dis-
over whether the Bar exam in fact serves the purpose for which it
s used - weeding out applicants who are not qualified to practice
aw. Indeed, the COMMITTEE has been-.unwilling even to help gather
,ny racial statistics despite requests to do so at least as early
,s August, 1971. To continue administration of an unvalidated exara-
.nation which is blatantly discriminatory deprives plaintiffs and
AA
:heir class of Equal Protection and Due Process of Lav; and violates
!alifornia's minority citizens' rights to freedoms of petition, as-
iembly and counsel. At the same time, the public is deprived of
tble and conscientious attorneys through an "examination" process
rhich is expensive, time-consuming and fails to accomplish any
.egitimate objective.
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JURISDICTION
I. BECAUSE THE ISSUES PRESENTED ARE OF EXTRAORDINARY IMPORTANCE
FOR TIIE PRACTICE OF LAW IN CALIFORNIA AND FOR THE PUBLIC AND
REQUIRE PROMI-T RESOLUTION, THIS COURT' SHOULD EXERCISE ITS
ORIGINAL JURISDICTION.
Exercise of this Court's jurisdiction is appropriate under
the Business and Professions Code. Bus. & Prof. Code § 6066, pro
vides that any person refused certification to the Supreme Court
for admission to practice may have the action of the Committee of
Bar Examiners reviewed by the Court. See also California Rules
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of Court, Rule 59 (b). The Court has exercised this original juris
diction in many instances. See In Re Investigation of Conduct of
Examination for Admission to Practice Lav/, 1 Cal. 2d 61 (19 34) ;
Balff v. Bar Examiners, 1 Cal. 2d 789 (1934); McDonald v. State
Bar of California, 22 Cal. 2d 768 (1943); Hallinan v. Committee of
Bar Examiners, 65 Cal. 2d 447 (1966) Greene v. Committee of Bar
Examiners , 4 Cal. 3d 18 9 (19 71) .
As in the cases cited above petitioner is seeking a review
of a refusal to grant certification. It is dissimilar only in that
it is a challenge to the present bar examination itself, the corner
stones of the certification process. As such, it directly concerns
all future bar applicants, the 23% of the California population
which is composed of minority group persons, the entire legal
profession, and the public generally. Because the Court has heard
petitions of review based on very individualized and limited issues
such as whether a particular applicant possesses requisite good
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moral character (see Halllnan v. Committee of Bar Examiners, supra;
fGreene v. Committee of Bar Examiners, supra), and whether or not the
tAmerican citizenship pre-requisite for certification is a job-
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related one(Raffaelli v. Committee of Bar Examiners, SF 22841---------------------------------------- (
May 24 , 1972) , we respectfully urge it to entertain this, suit which' # i
has so much broader and more far reaching impact on thousands of
applicants.
Mandamus is an alternative ground for assumption of juris
diction by this Court. Under Article VI, Section 10, of the
California Constitution, this Court has original jurisdiction in *
proceedings for extraordinary relief in the nature of mandamus■
when, as here, "...the issues presented are of great public im-
'portance and must, be resolved promptly." County of Sacramento v.
Hickman, 66 Cal. 2d 841, 845 (1967), and when the Court determines i
"that there is no adequate remedy in the ordinary course of law."
Westbrook v. Mihaly, 2 Cal. 3d 765, 7-73 (1970) , vacated on other :
grounds, 403 U.S. 915 (1971). i
iThe original jurisdiction of this Court is rarely exer
cised. Nevertheless, we respectfully submit "that the instant peti
tion - which presents pure issues of law and involves materially
undisputed facts - is among the limited type of cases in which an
original proceeding in this Court is fully appropriate and indeed
absolutely necessary.
At stake in this suit is whether graduates of accredited
California lay; schools will be forced to take and pass the present
bar examination before being certified to the'Supreme Court for
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admission to practice by the COMMITTEE OF BAR EXAMINERS. (Bus. &
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Prof. Code § 6046.) As such, it involves the right to practice law.I
As the. Supreme Court of the United States has asserted:
The practice of law is not a matter' of grace but
one of right for one who is qualified by his learning
and moral character. Baird v. State Bar of Arizona,
*
401 U.S. 1, 8 (1971), (emphasis added).
Moreover, the constitutional rights of all minority citizens of
California to obtain effective assistance of counsel and to petition
for redress of grievances are bound up here. The interests of the
public at large are inextricably tied to these issues. Thousands
of lawyers, millions of dollars in lost legal time, and our most
fundamental civil rights are involved.
Moreover, in seeking invalidation of the present bar
examination, petitioners are challenging a practice that dates
from 1917. To grant petitioners the relief they desire, a court
would have to void or re-interpret a California statute requiring
the passing of a final bar examination for .certification to the
Supreme Court. See Cal. Bus. & Prof. Code § -6060 (h). Although
petitioners believe that recent cases compel a decision in their
favor (see infra, p. 7 ), this Court has never indicated that
the present bar examination as administered violates either the
federal or state constitutions. Accordingly,_it is simply unrealis
tic to imagine that a Superior Court - or even a Court of Appeal -
would invalidate such a "venerable" practice as the bar examination.
But even if such a result should occur, the COMMITTEE OF BAR
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11
EXAMINERS would no doubt appeal, therefore bringing the matter
before this Court. And, while the appeal is pending, the status
of the bar examination as a prerequisite to certification would
remain in doubt, causing confusion among thousands of applicants,
members of the legal profession, and the public alike.
Should a lower court rule against petitioners' claims,
applicants would feel compelled to prepare for and take the bar
examination. Should this Court then hold the examination violative
of the Constitution, applicants will have lost unnecessarily an
estimated four million dollars in wages and bar examination costs.*
More importantly, minority communities will have lost the services
of their rightful legal spokesmen and advocates.
Thus, this case falls under the rule of Hickman, supra,
and Westbrook, supra, in that the issues are of great public impor
tance and must be resolved promptly, and that there is no adequate
remedy in the ordinary course of law. Additionally,admission to
the practice of law is the peculiar province of the Supreme Court.
This Court alone has the inherent power to admit applicants.
Brydonjack v. State Bar,' 208 Cal. 439, 443/(1929); Preston v. Stati
Bar of California, 28 Cal. 2d 643, 650 (1946). Part of that power
11/ A survey of 1971 Boalt Hall graduates conducted by
Ben ShaftonT law student at Boalt Hall, puts average estimated costsj
in lost wages, bar examination fees, and preparation costs at approxr
imately $2,200 per applicant. If an estimated 1,800 graduates of J
accredited California law schools take the bar exam each year (1,773
such applicants took the summer 1971 bar exam) - the total cost is
approximately $4,000,000. See PETITIONER'S EXHIBIT 23.
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s the ability to exercise the rule-making and standard-setting
■>ov7er over the legal profession. See Sabat v. State Bar of Calif, ,
5 Cal.2d 615 (1935), In re Shattuck, 208 Cal. 6 (1929), and March v-
Committee of Bar Examiners, 67 Cal. 2d 718 (19-67) .
In addition, mandamus in this Court is a suitable proceed
;na to review the constitutionality of the bar examination because
sf the critical public policy issues at stake. The examination is
statev7i.de in geographic scope and was administered to almost 5500
candidates in 1971. One-third of these were graduates of the
accredited schools. The COMMITTEE OF BAR EXAMINERS_is planning to
*administer this examination again as soon as July 24, 1972, and
again within six (6) months. The graduating class which is about tc
take the examination is believed to have twice the number of min
critics as were in- the 1971 class and therefore may be doubly
penalized.
For the state's Black and Chicano communities, the issues
presented herein are of paramount importance to the administration
of justice because barriers to admission to the legal profession
also preclude access to the civil courts and.effective representa— j
tion in criminal matters. Competent and effective counsel are also j
critical to the ability : (1) To organize into legally recognizaols
groups; (2) to draft legislation; (3) to testify and participate ir.
the legislative process; (4) to secure guidance and counsel in j
legal protest: and (5) in general, to realize their full capacity
ns citizens under the Constitutions of California and the United
States. i •
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In s u m, the issues presented here nay v/ell be of far
;rrcator significance than hliose presented on behalf of single |
aind-s: .mini interests li};6 voting. Similarly, without action by
_his court the immediate possibilities of extensive large-scale
II amage to the interests of petitioners, the public and the bar itsel
ire imminent.
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ii
II RESPONDENTS CONTINUED EXCLUSION OF RACIAL AMD ETHNIC
MINORITIES FROM LEGAL PRACTICE BY A DISCRIMINATORY
EXAMINATION WHICH IS NOT JOB RELATED CONSTITUTES A
DENIAL OF EQUAL PROTECTION AND DUE PROCESS
A. The California Bar Exam Discriminates On The
Basis of Race Against Black and ■Chicano Lav;
School Graduates, Establishing 7\ Prima Facie
Case of Raciai Discrimination Which Respondents
Have Not Evon Attempted To Ansv/ar.
Where discrimination is an issue, "statistics often tell
much, and Courts listen." Alabama v. United States, 304 F. 2d 583,
5S6 (5 th Cir. 19 52); a f f' d , 371 U.S. 37. . Accord: Hawkins v. Town
of Shaw, 437 F.2d 1285, 1288 (5th Cir. 1971); United States v. Bd.
of Educ._of City of Bessemer, 396 F .2d 44 , 45 (5th Cir. 1968);
Armstead v. Starkville Municipal Separate School Dist., 325 F. Sups.
560, 569 (N.D. Miss. 1971), aff'd and rov'd in part on other grounds
__ F .2d____No. 7 V-2121 (5 th Cir. June 9, 197 2).
The story told by the state bar statistics is simple: The
exam excludes minority lav/ school graduates from practicing lav/ at
a rate more than twice that for Whites. For example, for June, 1971,
graduates of accredited California lav/ schools with a statistically
significant number of minorities who took the August, 1971, bar exam
85% of Whites passed, while the passing rate for Blacks and Chicanos
was only 37%. In the two schools having the most significant number
of minority students, the two exam effect showed minorities were 11
12/
times as likelv to have failed as Whites.
12/See PETITIONERS EXHIBIT 12., whith particular refsrem
to comparative Drforrnance at UCLA and U.C. Berkeley, the schools
which graduated more than half of the minorities taking the bar £r
;he accredited lav/ schools. or:
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When a ■.so.ciainqly neutral test results in success rates for II
t-ijtes si anificant.lv higher than for non-Whites, the examination is■
Liscriminatory, and violates equal protection unless shown to be
ob related. Arrington v. Mass.'Bay Trnnsp. Auth., 3 06 F. Supp.
35 5, 13 58 (D. Mass. 19 69); Coffey v. Brady No. 71-44-CIVJ (M.D. Fla;--------------_ .♦.971); Chanee v. Bd. of Examlners & Bd. of Educ. of City of New York,
F . 2dS30 F. Cupp. 2.03 . (S.D.N.Y. .1971), aff 'd. , No. 71-2021
[2nd Cir. April 5, 1972); Carter v. Gallagher 452 F .2d 315, 327 (8th
;ir. 1972) cert, den., May 24, 1972; Castro v. Beecher, 334 F.Supp.
)3o (d . Mass. 1971)*/ Armstead v . Starhville Municipal Separate
School Disc., supra; Morrow v. Crisler, No. 4717 (S.D. Miss. Sept.
>9, 197.1); Penn v. Stumpf, 308 F. Supp. 1238, 1243 (N.D. Cal. 1970);.
Pastern Addition Community Organization v. Aliot.o, 330 F. Supp. 536
(N.D. Cal. 1971), F. Supp. , 70-1335 (N.D. Cal. Feb. 7,
L971); Baker v. Columbus Municipal Separate School Dist., 329 F. Sup-i.' - j
106 (N.D. Miss. 1971). See also Griggs v. Duke Power Co., 401 U.S.
124 (1971).
IThe undisputed state bar figures establish a pr.ima facie. II:ase of discrimination. Courts have invalidated examinations when
-he disparity in pass rates between white and non-white applicants
I•>as for less than in the instant case. For example, in Chance v.
3d. of Examiners, supra, tests for the positions of school principal
and other supervisory jobs were enjoined upon a showing that overall
jhitc candidates passed at almost one and one-half times the rate of
success for Black and Puerto Bican applicants. On particular exams.
the onns rate for whites, compared to minority group members, varies
V Rocent.lv affirmed except as to relief and sice of cla-'
Nos. 71-1180, 71-1395 and 71-1396, 4 F.P.D. 7783 (1st Cir. April 26,
1972).
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rom "almost double" to only "one-third greater." Nevertheless, the (• • •
lourt characterized these differentials as a "gross disparity," and ;. ' i
inioined the examinations. In Carter v. Gallagher, suorn, the trial-
. ~ ! lourt voided fire fighter examinations on which Whites fared precise--,
.y twice as well as minorities. The statistics in the instant case
re more glaring in that the success rate for Whites is well over
iouble that for Blacks and Chicanos,' and fundamental interests beside
:he right to equal employment opportunities are here at stake.
Nor is it significant that the .COMMITTEE OF BAR ..EXAMINERS'
.pparently has no discriminatory motive. Under the cases discussed
lerein, the effect of the test, not the intent of the testers, render
:he examination discriminatory. Thus, in. Arrington v. Mass. Bay Tran
uith. , supra, the Court stated:
Although there is no contention of any
intent to discriminate against black or
Spanish-speaking persons by means of this
test, it is fair to say that its imple
mentation produces a de facto racial
pattern of classification adversely affect
in g these minority groups. Whenever
state action is creative of a classifi
cation among its citizens, such that
burdens or benefits flow unequally, that
classification is constitutionally suspect.
(306 F. Supp. at p.,1358.)
jikewise in Griggs v. Duke Power Co., supra, the Supreme Court de-
:lared:
Good intent or absence of discriminatory
intent does not redeem employment proce
dures or testing mechanisms that operate
as "built-in headwinds" for minority groups
and are unrelated to measuring job capability.
(401 II. S. at 432.) 13/
13/
‘continued]
Although Griggs was decided under Title VII of the 1964 ;
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By excluding Blacks and Chicanos at a rate, over twice that
for Whites, the California Bar examination blatantly discriminates
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against minority •applicant*;. Unless respondents demonstrate (in the!
manner specifically set forth in the-cases) that the test is job
related, its continued use violates the Equal Protection Clause.
B . Based On The Undisputed Facts_in This Case
The California Par Bxan Is Mot Related To the
Acl-ual Practice of Law
1. Respondents have the Burden of Proving
That The Bar Exam Is Job Related._____
If an examination is discriminatory in effect, the defend
ant has the burden of justifying the exam as job related. If the
defendant fails to meet this burden, the examination is invalid under!
the Equal Protection Clause.
. Courts haVe required a heavy burden of justification even
A'here just an employment interest is at stake and such fundamental
rights as access to courts or First Amendment Rights are not invo.lvec. i
Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948); Traux v. Raich,'
239 U.S. 33 (1915); Purdy & Fitzpatrick v. State of Calif., 71 Cal.
2d 566 (1969) . •
In Chance v. Bd. of Examiners, supra, where a test for the
selection of school principals was challenged, the Court discussed
the burden of proof at length, stating:
[Continued] 13/ Civil Rights Act, 42 U.S.C. § 2000(e),
et seq., (which at the time applied only to private employers)its
analysis was even then regarded as highly persuasive in cases of
public employment. See Morrow v . Cr.islor, supra, Slip Opinion at
p. 26* Carter v . Gallaeher, supra, Slip Opinion at p. 9; Waco v .
Mioto, p. 2. ■ Subsequently, congress has legislated that Title VII
shall reach public employment.
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[17] e arc. here dealing with racial, not
econon.-i c, discrimination, v;hore even reputed
strict constructionists have joined in the
vice that a 'more stringent standard rtust be
app 1 ied. See Ilarper_ v. Vlrginia State hoard
of; Electjons . . . Where official conduct
discrl’minates as to race, it is "constitution
ally suspect," Bolling v. Sharpe, 347 U.S.
457, 499 .. . subject to "most rigid scrutiny,"
Korenatsu v. United States, 323 U.S. 214, 21C . . .,
and* bears a "very heavy burden of justifica
tion," Loving v. Virginia, 388 U.S. 1, 3 . . .
Vie are satisfied that where, as here, plain
tiffs show that the examinations result in
substantial discrimination against a minority
racial””group qualified to take them, a strong
showing must, he made by the Board that the
examinations are required to measure abilities
essential to performance of the supervisory
positions for which they are given. [citations.]
(330 F. Supp. at pp. 215-216.)
.Iso see, V7estern Addition Community Organisation v: Al.ioto, supra,
30 F. Supp. at 536; Armstead v. Starkvllle Municipal Separate School'
list., supra, 325 F. Supp. at p. 570.
The burden to demonstrate that performance on the bar exam
.s significantly related to competence as an attorney is entirely
,n the respondents. It is undisputed that no effort has been made
:o carry such burden.
2. The Only Constitutionally Acceptable
Method Of Showing That The Bar Exam Is
Job Related Is Through Professional
Val idation ._____ .______________________
To meet the burden of proving that performance on the bar
;>:am is related to competence as an attorney, the respondent
.'OUUITTEE OF BAR EEAUIEERS must produce empirical evidence that the
ixam actually measures the skills necessary for.legal competence,
tat respondents have not used any acceptable method of showing whothe
;he bar exam fairly tests the actual skills required of a practicing
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attorney. They have not net the EEOC guidelines in 'any respect and
have not attempted to comply with the most minimal standards esta
blished in the case lavas. Indeed respondents admit that they are
j
unaware of any information showing the validity of the bar exam.
Vague assumptions, based on the length of time that the test has beer.
Ihsed, or its aunarent relevance to some task required by the job,
/ 14/ ' i
cannot take the place of hard data. ' As the Trial Court stated in*
■
its finding of fact and conclusions of lav; in Carter v. Gallagher, iiNo. 4-70 Civ. 399, 3 Employment Practices Decisions para. 82.05
I* • i(D.C. Minn. Mar.9, 1971), in enjoining a requirement that firemen *
■applicants possess a high school diploma or its equivalent,
Mere surmises by the defendants . . .
cannot justify the use of employment
qualifications which'will have a
discriminatory impact on minority groups.
(3 EPD Para. 8205 at 6678)
i
See Griggs v. Duke Pov;e.r Co., supra, 401 U.S. at 431, 436.
. i»The courts have clearly established that the only consti- !|
tutionally acceptable method of providing such empirical information. tlis through professional validation. "Validity" in this context means
14/ ' j
cf_., Guidelines on Employment Testing Procedures promul
gated by the Equal Employment Opportunity Commission which specifi
cally state: Sec. 1607.8 Assumption of Validity. i
|
a) Under no circumstances will the general reputation
of a test, j.ts author ot its publisher, or casual
reports of test utility be accepted in lieu of evidence
of validity. Specifically ruled out are: assumptions
of validity based on test names of descriptive labels;
all forms of promotional.literature; data bearing on
the frequency of a test's usage; testimonial statements
of sellers, users, or consultants; and other non-
empirical and anecdotal accounts of testing practices
or testing outcomes. 29 C.F.R. § 1607.8 (Cupp. 1971).
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an empirical shoving that the test in fact operatesxto admit only
the competent and to keep out only the incompetent. Phrased differ- . i
ently, validation is defined as the process by which professionals
lverify '(by actual experience and not by assumptions) whether or noi
an examination accurately predicts performance on the job. Courts
have repeatedly voided discriminatory employment examinations where
a showing of professional validation was absent (as it is here) or
inadequate. See Morrow v ._Crisler, supra, Slip Opinion at p. 29;
darter v. Gallagher, supra, decree at p. 4; Arrington v. Mass. Bay
fransp. Authority, supra, 306 F. Supp. at 1359. Even where the job
*in question requires verbal skills and the examination given purports
to test verbal skills, validation is necessary.
In Armstead v. Starkville Municipal Separate School Dist.,
supra, the Trial Court was upheld by the Fifth Circuit when it en
joined a school district from using the Graduate Record Exams (GRE)
to select public school teachers since the exams had not been vali
dated for that purpose. The Court stated:
ETS [Educational Testing Service] has not
conducted any studies that would demonstrate
that the GRE are valid and reliable instru
ments for selecting public sch.ool teachers.
Defendants have not validated the use of
the GRE for this purpose.
The reliability and validity of the GRE as a
means of identifying effective teachers is
unknown. There are no empirical data or
studies which suggest that one may predict
from GRE scores who will be effective public
school teachers. (325 F. Supp. at p. 566.)
3ne might be more likely to. assume that (a) a written examination
substantive materials -like the GRE would be a valid predictor
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)f teaching competence than to assume that (b) a purely written
' ' ■ ' i
jar test is a reliable index- of the broad range of subtle skills
necessary to be an attorney. Yet the former was held unlawful.
The instant case is even clearer than most previous employ-
f
rent cases. Here, not onlv is there guesswork by those giving the
. i-est and an absence of data, but such information as does exist rndi-
'nates that the bar serves no useful purpose, i.e., the 98% pass rate ,
For graduates of accredited schools and the successful performance
nf those admitted without taking the bar after World War II and the
lorean War.
*
* Even when defendants in the cited cases did present some
evidence of attempts at validation (which respondents here do not
nave), courts will , scrutinize their efforts carefully. In Chance
/. Bd. of Examiners, supra, the Court lookcd-behind the defendant
board's assertions that it had validated its exam for school princi- :
pals. The Court enjoined further administration, of the test, stating.
Despite its professed aims, the Board has
not in practice taken sufficient steps
to insure that its examinations•will be
valid as to content, much less to predict
iveness. (330 F. Supp. at p. 219).
Validation usually has four steps. First, testing experts.
malyze the particular job in detail and determine the skills crucial
For success. This is called a "job analysis." In Chance v. Ed. of
Examiners, supra, the Court stated:
Such an analysis requires a study to be
made of the duties of the job, of the
performance by those already occupying it,
and of the elements, aspects and character
istics that make for successful performance.
(330 F . Supp . at p. ?-16 . )
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Similarly in Castro v . Beecher, suora, where Judge W'yzanski enjoined
"urthar use of the exam for policemen because it discriminated
igainst minorities, he found that a future exam would be deemed
>r.ina facie job related only if, inter alia:
Before the examination was prepared, the
Director of Civil Service procured from
the appropriate appointing authorities,
or from a representative selection of them,
a detailed job analysis fully describing
the policeman's job. (334 F. Su p p . at
947)'
Second, professionals must constructs test which measures
:he capabilities previously identified as necessary. As the Court
*_n Chance v. Dd. of Examiners, supra, described this step:
Questions are then formulated, selective
procedures established, and criteria
prepared for examiners' that should .
elicit information enabling them to measure
these characteristics, skills and profici
ency in a candidate and determine his
capacity to do the job satisfactorily.
(330 F. Supp. at p. 216.)
Third, the exam must be administered experimentally to
letermine whether it actually does the job it was designed to do.
i?his is called empirical validation and is done by administering the
:est to a group of applicants, admitting them' experimentally (but
;ith extra supervision, if necessary), without reference to their
V / ' •
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• . ' 15/scores, and later comparing those scores to their job success.
Finally, professional validation is necessary to determine the cut
off or passing score. 'Experts in test construction and the courts
agree that the passing score is an integral part of the test itself.
An I.0. Test for a janitorial position may be valid if the cutoff
score is low enough. Conversely, even a very simple test is likely
w
The Bar had an ideal chance to use a variation of this
method when it admitted hundreds of persons without requiring that
they take the bar exam after World War II and the Korean War, but it
did not do so. Alternatively, the test may. be given to persons al
ready on the job and their grades correlated with ac.tual performance;
This* alternative (and less preferable) method is sometimes called
’'concurrent validity." These methods were discussed in Chance v. 3d;
of Examiners, supra: . .
As Professor R. L. Thorndike lias obser
Whenever a test is being tried for sel
of personnel for some job specialty, i
more desirable that it be validated em
callv. Experimental evidence is calle
to show that the test is in f a c t effec
in discriminating between those who ar
those who are not successful in a part
job. Though it may be necessary under
press of an emergency to rely upon the
fessional judgment of the psychologist
establish the value of a test for pers
selection, this must be recognized as
gap. "
ved:
ection
t is
piri-
d for
tive
e and
icular
the
pro
to
onnel
a stop-
To a lesser extent the val
ination as a means of sele
best suited for a position
or verified empirically by
relative examination score
candidates with their late
job. If there is a signif
between test score:; and la
the examination lias "predi
(330 F. Supp. at p. 216.)
idity of an exam-
cting candidates
may also be checked
comparing the
s of successful
r performance on the
icant correlation
ter performance,
ctive validity."
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to be invalid if the cutoff score were set so high that only a few
could v?.ss.
Moreover, respondents have a much nore difficult job here
than in nost other cases. flost employment te'sts are used to select
the best applicants from a large pool. Hence, those who score
higher must only be bettor at the job than those who score lower.
But in the instant case, the BOARD OF GOVERNORS has the added burden
of showing that the passing grade separates the comoetent from the 16/
incompetent. In a field such as law, where there is no fixed
number of jobs, the only constitutionally legitimate, purpose for
*
establishing a cutoff score is to protect the public from incompe
tents.. The cutoff score must be set so as to exclude only those
candidates who lack the skills necessary to practice law. But in the\
case of the bar exam, no study of any kind has ever been done to
determine if it does this. •
The importance of professionally validating the particular
cutoff score was emphasized in Armstead v. Starkville Municipal
Separate School Dlst,, supra, where a school board required school
teachers to obtain a certain grade on the Graduate Record Examina
tions (GRE) to be hired or rehired. The court stated:
Defendants, in fixing GRE cutoff scores to
be used in the hiring and rehiring of
teachers, did not conduct studies deemed
necessary by recognizing testing authorities
to determine what cutoff score, if any,
would be a valid and reliable measure for
16/
In this connection particularly note Dr. Opton's
ff.idav.it, PETITIONERS EXHIBIT. 13 at p. 12.’ /
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this purpose; nor did defendants conduct
studies on the threshhold question whether
any cutoff score would be used if the GRE
were to be relied upon in hiring and rehiring
teachers and teacher applicants. (325 F.
Suop. at p. 5G7.) 17/
Similary, the language quoted in footnote "17!' frora the Castro v .
Beecher case, is an excellent description of the way the passing
score for the bar exam is determined - without reference to any
18/logical or valid factor. No one among the COMMITTEE OF BAR
EXAMINERS even contends that there was any study.to determine what * I
i
17/
. In Castro v. Beecher, supra, the Court was critical of
the blind selection of a passing score of 70 for a c'ivil service
exam administered to police applicants. The Court enjoined further
use of the exam, declaring:
The,grade 70 was arbitrarily selected without
relation to the difficulty of the examination,
or the number of persons who took the examina
tion, or the number who were expected to get a
grade of 70 or better. (334 F. Supp. at p.
942)
See also Baker v . Columbus Municipal Separate School Dist., supra,
329 F. Supp. at~p. 714 and the excellent article Cooper and Sobol
"Seniority and Testing Under Fair Employment Laws: A General
Approach to objective Criteria in Hiring and Promotion," 82 Harv.
L . Rev. 1958 (1969).
18/The Examiners' own regulations indicate how arbitrary a-
process is the construction of the bar exam. Sec. 112 of Rules
Regulating Admission to Practice Law in California provides the sole'
gfuid. e"lincT: ""The-examination shall be written, and shall consist of
such questions as the Committee may select."
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passing score .indicates competence. The harsh fact is that the cut
off score is a purely arbitrary one. Moreover, there is no dispute
that neither the COMMITTEE OP BAR EXAMINERS nor the BOARD OF GOVER
NORS has even tried to conduct a job analysis,, .a concurrent valida
tion study or an empirical validation study. 'Thus, they have not
met their minimal legal requirements in any substantial respect.
3. RESPONDENTS Admittedly Have Failed To
Meet Their Burden of'Showing That The
Bar Exam Is Job Related Because They
Have Not Even Attempted to Validate
The Exam._____________________________
Even .if they did not have the burden, it is clear that the !
COMMITTEE OF BAR EXAMINERS are proceeding arbitrarily. But when * • timeasured against the stringent standard required by the cases, it is
obvious that the COMMITTEE has failed to meet the most minimal
_ yrequirements. In many other employment discrimination cases, the
. ;defendants had at least made some previous effort., at verifying that
their exam was an accurate predictor of on-the-job performance. See; !I. -Chance v. Board, suora and. WACO v. Alioto, F. Supp. No. 70-j. I
1335, 7. Here, THE COMMITTEE never even conducted a job analysis to1 I. 1I
pinpoint the characteristics necessary for success in law. Yet, as
is discussed infra, even a cursory reading of the exam makes clear
that, at best, it purports to test only a fraction of the skills
needed by a lawyer. .For those abilities which the examination pur
ports to measure, there is utterly no data on the level of skills
necessary to be a lawyer. Nor do we know what level of such abili
ties is necessary to oass the bar at its present cut-off. All of
V Sec footnote 10 supra.
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chese are unknown. Having refused to undertake the essential task
. »
of job analysis, the CO'SUTTEE could not possibly have complied with !J
their second obliaation - construction of an exam which tests the
•' ‘ Itraits previously determined as critical by the job analysis.
It is already admitted by the CO'PUTTEE that it is not ever;
aware of any study showing that success on the exam is in any way
correlated with later success in practicing law. Worse, they have j
leclined to utilize an opportunity to validate the exam under,almost i
"laboratory'- conditions - by administering it to some 367 lawyers
rho, as veterans of World War II and the Korean War, were admitted
19/
co the bar without being required to take the exam ' (Bus. & Prof.
lode, 5§ 6060.5, 6060.8 (repealed 1959)). This group could have been
the control group to determine if success in performance on the exam
20/
■/as related to success in practice.
Finally, (and as a totally independent ground itself suf
ficient to invalidate the exam) defendants have also never conducted
Dr authorized a professional inquiry to determine what cutoff score,
if any, would adequately screen "competent" from "incompetent"
21/
candidates.
19/In an investigation uncovering less than 20% of the
identities of the 367, it was determined that their number included
*t least two state court judges, the outstanding labor arbitrator
in the state, several city attorneys, several partners of the largest
corporate law firms in California and a member of the COMMITTEE OF
3AR EXAMINERS.
20/
Even administering the test to that group at this date
•ould provide some indication of "concurrent validity". See footnote
15.
21/
See PETITIONERS EXHIBIT 13.
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Indeed, defendants, as pointed out supra,- have not even
established any definition of "competent" or "incompetent". Instead
bhev have arbitrarily desicinnted "70" as the passing grade without
2 2 /
mv empirical basis. The passing score on the bar is purely the
iresult of speculation, Year after year, the arbitrary cutoff score I
.. I
)f '70" neatly eliminates approximately half of the aopl-icants. For!** ’ - ** Ii
:he five August Bar exams from 1966 to 1970 the overall passing per- ;
rentage only varied between 49.2% to 56.4% although the number takingi* I:he exam increased almost bv half, rising from 2,254 to 3,182.
In view of the rising quality of law students, as revealet
;y their increasingly high Lav; School Aptitude Test scores and
college grade point averages, the percentage of "incompetent" bar
ipplicants would hardly remain nearly' identical for- a decade or
23/:iore.
In short, the COMMITTEE OF BAR EXAMINERS has made utterly
10 attempt to demonstrate, or even to .determine, the validity of an
examination which is blatantly discriminatory against minority
candidates. Considering that traditionally all graduates of accred-
.ted law schools have e v e n t u a l ly passed, that 367 people have been
idrnitted without taking the bar examination with no apparent adverse
I
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cf. Rules Regulating Admission to Bractice Law in
California, § 113.
23/
See PETITIONERS EXHIBIT 22 '
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effects that skills obviously crucial to a lawyer, such as legal\
research ability and oral advocacy skills, are not even tested and
that approximately the same percentage of applicants passes every
year without regard to the increased selectivity of California's
lav; schools, this seems itself to establish more than a prima facie
case of invalidity of the bar exam. For the reasons listed above
continued use of the present form of.bar exam which has excluded
plaintiffs from the practice of lav; violates the equal protection
md due process rights of individual petitioners, and arbitrarily
deprives the public (and especially the minority community) of
attorneys.
24/
W Admission v;
an already accredited lav;
;tates. Wisconsin is the
the system to be both an
PETITIONER EXHIBITS 15, 1
Supreme Court, member of
Inivors-i tv of Wisconsin L
addition this alternative
accredited lav;- schools.
.ithout the bar exam based on graduation fre:
school is the prevailing practice in four
largest such state and seems to have found
effective and rewarding one. See
6 and 17 in which a Justice of the Wisconsi:
their Board of Examiners-, and Dean of the
aw School•evaluate that system. In
is the one favored bv students in the
See PETITIONERS EXHIBIT 27.
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III. BOTH THE STATE AND FEDERAL CONSTITUTIONS FORBID THE
EXCLUSION OF PERSONS FROM THE PRACTICE OF LAW BY AN
ARBITRARY EXAMINATION WHICH VIOLATES THE PROTECTIONS
AFFORDED BY DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.
Even if the Bar Examination had no discriminatory effect,
it would nevertheless be constitutionally defective as violative of
the due process clause of the Fourteenth Amendment because it depriv.
thousands of persons of crucial rights without any demonstrable
showing of its effectiveness in guaranteeing professional compe
tence. ■
.A . The Committee of Bar Examiners Is Bound By
The bandato Of The Due Process Clause Of
Both The Fourtconth Amendm.cnt To The United
States Constitution And Article I , Section
13, Clause 6, Of The California Constitution.
The Fourteenth Amendment to the United States Constitutionj
provides "...nor shall any state deprive any person of life, liberty]
or property, without due process of lav;; ..." Article I, Section 13j
Clause 6, of the California Constitution provides similar protection;
" . . .nt>r be deprived of life, liberty, or property v7ithout due process
of lav;; ..." This section is in scope and•purpose identical with '
the Fourteenth Amendment to the Federal Constitution. People of
the State of California v. Lamson, 12 F. Supp. 813 (N.D. Cal. 1935), J
appeal denied 80 F. 2d 388 (9th Cir. 1936).
Since the Committee of Bar Examiners is established, em
powered , and charged with responsibility by State lav; (Calif. Bus &
Prof. Code §6046, et seq.) it is bound by the mandates of both the
Federal and State Constitutions.
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It is clear that state control of the practice of lav; is
nol plenary .but is, at the very least, : ject to restraints that
nay bo imposed by the.Fourteenth Amendmt . Keenan v. Board of Las
"xnminors of the State of N .C., 317 F. Supp; 1350, 13 53 (197 0).
Schwarc v. Board of Bar Examiners,353 U.S. 232 (1957).
Although the purpose of the Committee of Bar Examiners in
administering the examination, to assure competent attorneys, is
admittedly a proper subject matter for the exercise of governmental
power, the practice of administering the present bar exam is in
violation of the due process clause because: (1) this state action
*lenies the constitutionally protected right of those otherwise
qualified to practice the legal profession, and (2) the means
selected has no real and substantial relation to the purpose sought
:o be accomplished.
B. The Plaintiffs Have A Fundamental And
Constitutionally Protected Right To
Practi c e The Pro fession 0 f Law.
"Life:, liberty, property, and the equal protection of the
Law, grouped together in the Constitution, are so related that the
leprivation of any one of those separate and .independent rights may
Lessen or extinguish the value of the other three. Insofar as a
nan is deprived of the right to labor, his liberty is restricted,
vis capability to earn wages and acquire property is lessened, and
:e is denied the protection which the law affords those who are
permitted to work. Liberty means more than freedom from servitude,
ind the constitutional guaranty is an assurance that the citizen
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shall be protected in the right to use his powers of mind and body
n any lawful calling." Smith v. Texas, 34 S. Ct. 681, 682 (1914).
Thus the right to hold crip 1 oymcnt, or to engage in any
chosen business or profession, free from unreasonable governmental
.ntcrference, is inextricably bound up in the concept of due
process of lav:. The Supreme Court has declared that "the right to
:ollow any of the common occupations of life is an inalienable
right ... this right is a large ingredient in the civil liberty of
die citizen." Butchers Union Co. v. Crescent City Co., Ill U.S.
M 6 , 762 (1884) , and that "the right to work for a living in the
:ommon occupations of the community is of the very essence of
personal freedom and opportunity that it was the purpose of (the
fourteenth] Amendment to secure." Truax v. Raich/ 239 U.S. 33,
11 (1915); Rattl v. Hinsdale Raceway, Inc., 249 A. 2d 859, 109 N.H.
>70 (1969) .
Most recently in Baird v. State Bar of Arizona, 401 US 1
(1971), the Court asserted:
The practice of law is not a matter of grace, but
of right for one who is qualified by his learning
and moral character. (4 01 U.S. at p. 8) .
C. The Present Bar Examimrtion Requirement
Illegally Imoairs The PIaintiffs' Right
To Practi.ce Law Because It Does KoL Have
A Rational , RoaJ, Or Subs t a n t i a 1 R e 1 a t i o n
To The Purpose :i t Seeks To Aceomol is'h.
In Koniqsberq v. State Bar of California, 353 U.S. 252
(1957), the Supreme Court stated:
We recognize the importance of leaving States
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free to select their own bars, but it is equally
important that the State not exercise this power
in ail arbitrary or d 1 r»crininatory manner nor .in
such a way as to impinge on the freedom of political
expression or association. (353 U.S. at p. 273)
(Emphasis added.)
In the case of Schware v . Board of Bar Examiners, suer;
.he Court enunciated a standard of review to be applied in deternin-
ng the constitutionality of a denial of the right of the petitioner
o qualify for the bar. The Court held that the petitioner was
:eprived of due process and declared:
A State cannot exclude a person from the practice
of lav/ or from any other occupation • in a manner
or for reasons that contravene the Due Process
or Equal Protection Clause of the Fourteenth
Amendment. [Citations.] A State can require
high standards of qualification, such as good
moral character or proficiency in its law, before
it admits an applicant to the bar, but any qualifi
cation must have a rational connection with the
applicant1 s fitness or capacity to practice law.
[Citations.] Obviously, an applicant could not be
excluded merely because he was a ...' Negro .. .
Even in applying permissible standards, officers of
a Stiite cannot exclude an applicant when there is
no basis for their finding that he fails to meet
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these standards, or when their action isninvidiously
discriminatory. (Id. at pp. 238-239.) (Emphasis added.)
In the present instance the COMMITTEE OF BAR EXAMINERS
is not even aware of any efforts to determine what the relation
ship is between the examination and competence to practice lav;.
Thus, in addition to their own failure to ascertain the presence
of a rational connection between the bar exam and practice, they
are not even aware of any other relevant evidence. At best, whether
or not a "rational connection with the applicant's fitness or
capacity to practice law" exists is a matter of sheer guesswork.
a •
The administration of the written bar examination, as
a prerequisite to the licensed practice of law in California, is
most often justified on the basis that it is assumed to be necessary
to screen out unqualified applicants for admission to the bar, or,
in the alternative, it is assumed to be necessary to maintain the
standard of quality of the State Bar. Mere assumptions of "neces
sity" are not equatable with demonstrations of a legally valid
rational, connection. This is particularly.so'in light of other
evidence.
The plaintiffs herein, lav; students and former law
students underwent a three year course of study at accredited
law schools which have already been evaluated and rated by the
COMMITTEE OF BAR EXAMINERS. That these plaintiffs', upon gradua
tion, must re-demonstratc their skills on an examination similar
to those administered for their law school courses implies that
such accredited law schools arc not measuring accurately the
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competence of their graduates and, therefore are graduating un
qualified applicants. This proposition assumes that the COMMITTEE
OF 13A,1’ EXAMINERS are able to devise a multi-hour examination which
is so accurate that it is better able to predict the future per
formance of the plaintiff students than the already accredited
law schools, which supervise and analyze students performance and
potential over a period of at least-three years. There are cogent
reasons why this proposition is untenable beyond the absence of
any supportive evidence.
First, over ninety-eight percent of the graduates of
* m
accredited lav; schools eventually pass the exam if financially able
to continue re-taking it. Thus, in practice, the screening functic:
sf the exam is negligible with respect to these graduates. Second,
law school professors and administrators possess a far greater de
cree of professional expertise and background in evaluating the
competence of. law students than the membership of the COMMITTEE OF
3AR EXAMINERS. Third, the basic concepts of the bar examination
lave not been substantially re-evaluated in two decades, despite
the dramatic changes in the fi.tness of law school admittees, the
2 5/Law, and the legal profession. — Fourth, the performance and
competence of minority students is inadequately tested in
25/ "The legal profession, it seems to-me, must recon
sider its bar examination which varies widely from state to state.
3raduat.es of accredited law schools who are denied the right to pra
:ico their profession solely on the basis of an examination, which
:o my knowledge lacks demonstrated validity, can challenge the de
rision in the courts." (Plotkin, Coal Handling, Steamfitting, Psvc
l.ogy, and haw, American Psychologi s t, Volume 2 7, No. 5, March 1972,
cage 2 01) .
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Limited-time, bar-type examinations.— /
In order to satisfy the mandate of the Due Process Clause
■>f both the State and Federal Constitutions, given the admittedly
Legitimate state interest of insuring competent attorneys to serve
-he public, the state bar examination must be shown to be at least
a "rational basis" upon which the examiners rely when determining
whether to deprive an applicant of his or her right to practice law.
Lhat is to say, the COMMITTEE OF BAR EXAMINERS must prove that there
Ls a rational connection between the successful completion of the
>ar examination and competency in the legal profession. The "raticrw
^onpection" which is required in the area of employment testing is
validation of the examination mechanism. The COMMITTEE OF BAR EX
AMINERS cannot even begin to establish such a rati'onal connection
nihil a presently non-existent "job analysis" is performed. Then
;he test would have to be professionally constructed with cut-off
27/>r passing scores professionally validated.— Otherwise, and the
.nstant case is such a situation, the rule of Keenan v. Board of
jaw Examiners, 317 F. Supp. 1350 (D.N.C. 1970)., must apply.
'Where there is no rational connection between premise and conclu-
* i;.ion, even legislative presumptions must fail." 317 F. Supp. at .1369,
26/ See PETITIONER'S EXHIBIT 14 by Professor Michael
-aid, Stanford Law School on comparative performance of minorities
>n bar-type exams as opposed to other devices evaluative of legal
:ompetence.
27/ See discussion, Section II, supra and PETITIONER'S: XIII BIT 13.
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A stale1 I't-r/ not condition the right to practice law on
rbitrary or unreal ••nnb.le standards , Konigsbcrg v. State Par of
Californi a, supra; /id. it is undisputed that the bar examination
lias been, and is si j 1 1 being administered without any attempt to
determine whether <>i not it actually tests those skills that arc
necessary for the competent practice of law. The COMMITTEE OF BAR
EXAMINERS has novel utilized testing experts to demonstrate that
relationship and ha>, even refused to attempt, through validation
studies or otherwi s>1, to show that the bar exam, in any way pre-
diets the perforrnan' ■e of applicants as lawyers. All that is shown
is that the COMMITTI .E OF BAR EXAMINERS assumes that the given prac
tice is desirable, in clear violation of the most elementary prin
ciples of testing and EEOC guidelines. ^8/
Three hundred and sixty-seven attorneys were admitted to
the California Stab' bar without ever taking the examination.
These individuals v/*u'o deemed qualified by virtue of their service
in World War II and 1 lie Korean War and after graduation from ac-
credited lav; school' 29/.— Yet, these members of the bar are as
fully competent as Ihose who did toko the exam. They include part-
vers in the state's largest corporate law firms, former members of
the state bench, c.i Iy attorneys, the state's leading labor arbitrate::
and even a member Die COMMITTEE OF THE BAR EXAMINERS. This
28/ See |, 12 supra footnote 14.
2 9 / Cal iI
(r e p e a 1 e d 19 5 9) .
, Bus & Prof. Code §6 6060.5 and 6060.8
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situation, in conjunction with the facts previously, discussed,
compels the conclusion that, in the absence of any substantive
demonstration of the rational connection of the challenged practice,
the Bar Examiners are engaging in pure speculation and guesswork
by maintaining that satisfactory performance on the examination has
a rational relationship with the plaintiffs' fitness or capacity
to competently practice lav;.
An additional possible purpose for the bar examination is
to insure that lav; schools train their students in exactly those
subject matter areas which the COMMITTEE OF BAR EXAMINERS deem
*necessary. But the Committee already has such a check on the
law schools in their accreditation procedure. Also, although there
have been radical changes in the law. in the past two decades, the
examination is restricted to an unchanging and arbitrary formula of
requisite legal subjects with no regard to specialized preparation
in many fields which have become increasingly significant: landlord-
tenant, consumer protection, environmental quality, employment, ad
ministrative and welfare lav;. This latter development is of detri
merit to the law student who would like to delve into new fields
but is precluded by the necessity to concentrate on the limited
areas tested by the bar exam.— /
training
2, 3, 4,
30/ The exams effect on students, courses and
received is described in PETITIONER'S EXHIBITS 1,
and 17.
///
///
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Finally, these indirect purposes and assumptions can-
ot lawfully be used to justify an infringement on fundamental
ights. The Petitioners have a precious right in the liberty to
ursue the practice of law. Moreover, it is. a right which society
as a peculiar interest in preserving for the peaceful resolution
f conflict. The present examination mechanism deprives petitioner
f that right without a rational basis due to speculations and as-
umptions concerning the validity of the exam, and it may even
cprive the public of its right to be protected from incompetent
egal representation. The continued use of such a mechanism is
otli arbitrary and unreasonable. Even in the absence of any racial
incriminatory effect, like the one present here, the existing
xamination procedure violates the Due Process Clause of the State
nd Federal Constitutions. As the Supreme Court has declared in
onigsberg, supra,
"A bar composed of lawyers of good character and
competence is a worthy objective but it is unneces
sary to sacrifice vital freedoms 'in order to obtain
that goal." 353 U.S. at 273 (1957)'.
D . Defendants Have Les s_ One r ous Alte m a t Ives To
The Present Bar Examinatlon Which Would Serve
Equa.IIy_ Well or Botter To Insure Compel:onee
In The Legal Profession.
Since there is a right to practice law for those otherwis
ualified, it follows that this right cannot be abridged except to
romoto a compelling state interest. See Shelton v. Tucker, 364
.S. 479 (1961); Apthoker v. Secretary of State, 378 U.S. 500.
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When state(.1964) ; Griswold v . Conn.ee t i cut, 381. U.S. 479 (1965).
action operates to violate .protected rights as well as to promote
a compelling state interest, it is characterized as overbroad.
Gr.i swold v . Connecticut, supra, 38’1 U.S. at. 485. Implicit in the
concept of overbreadth .is the Court’s judgment that a more discrim. -
inantelytailored means to accomplish legitimate state ends could bo
employed.
It is clear that there is a compelling state interest in
insuring competency of the legal profession. This is undisputed,
lut when the device used to test competency excludes those who are
competent, it is overbroad and consequently violative of due process
rhe present bar exam is such a device because, for the reasons
stated above, it does not serve its professed purpose. The same
ourpose can be more effectively served without discrimination and
Constitutional violation. "[P]recision of regulation must be the
bouchstone in an area so closely touching our most precious freedomr
1AACP. v ._Button, 371 U.S. 4.15, 438 (1962) . Eisenstadt v. Baird, U.S.
10 U.S.L.W. 4304 March 22, 1972. .
There are a myriad of alternatives open to the COMMITTEE
)F BAR EXAMINERS that would be even more effective in insuring com
petency and which would not "invade the area of protected freedoms,'
1AACP v. Alabama, 377 U.S. 288, 307 (1963) , by prohibiting compel
ipplicants from gaining admission to practice. A partial list of
>uch alternatives for graduates of state accredited law schools
70uld include but not be limited to:
A. A mandatory extern program between the second and
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third years of lav? school leading to automatic
admission to the Bar upon successful graduation.
B. A program similar to the above but also requir
ing attendance at a State Bar sponsored practical
training program for a two-week period after
graduation and for a three-day session one year
after graduation.
C. Alternative 'A' except admission would be
conditional upon the successful preparation and
handling of a misdemeanor trial under supervision
within six months after graduation.
D. A program which incorporated all or some
combination of the requirements of A, B and C
above.
F. A mandatory practical training institute
for two months after graduation conducted in
cooperation with the State Bar and the accred
ited law school. Upon successful completion
of such a program, admission to the Bar would
be automatic.
F. A one-year commitment to working with legal
services or other progreims directed at under-
represented communities and lower middle income
groups. Conditional admission to the Bar would
come after four months of successful performance
and would be followed by permanent admission at
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the end of one year's successful performance.
G. Automatic admission to the Bar upon graduation.
Such admission would be conditioned upon acceptable
performance for one year, or its equivalent as
certified by an experienced attorney and determined
by the State Bar.
H. Automatic admission to the Bar upon successful
graduation from an accredited California lav; school.
I. Certification by licensed attorney, judge,- or
law school, dean of acceptable performance as an
i
attorney for a one-year period. Such a period
could include summer jobs or part-time jobs prior
\to graduation. But such certification would not
become effective until successful graduation.
J. Any one or any combination of the above
coupled with a non-discr'imijnatory selection
device, e.g. oral examination or other validated
device.
K. Any combination of the above, with or without
increased clinical programs during the law school
years.
All these alternatives have several features in common,
irst of all, a firm grounding in basic legal’concepts is assured by
equir.ing graduation from an instate accredited law school. Second-
y, all alternatives except "II" offer applicants some form of prac-
ical experience and personal supervision - obvious]y necessary to
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the practice of law and something the bar examination makes no
pretense of providing.
Thus, 'since-the bar examination operates to exclude
those who have a right to,practice law and there are other alterna
tives available which are more precisely tailored to the needs of
the state, use of the exam is constitutionally indefensible since
it violates the due process clause, of both the United States and
California Constitutions.
IV. THE BAR EXAMINATION DEPRIVES BLACK AND CIIICANO CALIFORNIANS
OF LEGAL SPOKESMEN, IN VIOLATION OF THE FIRST, FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS, BY■ARBITRARILY EXCLUDING MINOR-
, ITIES FROM THE PRACTICE OF.LAW.
The virtual exclusion of Blacks and Chicanos from the
legal .profession in California deprives nearly one-quarter of the
population of effective legal representation in civil and criminal
cases. Such deprivation constitutes a denial of' the right to peti
tion for redress of grievances under the first amendment, and of the
right to due process and effective assistance of counsel under the
Fifth, Sixth, and Fourteenth Amendments.
A. Exclusion Of Blacks and Chicanos From Law
Practice Deprives Minority Citizens of The
Right To Petition For Redrc,'ss Of Gr:Levances
. Under The First. Amendment.
Minority persons have unique problems in•vindicating their
rights in court which arise due to the absence of lawyers from
their same ethnic group. This situation handicaps proper utiliza
tion of the courts and adversely affects the attorney-client rela
tionship. r31/
31/ See PETITIONERS' EXHIBITS 4,5,6,7 and ■ 20
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Full cooperation between attorney and client is crucial
to an adequate presentation of the client’s case. But if the
client is fluent only in Spanish, and the attorney speaks.only
English,Meaningful cooperation is impossible. — / This can
lead to grave injusticesas courts have recognized. An excellent
example is Sandoval v . Ra11ikan, 395 S.W. 2d 889 (Court of Civil
\ppeals of Texas, 1965), cert, den... 385 U.S., 901 (1966), where an
illiterate couple who spoke only Spanish sued in trespass to try
xitle to their land; they were found to have been represented in
effectually because their legal aid attorney spoke no Spanish,
■lorfcover, even when there is no absolute language barrier, ethnic
slang or dialect may make meaningful communication between a White
xttorney and his minority client impossible.
■ Courts are sensitive to the peculiar problems of various
jroups in asserting their legal rights, even when in theory other
Lawyers are available to such groups. In Brotherhood of Railwav
'rainmen v. Virginia, 377 U.S. 1 (1964) , the Supreme Court had
xccasion to pass on a labor union's attempt to provide adequate
egal services to its members. Victimized workers and their
families had difficulty in getting favorable resolution of personal
njury claims under the Federal Employers' Liability Act because,
they] "fell prey on the one hand to persuasive claims adjusters
ager to gain quick settlement for their railroad employers or, on
32/ See PETITIONERS' EXHIBITS 21 and 20.
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the other' hand, to lawyers either not competent to try these
lawsuits against the able and experienced railroad counsel or too
willing to setLle a case for a quick dollar." 377 U.S. at 3-4.
To combat this, the union set up a Legal. Aid; Department that
recommended capable attorneys to injured workers. Virginia sought
to enjoin these activities under its authority to regulate the
legal profession. In holding for the'union, the Court stated:
A State could not, by invoking the power to regulate
the professional conduct of attorneys, infringe in
any way upon the right to individuals and the public
to be fairly represented in lawsuits ..., c.f. Gideon
B, Wainright, 372 U.S. 335. The State can no more
keep these workers from using their cooperative plan
to advise one another, than it could use more direct
means to bar them from resorting to the Courts to
vindicate their legal rights. The right to petition
the Court can not be so handicapped. [377 U.S. at 7.
(emphasis added)]
See also United Mine Workers of America v. Illinois State Bar
Association, 389 U.S. 217 (1967) ; Hildebrand v. State Bar of
California, 36 Cal. 2d 504, 515 (Carter, J., dissenting) 521,
rraynor, J., dissenting) (1953); Wise v. Southern Pacific Company,
l Cal. 3d 600 (1970). 11/
33/ When the minority litigant is a civil defendant or an
other citizen forced by the legal process to resort to the courts fc;
redress, the problems caused by the .lack of adequate members of min-
:>r.i.l.y counsel prejudice, his .right under the due process clause of th?
the 14th Amendment to a meaningful opportunity to be heard. Mu 1lane
y. Central Bank and Trust Company,- 339 U. 5. • 306- (1950); Bodie v ._
lonnoc hleu f, 4 01 U.S. 371 (19/1).
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Just as railroad workers encountered difficulty in re
sorting to the courts to vindicate their rights, so do members of
California minority groups. And just as Virginia attempted to
thwart the efforts of the workers to cope effectively with their
situation, the California COMMITTEE OF BAR EXAMINERS denies minority
citizens their own legal advocates by continued administration of an
examination which is discriminatory and not job related. While the
effect of California's actions may be more subtle than Virginia's,
the result is precisely the same, and the "constitution forbids
sophisticated as well as simple-minded modes of discrimination."
Reynolds v. Sims, 377 U.S. 533, 563 (1964). And that result is the
erection of an unconstitutional barrier to the effective redress of
jrievances by minority citizens. See also United Mine Workers of
\mer1ca v. Illinois State Bar Association, supra, 389 U.S. at 222;
Johnson v. Avery, 393 U.S. 483, 490, fn. 11.
This is a particularly critical problem for the nation's
racial and ethnic minorities. While there is a substantial and
growing body of law which establishes and protects the rights of
minorities, many of the institutions in this-country have been slow
:o comply with these laws. The result is that the courts are fre
cently the only arena in which minorities can vindicate their law
ful 'legal'’ rights. Although the right to vote is' "fundamental"
md "preservative of the basic civil and political rights" , see
Reynolds v. Sims, supra, 561-2; Harper v. Virginia State Board of
Iloct:ions , 383 U.S. 663-667 (1966) , in the absence of the superior
noting power which is available to the majority white population,
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inorities are often unable to depend upon the legislative process
or protection. Thus, access to the judicial process takes on a
ew and imperative significance.
The United States Supreme Court has already noted this
evelopment in NAACP v ._Button, 371 U.S. 415 (1963). There the
tate of Virginia had sought to prohibit litigation by the N/iACP
n the grounds that the Civil Rights organization was fomenting
itigat.ion.
Reversing the Virginia Court's ban on NAACP legal activi
he Court per Mr. Justice Brennan declared:
In the context of the NAACP objective, litiga
tion is not a technique of resolving private
differences; it is a means for achieving the
lawful objectives of equality of treatment by
all governments, Federal, State and local, for
the.members of the Negro communities in this
country, it is thus a form of political ex
pression, groups which find themselves unable
to achieve their objectives through the ballot
frequently turn to the courts ... And under the
condlti ons of modern government, litigation may
well be the sole practicable avenue open to a
. minority to petition for redress of grievances.
The NAACP is not a conventional political party;
but. the litigation it assists while serving to
vindicate the legal rights of the American Negro
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community, at the same time and perhaps more im
portant, makes possible the distinctive contribu
tion of a minority group to the ideas and beliefs
of our•society■ For such a group, _association, for
.litigation may be the most effective form of
.political association. [371 U.S. at '429-31.
(emphasis added)]
Thus under present circumstances in this nation, the ac
cess of minorities to the Courts - the .right to petition for redres.
rf grievances - carries a strong quasi-legislative and political
impact. This development adds a whole new dimension to the role cf
minority attorney. In one very real sense, he has become a spokes
man, even a political spokesman, for:his ethnic group.— /
Carious consequences for the present system of licensing
>f attorneys flow from these developments. As a political spokesr.a:
die attorney must be particularly sensitive to the needs of those
>e represents, able to gauge accurately the sentiments of his clierr
:onstitueno.ies, capable of establishing unencumbered lines of com-
mnication, and, perhaps most of all, subject to complete trust. .
t .is apparent on its face that the Bar examination as presently
:onstitutcd tajkes absolutely no cognizance of these skills. Rather,
t is so limited in content and so unsupported by professional
34/ This is not to say that the White attorney is totally
nablo to represent minority groups.- In the absence of enough
linority attorneys the h.i story of the Civil Rights movement documenr
lie outs banding contr.i bu.tions of White lawyers.
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validation that instead-it is a detriment to the admission of
minority attorneys. It is .admittedly doubtful that a written
exam which effectively tests these political skills could ever
be devised. But what is before the Courts here is an examination
.•:h.icb excludes Blacks and Chicanos from the legal profession with
out even the pretense of testing the skills that are singularly
critical in vindicating the rights of California's Black and
Ohicano citizens. Indeed, it seems reasonable to analogize this
I’ase to the "voting cases in which the courts have scrupulously
protected the fundamental interest in voting (and in running for
5ff3.ee) from even relatively minor infringements, such as a $1.50
poll tetx,' Harper v. Virginia Stctte Board of Elections, supra,
w: a too-lengthy registration period. Dunn v. Blumstein , 40 U.S.
jtlw Vvee); 4269, March 21, 1972. Suppose, for example, a difficult
.’.r it ten 3-day exam was given by California as a prerequisite to
lolding a political office, that the test, was unvalidatcd, that
minority persons were disproportionately kept from office by such
m exam, and that many of the prerequisites for a successful office
lolder such as verbal proficiency were not even tested. Such an
nfringement, far more drastic than a poll tax, would clearly be u;
institutional. Yet the court system is equally as legitimate a
'ranch of the government, and must be just as carefully protected
rom invidious devices as the Legislature.
7 /
//
/ /
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13, Exclusion Of Blacks And Ch.icanos From Law
Practice Deprives Minorities Of Rights To
Effective Assistance Of Counsel.
Gideon v..Walnwr.ight, 372 U.S. 335 (1963) and its progeny
require that criminal, defendants be provided'with legal representa
tion in accordance with the Sixth Amendment. And, of course,
counsel must be effective if a defendant is to receive due process
ander the Fifth and Fourteenth Amendments. P'owell v. Alabama,
187 U.S. 45 (1932). To be effective means, at the least, that
:he client and attorney be able to communicate with each other so
;hc former can aid in the preparation of his defense. However,
:he*absence of Black and Chicano attorneys from the California bar
obstructs comprehensive attorney-client relationships, and thus
prejudices the right of minority defendants to receive effective
representation and due process.
That racial barriers may stand in the way of fair rrial
m s recognized in Kinney v. Lonon, 425 F. 2d 209 (9th Cir. 1970) ,
7here-a 17-year-old Black defendant sought release in the custody
>f his parents in order to help prepare his defense. The defendant
illeged that his attorneys, as Whites, would-'have great difficulty
,n interviewing and lining up Black defense witnesses. The Court
>rdered the defendant released, declaring:
We may take notice, c-is judges and lawyers, of the
. difficulties often encountered, even by able and
conscientious counsel, in over-coming the apathy
and reluctance of potential witnesses to testify.
It would require blindness to social reality not
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to understand that these d.ifficulti.es may be
exacerbated by 'the barriers of age and race.
(.id. at p. 210.) [Emphasis added.]
A number of other aspects of the attorney-client relation
ship are affected by racial and ethnic differences. Minority
:r.im.inal defendants are prejudiced in the same way as minority
:ivil litigents by an inability to communicate with counsel because
)f a langiuige barrier. The United States Civil Rights Commission
stated that:
Many Mexican-American defendants who have some
a.
. knowledge of English lack sufficient proficiency
to understand fully the nature of the charges
or proceedings against them. These defendants
cannot plead intelligently, advise their lawyers
of with respect to the facts, fully understand
the testimony of witnesses against them, or other
wise adequately prepare and;assist in their own
defense. United States Civil Rights Commission,
Mexican-Americans and the Administration of
Justice in the Southwest (1970) at p . 69
In the face of this deficiency, there are pitifully few
• IS/.ii.no.rity defense attorneys. zzJ
35/ The Public Defender of Los Angeles County stated
:hat there”are 235 attorneys in his offi.ee. One was. Spanish sur-'
lamed, and only twelve, to his knowledge, spoke Spanish. United
states Civil Rights Commission, supra, at p. 69
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The problems of communication pose-an analogy to the
trial of an insane person, who, because of his mental condition,
is unable to assist in his own defense and thus could not receive
a fair trial. (Sec Cal.. Penal Code, §1367) ..
Finally, the court may take notice of the hostility and
distrust with which minority defendants often view the entire court
system.36/ To the extent that this mistrust focuses on the ap
pointed defense attorney - a representative of that system - coop
eration between attorney and client beepmes extremely difficult.
In Brown v. Craven, 424 F. 2d 1166 (9th Cir. 1970) , the
Ninth Circuit reversed the murder conviction of a defendant who ■>
because of his "dissatisfaction, distrust, and concern" with his
appointed counsel refused to communicate with the'attorney. This
case illustrates how a defendant's distrust of his lawyer can
severely prejudice his rights. Although there is no indication
that the hostility here was racially, based, certainly racial and
ethnic differences are likely to exacerbate whatever tensions al
ready exist between an indigent defendant and his attorney. In
Brown the Court stated: _
... Brown was forced into a trial with the
assistance of a particular lawyer with whom
he was dissatisfied, with 'whom he would not
cooperate, and with whom- he would not, in
any manner whatsoever,' communicate. Thus,
the attorney was understandably deprived of
the power to present any adequate defense in
Brown1 s behalf. 4 24 F. 2d at 13.6 9.
36/ Id., at 60-2.
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The presence of more minority attorneys would
obviate the problems of cooperation brought about by a language
barrier. As well, there 'is evidence that minority persons, al
though suspicious of all attorneys,• tend to be more trusting of
3 7/attorneys who share their ethnic background.— Thus, the ad
mission to practice of more minority attorneys would lead to
more effective assertion of the rights of minority criminal defen
dants .
It is well settled that a defendant is entitled to a
grand and petit jury system that does not discriminate against
members of his race under the equal protection clause of the Four
teenth Amendment. Straudcr v . West Virginia, 100 U.S. 303 (1880);
Rogers v. Alabama, 192 U.S. 226 (1904); S wa .in v . • A1 ab ama , 380 U.S.
202 (1965). He is so entitled because the court feels that this
will enable him better to secure his right under the Sixth Amend
ment to trial by an impartial jury. .See Straudcr v. West Virginia,
supra. For the same reasons, he should be entitled to a system of
entry to the legal profession that does not discriminate against
members of his own race so as to secure his Sixth Amendment right•- f
to effective assistance of counsel.
The courts have recognized that racial barriers, which
often occur without anyone's fault, may hamper an attorney from
adequately defending his client. As long as the bar exam, a dis
criminatory and unvalidated device, keeps the number of minority
37/ 424 F. 2d at p. 59.
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attorneys in California grossly disproportionate t6 the state's
population, Black and Chicano defendants will continue to be
deprived of their rights to effective assistance of counsel under
the Fifth, Sixth, and Fourteenth Amendments.'■
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V. BECAUSE THE PRESENT WRITTEN BAR RESULTS IN A
CLASSIFICATION INFRINGING THE FUNDAMENTAL RIGHT
TO PRACTICE LAW WITHOUT SERVING ANY COMPELLING
STATE INTEREST AND DISREGARDING LESS ONEROUS
AI iTE RN AT IVE S PE TITI ON E RS
PROTECTION
HAVE BEEN DENIED EQUAL
A. The Right to Practice Lav.7-Is a Fundamental
Right' 10 thin thcTTToanlng ot The Equal Pro
tection Cffauccs or the United States and
CaTOlSI-rTi'a Constitutions.
h s discussed earlier in this memo r and uni, the right to
practice lav? is crucial to the integrity of the political
process and can itself be a form of political expression.
Legal representation is also an ultimate safeguard for all
of'our other fundamental rights, serving as a watchdog
against illegal and oppressive infringement of liberties.
In addition to denying petitioners access to employment and
political arenas,' respondents have denied minority groups
the right to work with maximum effectiveness within the fi.ame-
work of the legal system. In part because of these factors,
the fundamental nature of the right to practice law has been
recognized by the courts. See e.g., Keenan v. Board of. _Lgw
Examiners of the State of North Carolina, -317 F .Supp. 1350,
1353 (1970); Baird v . State Bar of Arizona,.401 U .S. 1 (1971);
Tfnnianbiim v. State Bar of California, 353 U.S. 252, 273 (1957);
Sobwaro v . Board of Bar Examiners, 3 53 U.S. 232, 238-239 (195/).
Moreover, the decisions of this court and the United States
Supreme Court establishing the right to counsel and the right
of access to the courts necessarily imply that both the right
to practice lav; and the .right to be effectively represented
are fundamental in the constitutionul sense.
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B . The Discriminatory Results of the Bar Examination
Create A Suspect Category Within the Meaning of .
H iq* "Kquifl-Prc> tc ct ion_ Cl auses_- of _the Uni tod S t a t e s
and cFTtoriPuT Cons titutions .
The undisputed facts establish that the result of the.
Bar Exam is grossly discriminatory. The.August, 1971, Bar
served to eliminate 63% of all -Blacks and Chicanos who were
successful.graduates of accredited California Law Schools
while the same examination kept out.only 15% of the White
Students in the same category. The written Bar Exam thus
classifies (albeit unintentionally) applicants into two
groups - minority and non-minority - with grossly disparate
consequences for each of the categories. These matters are
more extensively discussed in the earlier parts of this memo
randum and clearly established by the petitions filed herein
and the supporting exhibits. Where either a "suspect classi
fication" or a "fundamental interest" is involved, the State
must show that the discriminatory, classification is necessary
to promote a compelling State interest. Sh ap 1 r-o v . Tb o nip s cm ,
394 U.5. 610, 634 (1969); Harper v. Virginia State Board of
Elections , 383 U,S. 663,668 (1966); Purdy•and Fitzpatrick v.
State of California, 71 Cal. 2d 566 , 79 Cal.. Rptr. 77 (1969);
Westbrook, v. Michaly, 2 Cal. 3d 765 ,■ 7 04-85 (1971) ; In re Antazo,
3 Cal. 3d 100 (1971); Tate v. Short, 491 U.S. 395 (.1971); Dunn
v. Blumstein ____U.S. ____, 40 LW 4269 (March 21, 1972);
Serrano v . Priest, 5 Cal. 3d 615 (.1971). Here there is both
a fundamental interest (the right to practice law and its
concomitant rights) and-a suspect classification (i.e. race).
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c. The Bar Examination is Hot' Hocessnry,’ or Even
Farticularly Usefu.1 Tn Fur't!)cring Anv Compel!-
Tng~ State in to rets t Esp'ociiil ly ~ln Light of 'Die
A11 ern a t i v o s Avail ab .1 e . '
It bears emphasis that governmental action which discrimi
nates' on the basis of race or which involves a fundamental
interest is presumptively invalid unless shown to be necessary
in order to achieve a compelling state interest. Loving v.
Commonwealth of Virginia, 380 U.S. 1, 11 (1967); McLaughlin v.
/State of Florida, 379 U.S. 184, 196 (1964); Carrington v. Rush,
38 U.S. 89 ( 1965) .
This principle has frequently been applied in ordep to
invalidate discriminatory employment examinations. In Chance
*.
v. jloard of Examiners, supra, the Court stated:
Such a discriminatory impact is constitu
tionally suspect and places the burden on
the Board to show that the examination
can be justified as necessary to obtain
Principals, /Assistant Principals and
supervisors possessing the skills and
qualifications required for successful
performance of the duties of these positions.
(•330 F . Supp. at p. 223.) (Emphasis added.)
It is difficult to understand how an examination could be
considered necessary since 98% of those who take it from
accredited California Law Schools eventually’pass, since it
does not even purport to test most of an attorney's essential
skills (such as research and oral ability), when it. is dupli
cate ry of exactly the same trait's required for a'successful
performance in law school, and since less onerous-alternatives
backed by existing requirements of graduation from an accred
ited California Law School arc readily available. That the
exams are totally unnecessary.- is also demonstrated by hundreds
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>f very successful practitioners who never paissed the Bar
Ixara and who are now competently representing their clients
md by the fact that at least one person is now practicing
.aw who succeeded in passing on his 21st. attempt. The exami-
istion is useful for only one purpose - to maintain the Bai
ls a largely all-White institution and thus to deny equal
protection to minority groups,
New cases expose old infirmities which
apathy or absence of challenge has per
mitted to stand. But the constitutional
imperatives of the equail protection
clause must have priority over the com
fortable convenience of the status quo.
Williams v. Illinois, 399 U.S. 235, 245 (1970)
(Chief Justice Burger.)
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CONCLUSION
As a mat I-or of law and the undisputed facts, the bar
examination is grossly discriminatory, not related to the actual
practl.ee of the- lav/, .unvalidated, and unnecessary in determining
legal competence. It thus fails to protect the public (except
by accident) and unconstitutionally deprives hundreds of minority
lawyers of the right to practice their profession. In addition,
by depriving minority group persons of the opportunity to practice
law, the State also has infringed on (indeed, has precluded) the
exercise of a galaxy of our most important and clearly recognized.
constitutional rights, and has dashed the hopes of.thousands of
minority persons who want only to resolve their just grievances in
the framework of our legal system. Respondents stubbornly persist
\ •
in this course of conduct even though there are a wide variety of
alternatives available, all of which would better assure competence-
by emphasizing (1) affirmative training instead of a negative and
speculative weeding-out device, and (2) actual experience instead
of an artificial, three-day test situation.
This honorable. Court lias the ultimate responsibility for
assuring that constitutional rights arc protected,and maintaining f.
integrity of our calling. Petitioners here ask only that the
legal profession abide by the same minimal standards and rules of
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' -52-
law which we ask of all other occupations.
For the foregoing reasons, Petitioners pray that their petition
be granted.
i; ivJ I
/1
4 j| ROBERT- L. GNAT ZD7L, ESQ.
SIDNEY M. WOLINSKY, ESQ.
ALBERT F. MORENO, ESQ.
J. ANTHONY KLINE, ESQ.
JO ANN CHANDLER, ESQ.
Public Advocates, Inc.
433 Tuxk Street an Francisco, California
Tel: (415) 441-8850
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94102
TERRY J. HATTER, JR., ESQ.
ABBY SOVEN, ESQ.
IIAROLD 11ART-NIBBRIG, ESQ.
LORETTA SIFUENTES, ESQ.
Western Center on Law & Poverty
1709 West 8th Street Los Angeles, California 90017
Tel: (213) 483-1491
k/i
4ARTY CLICK, ESQ.
RUZ REYNOSO, ESQ.
MIGUEL MENDEZ, ESQ.California Rural Legal Assistance
1212 Market Street an Francisco’, California 94102
Tel: (415) 863-4911
STAN LEVY, ESQ.
STANLEY W. KELLER, ESQ.
3everly Hills Bar Association
Law Foundation
300 South Beverly Drive
3everly Hills, California 90212
Tel (213) 553-6644
ALAN EXELROD, ESQ.
MICHAEL 'MENDELSON, ESQ.
Mexican-Amerienn Legal
Defense and Educational Fund
National Office
145 - 9th Street
San Francisco, California 941
Tel: (415) 626-6196
CHARLES JONES, ESQ.
Los Angeles Legal 7̂ Id
Foundation
1819 West Sixth Street
Los Angeles, California 90017
Tel: (213) 484-9550
ELLEN CUMMINGS, ESQ.
Legal Aid Society of Alameda
County2357 San Pablo Avenue
Oakland, California 94612
Tel: (4.15) . 465-3833
.Of Counsel: Mario Obledo
Attorneys for Petitioners
1 L
'Robert L . Gnaizda
26
ro
i SI]
All.t
L. GIIAIKDA, FSiv, # \70],'!-;'■ -\r p
r* ' r̂ T; - ’- t 0, ESQ.'* ■>' ~r T 8 •. ■: J\ ... .L .r t* (' r* . • /
Public Advoea to. , Inc.
/; 33 Turk Street
Srir. Francisco , California 9tl02
( A 1 5
A Lin e x:J.3rj_iROD, FSQ
MIC11.TIN.' ENDE1,5 ON
1-lc xi. c a n Ar.orican
Defense clnd Edue a
Nat. i c n a1 Of f ice
TO. (4.15) 4-11-8950
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!i TERRY .'! . ll/V.L’TE)’ / OR., ESQ./
ii A117JY SOYF8, ESC).'HAROLD HAKT-iFLLLRTG , ESQ .
LORETTA STFUENTES , ESQ.
Western Center on Lav.’ f< Poverty
.1709 West Eighth Street Los Angeles ,- California 9001.7
Tel: (213) 4 0 3- 1-191
MAP.TY CLICK, L.-.'.L
CiluS REYNOSO, I’SO.
. i ll GULL 1AX’ DE 2 , ESQ .California Fern! Legal Assistance
un <
145 - 9th.Street
San Francisco, California 9-
Tel:' (415) 626-6196
CHARLES JOKES, ESQ..
Los Angeles Legal h id
Foundation
IB19 Lest Sixth Street
' Los An g o 3.e s , C a 1 i f orn i a 0 0 0
Te 1: (2.1 3) 4 8 4-9550
ELLEN CUMMINGS , ESQ-.
Legal Ai d Society of Alan-ed
County2357 San Pablo Avenue
Oakland, California 94612
Tel: (415) 465-3833
1 1.2.12 Mar1.01.L r*trL -1.C
! San Fr anc; i.sc o , Ca • ii.or 13
!i Tel: ji
{ A \ “*15) ocO FJ fi511
J CJrp?. i-.l LEVY, 7'* P,Q.r yi-i 1> PQC'| w ‘ -i .J., .J. - -
j Levarly Hi 1l.c Cl.l. Ae*soc
! Lav; Four t_icn
i 30 0 Soul I.'ev4:3.ly DIfi. V o
! P>evor l.v ILL1 I s Ca 1.1r.I03m
i 'fp *1 » t • * (?12 )j r,51 r• • o64A
Of Counsel: Mario Gbleoo
I
Attornc-vs ±or Petitionerg
IK THE SUPREME COURT OF THE STATE OF CALIFORNIA
ii H’;'WRY Efb’-'TNOX A, LAUP-A M. HO.nT, JIM A D. )
|i LOFTON • NORTHERN CALIFORNIA CON FE DE RATI OK )
I; OF LA. MM M ’ STULAKT ASSOCIATIONS, _ '
ii CHI CARO LAY STUFLITS • ASSOOI ATI OK i CALIF- )
ij (,i i h) , NATIONAL /-SSOSAITIOK FOR TE53 ̂
>iy,T-v, '--'v qf COLO RE 0 PEOPLE (WESTERN
" '.A..s POLITICAL
| .ASSOC.! i .'T'J.O.U , 1: .AT I ORAL ASSOC
ji Tit.: AM'A.Rii.::: of cci.o .-vnd
r F R T. i S-. :u HR ..v -') i
j PAR ASSOC.I" ATI 0?: , '.i
,:... 1.o■' TTSS
! ATI ON FOR
,.'J- LU V-'̂ U
AMERICAN '
UNITED
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iti4
L ATIN- AMERICAN CITIZENS, AND THE ' )
N IE RICAN G. I. FORUM, )
)Petitioners, )
)vs. . )
)THE COMMITTEE OF EAR EXAMINERS OF )
THE STATE OF CALIFORNIA, THE BOARD )
OF GOVERNORS OF THE STATE BAR OF )
CALIFORNIA, AND THE STATE BAR OF )
CALIFORNIA, )
)Respondents. )
)
{
PETITIONERS' EXHIBITS 1 - 2 9
!i
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1 TABLE OF EXHIBITS
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5
G
7
8
9
ID
[PETITIONERS '
Exhibit ::o .[
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PESCRIPTION OF EXHIBIT
Affidavit of Petitioner, Henry Espinoza.
Affidavit of Petitioner, Laura M. Holt.
Affidavit of Petitioner, Jimmy D. Lofton.
Affidavit of Charles E. Jones, Esq.,
Executive Director of the Los Angeles
Legal Ĵ id Foundation.
Affidavit of Charles E. Wilson, Esq.
General Counse'l of California Fair Em
ployment Practices Commission.
Affidavit of Petitioner Mexican-Anerican
Bar Association by its President, Louis
G cl IT C 3. ci / E S CJ[ •
Affidavit of Petitioner HAACP, Western
Region by its Director Leonard Ii. Carter
Affidavit of Petitioner, Chicano Lav; Stu
dents Association, by its president,
Jesus Genera
Affidavit of Petitioner, Northern Cali
Confederation of Black Lav; Students As
iations by its Executive Secretary, Antncrr.
Ward.
■ Affidavit of Michael Ashburne, Esq. ̂ forme;'
Co-Director of Berkeley .Meighborhooo Le-- = -
Services authenticating the 19 6 7 196t a
Exam Performance Information. j
Affidavit of William II. Has tie, Jr.
authenticating the 1969 data on Minoxi^
Bar Exam Performance of Boalt Hall
graduates.
Affidavit of Robert L. Gnaizda, Esq.,
authenticating data on the August 1971
and February 1972 Bar Performance of
Graduates of the Accredited California
• Law Schools.
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ETITIONERS'
EXHIBIT NO.
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DESCRIPTION OF EXHIBIT
Affidavit of Dr. Edward Opton, Jr.
Associate Dean and Senior Research Psychol
ogist at the Wright Institute in Berkeley,;
California on the Significance of Valida
tion and Discriminatory Testing.
/affidavit of Professor Michael' Wald, of
Stanford University School of'Law,.regar- ■
ding the Ineffectiveness of Testing
Mechanisms Similar to the Bar Exam for
Minority Law Students.
Affidavit of the Honorable Nathan S.
Heffernan Justice of the Wisconsin Supreme
Court regarding the quality of a State
Bar with diploma privilege.
Affidavit of W. Wade Boardman, Esq.
Chairman of the Board of the State Bar Cor.:-
missioners of the State of Wisconsin con- j
corning the Bar licensing practices in
Wisconsin and their effectiveness.
Affidavit of Ben Shafton, authenticating
a letter from Dean Spencer L. Kimball,
Dean of the University ’of Wisconsin law
school concerning comparative systems of
bar licensing.
Affidavit of Percy Duran concerning quali
fications of a minority candidate who
failed to pass the bar.
Affidavit of Loretta Se Ayala de Fuentes -
concerning qualifications of a minority
candidate who failed to pass the bar.
Affidavit of Jacobo Rodriquez concerning
deprivation of a Mexican-American communi
suffered by a lack of Mexican-American at
torneys .
.
Affidavit of Eva Garcia and Sidio Joe
Garcia concerning problems of communicatic
of Mexican-American clients with Anglo at
torneys .
Affidavit of Sam Birenbaum authenticating
data on the increased selectivity of
California's accredited'law■schools.
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PETITIONERS' ;EXHIBIT NO. . DESCRIPTION OF EXHIBIT
I
23 'Affidavit of Ben Shaften, authenticating
data concerning the costs to applicants
of the California Bar Examination.
.
24 • Affidavit of Robert S. Raya, demonstrat
ing the chilling effect which the Bar
/Examination has on minorities.
25 Affidavit of Don McCullum, long-time
practitioner concerning the dearth of
Black practitioners and its effects on
the Black community.
26 Affidavit of Sidney. M. Wolinskv, Esq., i
authenticating an attached copy of the
demand letter sent to the Respondent
Committee of Bar Examiners on behalf of
Petitioners’ and the letter of Respondents
■ ■ in answer to the demand letter of
Petitioners 1. !
27 Affidavit of Sam Birenbaum, authenticating
the attached Joint Resolutions of +-he
Student Bar and Lav; Association of Hast
ings, U.C. Berkeley, U.C.L.A., Stanford
and the University of Southern California,
opposing the present Bar Examination.; . ' I
28 Affidavit of Mario Obledo, Esq., estab
lishing admission of the Bar Examiners
as to the absence of validity information
on the Bar Examination.
23 Affidavit of Sheila Dale, demonstrating
the economic and chilling effects of
failure of the Bar Examination for
minorities.
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AFFIDAVIT OF PETITIONER
HENRY ESPINOZA
TATE OF CALIFORNIA )) S3.
OUNTY OF SAN FRANCISCO)
I, HENRY ESPINOZA, being first duly sworn, depose and
ay:
1. My name is HENRY ESPINOZA, I am 28 years of age and
y permanent address is 2006 N. Broadway., Los Angeles 90031. I an
Mexican-American citizen of the United States and the State of
♦
alifornia.
2. In September of 1968 I entered the University of
alifornia at Los Angeles School of Law after receiving my Baccalau-
eate Degree the preceding June from San Diego State College.
3. During the course of my education at UCLA Law.School,
successfully completed all required and nonrequired courses in
-hich I was enrolled. I particularly excelled with regard to my
'erformance in the areas of Oral Advocacy, Contracts, Federal Court?
legislative Drafting and Constitutional Law.
4. During this same time period I was elected President
if the First Year Class and later was' elected President of the Law
ichool Student Body. I was also elected President of the UCLA
liapter of the legal fraternity Phi Delta Phi.
5. In the summers between my years of legal instruction
: was employed in an apprentice or assistant capacity to establish:-
.aw firms. In' 1969 I worked with the California Rural Legal Assist-
PET.ITIONER’S EXHIBIT .1
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ice Program in Salinas, California.. In 1970 I was employed by the
jgene Wyman Law firm in Beverly Hills, California.
6. My employers at both of my places of summer employment
:>und me eminently well qualified to handle a wide range of legal
ed legal related problems and tasks.
7. Although I received my Juris Doctor degree in 1971, I
id not take the August 1971 Bar for several reasons:
a. I felt somewhat intimidated as a minority person
ince I was particularly aware of the highly disproportionate number
f minority failures which accompany each of the recent bar examine-
>ions-.
b. Partly as an outgrowth of "a" supra, I decided to
ake the extra time in extensive preparation for the exam. (The other
elated reason which caused me to delay taking the exam is discusser
ully at paragraph 8 infra.)
c. Due to my very limited financial resources I wa's
nable at that time to afford the bar review courses which virtually
very graduating law student feels compelled, to'take in preparation
or the Bar Exam.
8. The additional reason for my reluctance to take the
igust exam was that I did not feel' that law school or my practical
igal experience had prepared me for such an exam. The Bar Exam
id its concomitant evaluation procedures are, in my opinion, large..:
Lien to classroom teaching or the actual profession of legal pracu_-
lilc I can not surmise what it does test, I recognized that those
io enrolled .in Bar Review cram courses as taught by instructors wit.-
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;pecial.ized mnemonic and other trick devices seem markedly more
iuccessful than those who merely rely on their law school and. other
practical training. As-a result of all of this, I was forced to wait
mtil I could afford a cram course arid had developed considerable
>ractical background in taking sample or old Bar Exams.
9. In February, 1972, I took the California Bar Examina
tion. In May of 1972 I was informed by the Committee of Bar Examiner
that I had failed to pass the exam, a pre-requisite to certification
:or admission to practice. Inasmuch as I have satisfied all other
criteria required for certification to the Supreme Court and am of
4
food .moral character, the action of the Committee of Bar Examiners
■ n failing 'to certify me on the basis of my performance on that exam,
ls the sole obstacle preventing me from receiving a license to
practice lav? in California.
10. Equally harmful have been some other effects of the
present Bar Examination process. I was unable to gain employment in
:he legal profession because I would not take the August, 1971 Bar.
Vt one point I was even forced to collect unemployment insurance.
11. By far the most egregious effect of the Bar has been
)’n the Mexican-American community, the group I primarily wish to
serve as an attorney. The failure of the Committee of Bar Examiners•
. I„o certify me and dozens of other minority attorneys, because of thirj
arbitrary and conjectural examination, deprives these communities of
the effective lawyers which they so desperately need. The Mexican- j
. . IAmerican community is particularly hurt since only about 200 of the
35,000 attorneys are Mexican-Aipcricans licensed by the St,ate Bar m I
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a State where Hexican-Amcricans are 15% of the population.
12. These harmful’ effects all grow out of what I believe *
• . ' !
Ls an unnecessary, arbitrary and fault-ridden bar examination which
ILs not related to the job of being a lawyer. Yet this same exam
iprecludes me and others like me who have graduated from law school
lready evaluated and accredited by the Committee of Bar Examiners
rom entering our chosen profession.
13. I fully encourage any number of practical experience
r other affirmative evaluative alternatives to end this unnecessar
liscriminatory and onerous barrier.
/
n
(HENRY ESPINOZA, Affiant / X
/o•V, '
ubscribed and svrorn to before me
;his 8th day of June, 1972.
v .\? Tt- f V'vv
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•-.o, C /■•
y : C y > A / v t
Notary Public / •
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AFFIDAVIT OF PETITIONER
LAURA M. HOLT
RATE OF CALIFORNIA )) s s. .
!)UNTY OF LOS ANGELES)
I, LAURA M. HOLT being first duly sworn, depose and say:
1. My name is LAURA M. HOLT. I am a long time resident
f the State of California. My permanent residence is at 1739 VJ.
dams Blvd., Los Angeles, California.
, 2. I am a Black female graduate of the University of
*
alifornia, Berkeley School of Law (Boalt Hall), an institution
ccredited by the Committee of Bar Examiners of the State Bar of
alifornia and one of the leading lav; schools in the State. I am
ver 21 years of age.
3. Prior to commencing my study of lav; I successfully
ompleted four'years of college education as evidenced by my receipt
'f the Bachelor of Arts degree from Los Angeles Pacific College.
arther, I believe that my character is such to exceed the good
aral character standard adhered to by the Committee of Bar Examiners
4. During the course of my 3 year study of law I success-
a l l y completed all of the required subjects and all other optional
curses in which I enrolled. In addition, I also excelled concerning
y performance in the areas of Constitutional Law, Legal History ana
egnl Research.
' / /
PETITIONER'S EXHIBIT 2
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5. During the summer of 1969 I was employed as a research
assistant to Professor Robert O'Neal (Boalt Hall). The following
summer I was employed by the large Mew York corporate firm of Rosenru
Eolin, Kaye, Petsohek, Freund & Emil. During-my third year of lav:
school I was a lav: clerk to the criminal law firm of White and
Eruikshank.
6. Upon my graduation, I was offered and accepted an
associate counsel position with the Attorney General of the State
D.f California. I served in that capacity at both the San Francisco
and Los Angeles offices. My duties were varied including substantive
*
Legal research, the drafting of pleadings and preparation of memoran
da .
7. In April of 1972, I chose to leave that office in favor
af accepting an offer from a private practitioner W. Gaines Hill,
Inc. Since that time I have been successfully employed in that
Dfficc. My duties there have included legal research, the drafting
sf briefs, the preparation'of memoranda, and participating in
depositions and various court hearings. ,
8. Having satisfied all other prerequisites, I applied for
and took the general Bar Examination of the State Bar of California
ijiven on February 24, 1972. On or about May 15, 1972 I received
written notification from the Committee of Bar Examiners of the Stat-
Bar of California that I had failed to pass the California 'Bar
Examination and, therefore, would not be certified to the Supreme
lourt for admission to the practice of law. No other reason was
j.iven for such denial and no other reason for -such denial existed
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hat tine or at the present time.
9. Solely, as a result of my failure on that examination
ive now been precluded from obtaining a California license to
.tlr„ the profession for which I have been -fully trained and pre
* in an accredited law school of the State of California. «ore-
r, my competence to practice has been fully reaffirmed by the
uty of my work since graduation from law school.
f • a 4-r> nnss that examination I
1 0 . As a result of my failure to p a-
, been terminated from W. Gaines Hill mo. It has been virtually
jossible to obtain legally related work without having passed the
•“ a result of my failure to'pass that examination I
j e bad to go into' debt in order to prepare for and take the examrn
ion again. My regular bills are now due and this has so increased
3 strain on me that I have found it difficult to study for the
xt exam.
12. I feel I am fully qualified to practice law in the
m ..Vnred by my Graduation from an accredits. ■ ate of California as evidenced -
• • -inri experience as outlined abo\ o.IW school, background, training, and expoirc,
T believe I should be certified for ao ; a consequence thereof, I t e n -
iVsion to practice in the State of California regaidlot
.rformance on the arbitrary and unnecessary examination which the
ommittce on Bar Examiners administers to applicants for licensing.
t n
(’ LAUPJV M. HOLT, Affiant
scribed and sworn to before me
. day 'of June, 19 72.
/
. M/
/
(>! ri< i.\i. s: it PHYLLIS It nOoHK-:?V) NOTARY rUALIC-C.M.rr: " w LOT, ANOfirS COUNTY
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I
AFFIDAVIT OF PETITIONER
J JIMMY D. LOFTON
i
i
STATE OF CALIFORNIA )) s s . :
COUNTY OF SAN FRANCISCO )
I, JIMMY D. LOFTON, being first duly sworn, depose
and say:
1. My name is JIMMY D. LOFTON, I am 36 years
of age, and my permanent address is 2222 Scenic Street,. El Cqrritc
California. I am a Black male citizen of the United States and
State of California.
2. In September of 1968 I entered the University of
California at Berkeley School of Law (Boalt Hall). I had previo.-
received my baccalaureate degree from the University of San Frances
in June of 1965.
3. During the course of my education at Boalt Hall
I successfully completed all required and optional courses in vine.
I was enrolled. I particularly excelled with' regard to my per
formance in areas of oral advocacy and trial practice.
4. During my education at Boalt Hall I was also
involved as an associate editor of the school newspaper and a
teaching assistant in the under graduate Block Studies program.
In addition, in my third year between the months o j . October ano.
June I was employed part time with a small general practice 1
firm in Oakland, Dixon & Cox.
5. In the summers between the years of lav: school
PETITIONERS EXHIBIT 3
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I
I was employed in an apprentice or assistant capacity with estab
lished corporate law firms. In 1969 , I worked with Cooley, Crovlo"
Gaither, Godward, Castro & IJuddlcson, a large San Francisco corporaf;
law firm. In 1970, I was employed by Skidmore, Fletcher, Smith &
!Lasky a middle size corporate law firm in the City of Oakland.
6. My employers at both of my places of summer*
employment and at my part time job..with Dixon & Cox found my
work to be considerably more than adequate and often excellent.
7 Mv work was of such a quality that X received
offers for permanent employment from rav 1970 employers and an oij.ei * “
of * a partnership from my 197 0-1971 part-time job. t
8. Upon graduation in June 1971 I accepted an offer
to join the Litigation Section of the Law Department of Pacific
Gas and Electric, one of the largest corporations in the State of ,
California. I am at the present time still employed by P.G. & E .,
but, as is explained infra, I have been demoted to the position of .
|investigator in the claims and safety department.
9. My practical work experience has been quite wide
and varied. It has included, but not been limited to the drafting
of complex legal instruments, general litigation pleadings, and
both pleadings and documents for probate proceedings. I have
written extensive briefs and legal memoranda. I have been primar.
responsible for the preparation of witnesses'for litigation an;.-
dcoord tion. As a law student and a recent graduate who was cert
ified to practice lav; under tire special law student exception, I
was responsible for the taking of deposition's including those of
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nodical export witnesses.
10. In February 197 2 I tool; the California Bar
Examination. O'n or about Fay 15, 1972 I was informed by the
Committee of Bar Examiners that I had failed to pass the examin
ation, a pre-requisite of certification for admission to practice.
Inasmuch as I have satisfied all other criteria required for
certification to the Supreme Court and I am of good moral characte
the action of the Committee of Bar Examiners in failing to certifv
me on the basis of my performance on that exam, is the sole
obstacle preventing me from receiving a license to_practice lav;
4
in.the State of California.
11. I had previously been informed in December 1971
that I had failed to pass the California Bar Examination as
i
administered in August 1971.
12. The effects of my negative experience with the
California Bar Exam have been numerous. My position with the legal
department of PG&E was terminated and I was transfered to the
Claims Department as an investigator. In addition to the curtail
ment of my practical legal training, this change caused severe
economic heartship for me and my family of four: a $300 reduction
in my monthly earnings. This loss is of course only part of the
costs incurred. There is also the $600 which I have spent for
applications to the bar and various "cram" bar review courses and
the more than $1,000 in lost income which I will be forced to Iocs:
in order to attempt, once again, preparation for the next bar
examination. ■. ; •
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by taking the Bar Examination and failing to pass that examination,
' - I
there are concomitant severe emotional, psychological and social
stresses. While I know of no evidence of studies which show that
the bar examination is actually determinative of competence as an
attorney, there is, nevertheless an unsupported general feeling ir.
the population that the exam is an accurate test of one s abiliu
and, conversely, that failure on that examination indicates a lac.-.
of such ability. This belief has caused I and my wife (a first
year law student at Boalt Hall) to be subjected to .various comments
* ■
slurs, criticisms and derogatory remarks concerning my abilities
as an attorney from colleagues, acquaintances, and even strangers.
.
This effect is probably most amply demonstrated by the demotion i.. ^
i
my employment position which I suffered.
14. The cessation of any opportunity to gain further
i
practical experience as a practicing attorney has several other
effects other than the personal detriment. I had planned to
establish myself in the near future as a private practioner,
attempting to serve some of the presently unanswered legal needs cf
the Bay Area's Black communities. As a necessary pre-requisite
to this I felt I needed several years in practice as a corporate
attorney. Since I am no longer gaining such experiences, the
commencement of my services as a private attorney to the Black
community is being proportionately delayed by the passage of cac.:
day.
15. Since I have been active in civil rights and
13. Besides the verv obvious financial burden imnosed i
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community activities in the Bav Area for many years I know that this
last effect is a particularv harmful one. It. means that although
I am a successful graduate of one of the top law schools of .the
State, one that has already been accrcdited .by the bar examiners, l
and one which has already evaluated me as competent under far more,{
relevant and realistic circumstances than those surrounding the bar;
!exam, I am still not permitted legally to practice the profession
for which I am fully trained.
'16. Finally, it is my uncategorical opinion that the :
Igeneral bar examination as administered and graded bv the Committee
iof Bar Examiners has little if any relationship to competence as a
lawyer for myself or the overwhelming number of other minority
graduates who find themselves similarly situated.
i17. I reached this latter conclusion based on my own i
extensive and successful practical experience in legal work ana the.i
closely related practical experience history of many of my similar!;
|situated colleagues.
!18. It seems clear to me that an evaluation or my
actual performance in the legal arena would-be far more valuable t~.
the profession and far more accurate as a barometer of my abilitic
than the limited-time artifically-inspired, and, insofar as I know
totally unvalidated writen examination presently in use-./■* . /. v_,w -=—
A~ ;/ p; ),.// _
/ JIm|Tŷ !)’7’ BOFi.tili’, 7AFf iant/
L-'"
/
Subscribed. and sworn to- before
mo this y/<v* day of June, 1972. v*’- ' •<4 f\‘"i* K
7 - ' _ m S y y
“j-l i V.IVv R V “4 vV l * L .1. C . y
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AFFIDAVIT IN SUPPORT OFf p e t i t i o n e r s -Vl a i n t i f f s
State of California )) ss.
County of Los Angeles ) •
I, Charles E. Jones, being first duly sworn state:
1. I am the Executive Director of the Los Angeles
Legal Aid Foundation ("Legal Aid") and am personally familiar
with the facts set out herein based on personal experiences
and observations. ■ •
2. Legal Aid provides legal services to the poverty
community of Los Angeles and is funded primarily by the
Office of Economic Opportunity.
3. A great number of Legal Aid clients are members
of minority groups. To properly represent these clients, it
is necessary for a lawyer to be familiar with and understand
the grievances and injustices they are required to deal with.
Further, it is necessary to be able to communicate with the
clients and have the clients’ confidence. Lawyers from the
same community as the clients, who have shared their clients'
experiences, arc generally able to establish rapport more
quickly and to deal with these problems more effectively.
There, is, therefore, a great need for lawyers from the
minority community.
4. Due to the above, Legal Aid is constantly attempting
to recruit minority group lawyers. Legal Aid has not, however
been able, to successfully recruit the number of minority group
lawyers that are needed.
5. Based on my knowledge and experience it is my
opinion that the above referred to shortage of minority gro..;.
lawyers is duo, in substantial degree, to the, maijpci- in v.Lî ••
- 1 -
PETITIONEP.' S EXHIBIT 4
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the California Ear Examination is structured^and administered.
Some of the reasons for this condition are:
1. An unreasonably low number of minority
group members pass the Bar Examination. .
2. A high number of the minority group who
fail the Bar Examination cannot afford to devote
the necessary time required to take the Bar Exami
nation over again until they pass.
3. Because of the generally low rate of
success in passing the exam, many minority group
members are discouraged from attending law school.
6. Finally, the structure of the Bar Examination itself
diverts the attention of candidates to the "Bar courses"
and away from poverty law areas'. Little if any attention is
given to the areas which are critical for poverty lawyers,
such'as consumer fraud, welfare rights and urban renewal.
As a result, the law students are forced to concentrate on the
Bar courses t:o the detriment of poverty law courses and all
too often to no avail.
7. Due to the serious demand for lawyers from the
poverty community, the negative impact of the Bar Examination
on .the supply of such lawyers and the questionable value of th
Bar Examination in determining one’s ability to practice law,
it is submitted that the Bar Examination in its present form
should be eliminated. . . .
Charles E. Jones
Subscribes and sworn
v-f'ime this ^ day of
to before
C J'V0 ^ a t • ~ ''ey :> ornciAi. r-r.M.
y.'-y c c;;a t. clock !•y.’l N.n.Mii iMiniS • C M I . ""■'/ ' 41- rif; - . • • • • “
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A>
PLAIKTIFF/PETITTONERS >
STATE OF CALIFORNIA )) ss.:
COUNTY OF SAN FRANCIECO ) •
I, Charles E. Wilson, being first duly sworn, depose and
AFFIDAVIT IN SUPPORT OF ' '
say:
3« I am a member of the- California Bar and have been so
since May, 1950. I am presently practicing as an attorney.
2. 1 am a black attorney who has been engaged in the
private practice of law for 22 years w5.th much of my clientele
coming from the black community in the cities of the Bay Area in
•Northern California. I am familiar with the California Bar Exam
in general and in particular as to its effects on the black
population of the State,
3. I personally believe the examination is an unnecessary
obstacle to the licensing of black attorneys and a major disservice
to the black client community in this state.
4. Particularly in trying to adequately represent indi
viduals from the black community today, the rapport which comes
from beine of the same mace rs often essential,
5. Without such rapport any or all of the following may
occur for the white attorney:
(1) Certain sources of information may not be
available at all or only in a very limited sense;
(2) The client may not develop all’of the
circumstances which lead up to the legal problem
or may have trouble communicating circumstances
* f
P13TIT3 OWEN' S EXE
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»r
in a manner comprehensible to the attorney;
(3) The client may, out of embarrassment, distrust
or misunderstanding*' fail to disclose critical facts to
the attorney;
(4) The client, in the case of the assigned criminal
attorney, may simply refuse to cooperate seriously with
the white attorney.
(5) The minimal presence of black attorneys has
many other effects, one of these is simply the virtual
absence of black judges throughout'the State. For
instance, on the. federal bench I know of only one black
judge among those sitting on the four U.S. District
Courts and U.S. Court of Appeals in the State.
(6) \ The overwhelming absence of black faculty
among the lav? school professors within the State is
another detrimental effect, just as is the dispropor
tionate absence of black attorneys among the criminal
and civil attorneys of municipalities, counties, and
the State.
(7) Perhaps the worst effect of all is the minute
number of private black practitioners who are available
to most effectively serve both the poverty and non
poverty minority community within the State.
W ( l ,
CHARLES )i. \.’ILEO’d, Affiantr 7
Jubscribcd and sworn to before me
'.. 1 v o f A p r i l , 197?- •' 51: : r'
•' • 1 •' • • ,) i:
. ' n In. . . . J . «.
V - ' 9 / 44- / ' ; \
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y P u b l i c
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2D
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• MEXICAN' - AMERICAN BAR ASSOCIATION
STATE OF CALIFORNIA . )
) ss.
COUNTY OF SAN FRANCISCO )
I, LOUIS GARCIA, Esq., being first duly sworn, depose and
AFFIDAVIT OF PETITIONER
say:
1. I am the President of the Mexican-American Bar
Association of California. My business address is 870 Market Street
Suite 401, San Francisco, California 94102. I have been a member
of the California Bar for 19 years. I have been active in legal
circles and particularly legal services, concerning the minority
community for the last 20 years. During the course of my associa
tion with the M e >: ic: a n - Am c r i c a n Bar Association I have been involved
with numerous matters of litigation and extensive dealings with the
Mexican-American community of California. TJiis has been the general
experience of the great majority of the membership of the Mexican-
American Bar Association.
2. We have been regularly besieged by the pleas of
individuals in the Mexican-American community, who either lack legal'
representation or feel they have received inadequate legal repre
sentation in bolii criminal and civil matters.
3. In attempting to deal with the many problems that
have been placed before us, we have realized the greatest obstacle
to effective legal assistance is the miniscule number of Mexican-
American attorneys licensed to practice in California. A survey
of our membership and affiliates has indicated that there are only
PETTT1ONERE' EXHIBIT 6
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195 Mexican-Amcrican lawyers licensed to practice in California.
iThis number compares very.unfavorable with the 33,000 lawyers
licenced to practice in a State where the Mexican-American popula-
'
tion is 15%.
4. While in recent years this problem may have been a
result of the exclusion of Mexican-Americans from the lav; schools
in this State, such is no longer the barrier to Mexican-American
participation in the legal profession. Instead the barrier is now
the general Bar Examination of the State of California. .■
5. Whatever the reason may be, the reputation of the
1 _ ' iCalifornia Bar Exam in the Mexican-American community is that it
fails minority persons and particularly Mexican-Americans in numbers
extremely disaproportionate to the failures of Anglos taking the
same examination. Moreover, there is a strong conviction that in
the past this was an intentional result, and that in the present,
!even if it is not intentional, the same result still obtains.
6. The failure of Mexican-Americans on the Bar Examinetier
.by the Committee of .Bar Examiners has several other effects, in
cluding but not limited to:
- The discouragement of our young people from even
attempting to attend law school since they know the obstacle of the
Bar Exam faces them afterwards.
. i
- The discouragement of many of our young people who are
already attending law school still fear that they will never be abl
to surmount the obstacle of the Bar Examination.
/// •
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- The harmful, cumulative psychological, effect of these
fears and others among our people when they are actually undergoing
ithe bar examination process. • •
j
- The continuing hostility of many of our people for State
jBar of California which is the believed to be the creator of this
exam which excludes our potential lawyers.
'- The denial to our people of their right to be most
effectively represented by culturally sympathetic and Spanish-
• i
speaking attorneys. * |
7. This last effect is perhaps the most harmful. We
Ioften run.into the problem of a criminal accused or civil petitioner
jor respondent who .x simply does not speak English well. The problems
■
of communication with a non-Mexican or non-Spanish-speakang
i
attorney should be apparent on the face of this situation. Even if
an Anglo attorney does speak Spanish this only goes to part of the
’problem as the historical distrust of the majority culture which
many of our people feel may still be a serious barrier.
8. As attorneys and active members of the California
Bar, we. have the highest of faith and regard ‘for the accredited
law schools of this State. We feel that admission on the basis of
successful completion of the course of study in any of these
schools should be the primary basis for admission to the practice
of lav;. If it is necessary to have an additional check on the
/// ■
/// • . '
/// . ‘‘ •
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comoetonce on these graduates then evaluation of their performance
in the actual practice of law seems to us to be a far more effectivei
and reasonable alternative than subjecting such graduates to a
several-hour, written examination, which is only speculatively
based on a limited number of the skills and aptitudes necessary for
competence as an attorney.
i
Subscribed and sworn to before me
- - 7'/this i day of June 1972.
/ / ' /y' !)
Notary Public 4'
(-‘V 1
„. . *; \• ;-it!
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•, i>- vv »;
o : a a :! /- .! . s e a l
• ; v • ^ rc:-vir* "1>M- h
-.V i . "■Ml: • C V i: . .. . '1 ! >
V ’.» / i*.v! 1
r. ( . - s - ff.r: c.
vy »; v • v-'; ̂ •/:s- »»H -V , . v 1. - ^
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NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
WESTERN REGION • '
AFFIDAVIT OF PETITIONER
STATE OF CALIFORNIA )) ss.
SOUNTY OF SAN FRANCISCO)
I, LEONARD CARTER, being first duly sworn, do hereby
lepose and say:
1. I am the Reg.icnal Director of the National Association
;or the Advancement of Colored People, Region I, West Coast Region,
ly business address is 995 Market Street, San Francisco, California
>4103. I have been active with minority organizations in the Black
community in California continually for the last 7 years.
2. During the course of my association with the NAACP
[ have been ■ involved with numerous -matters of litigation and have
ittempted to aid an uncounted number of individuals who arc continu
ously faced with legal problems in their search for redress of
grievances.
3. My greatest problem in this area arises from the very
small number of Black attorneys who are licensed to practice in
California. Our organization receives, on a daily basis, dozens of
requests for legal aid, the bulk of which come from California. Or.?.
-t small fraction of these cases can be referred to the offices of eu
jencrnl and special legal counsel. Moreover, the attorneys, who are-
affiliated with us or who have indicated an interest in attempting t
PETITIONER 1S EXHIBI'
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ial with the legal problems of the community which we serve, are all
idly over-worked and only-available on the most limited bases.
4. The result is that many.of the problems which reach our
rfices often go unremedied, or at best are treated hastily and
i complately.
5. This problem is further compounded by the fact that marc
i
E our Black citizens do not have the faith and trust in non-Black
ttorneys necessary for placing their problems in those hands (no
atter how competent the non-Black attorneys may be). A more
bvious problem arises among the Spanish-speaking individuals with
liom *wc have reason to deal. Their barrier in communication is not
nly a cultural and historical one, but also that of a dissimilarit
\
n language.
6. An intermediate solution to which I have turned in the
ast has been the use of minority law students on a part time basis
liis has of course been only a stop gap measure in that these in
ividuals have only had part of their legal training and have
irtually no practical background experience' in the legal field.
I7. Perhaps most disconcerting is one consequence of my
xpcrience with minority law students: their failure to obtain a i
icense to practice in California. I am referring to their failur'.-. »
o pass the California Bar Examination on the first or even on the
•ccond time. While in and of itself this might not trouble" me, it
lovcrtheless docs because of the extremely positive evaluations v:!iic.-
iur counsel lias given these young people during their experience
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th our office. Insofar as they are concerned I can only conclude
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■hat the Bar Exam must not be an accurate test of legal competence.
8. Insofar as the Black and minority communities as a
?hole are concerned I can only extrapolate from my personal experi-
:nces and conclude that there is a desperate need for minority
ittorneys in this state and that need is going unanswered in large
>art due to the unnecessary obstacle of the California Bar Exam.
i
9. We strongly feel that some alternative, more reasonable
md practically oriented measure of competence should be adopted.
)ATED: June ̂, 1972
LEONARD CARTER,’ Regional Direc
NAACP, Western Region, Affiani
Subscribed and sworn to before me
:h.is ,y day of June, 1972.
i! MYRTLE 0. HUTCHINSON >f i ) -otakv public • California %
<j y <•••»>• and County ;,l ;'\!i fCA,';CISCO j(
f! _ - Commirs:onf.xplrosI)--:.?. l $ n \
/__ 4/1A a C, - JL ,L O. C'tyJ
I Notary Public
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AFFIDAVIT OF PETITIONERS
CHICANO LAV? STUDENTS ASSOCIATION
STATE OF CALIFORNIA)̂
Cl C • ‘/ iJ » j ♦ • ,
COUNTY OF YOLO )
I, JESUS GENERA, being first duly sworn, depose and say:
1. I am the President of the Chicano Lav; Students
Association, the largest Chicano Lav; Student's organization in
California.*
2. I aril familiar with the California Bar Examination*.
and its effect, particularly in reference to the State's students
enrolled in the accredited law schools.
3. It is my opinion that the examination .is a major
detriment to the development of any but a token participation by
minorities in the legal profession.
4. This occurs in the following ways: •
A) Minorities in high school and college hear
about the excessive difficulty of tire Bar Exam and are deterred
from even entering lav; school;
*Our or
accredi
UnIvors
Cali for
Univers
llasti ng
Univers School
Lav; Con
g a n iz citron is composed of members from the following
ted California lav; schools: .McGeorgc School of Law;
ity of California School of Law, Davis; University of
nia School of Lav;, Berkeley; Stanford University Law Echo
ity of San Francisco School of Law; University of Califor
s College of the Law; Golden Gate College School of .Law;
i. ft
ity of
r Law, Los Angelant a Clara School of Lav;; University of Calif ornioi
.ter; Loyola University School
'jf San Diego School of Law.
University of Southern California
of Law, Los Angeles; Univer:
PETITIONERS1 EXHIBIT J L
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B) There is the generally accepted belief in the
minority community that th.o Bar Ex an has flagrantly discriminated
in the past and that for the present, the State has just switched
to more subtle methods;
C) The effect of the failure on the Bar Exam by
that unique individual from the ghetto or barrio who manages to
successfully complete lav; school is a special deterrent for
potential minority lawyers.
(1) This is the "if he can't make it, how can
I" feeling;
D) Once a minority student is in lav; school he
ins to hear only second hand (as opposed to general rumors)
about otherwise successful minority graduates who failed to pass
the Bar the first, second, third and even fourth times;
5. In addition, there is a cumulative effect of all of
these psychological pressures which seems to seriously inhibit the
minority exam taker in the highly limited written situation of the
California Bar Exam.
6. It is also my perception and a.perception shared by
rthcr representatives in our organization, that the Exam suffers
:rom several other major defects. The following is a partial list
?f such defects:
A) Unless passed the first time, the Exam becomes
mostly to minority students who are very often already heavily
subsidized by financial aid- programs;
B) The Exam does not -effectively distinguish
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between comneteiit and incompetent lawyers, since there are, in rayii
own experience, many not yet' qualified individuals who have
■passed the Exam and when large numbers of blacks failed the Exara.
| C) Whether or not' it is really necessary, virtually
'all law students now spend two to three months cramming for the
iBar Exam. This is a very costly process in terms of time and
money. Horeover.it is doubly costly to the minority student who
jean least afford tire expenditures, and who may well have to repeat
(the expenditures.
/ D) The Exam seems to concentrate on only the mostiIjtraditional areas of lav;. Rather than testing the newer develop
ments, those areas which are.so important to minority communities.I ", \E) The Exam is also limited in the subject matter
which it tests, e.g., the ability to communicate successfully with
clients, a crucial problem for the black and brown communities due
to the under-representation by minority attorneys, is not tested.
7. For all of the above reasons I and my colleagues in
the association are actively opposed to the■cohtinuation of the
'California Ear Exam as presently constituted..I-
8. We would eagerly support any number of reasonable
[alternatives to end this discriminatory obstacle.! <*I 9. Two alternatives which we could wholeheartedly
support would be the implementation of a post-.graduation probation
Jperiod, or the inclusion within the curriculum of a strictlyr -
evaluated clinical experience. This seems to us to bo a far
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lore responsible method of testing and one which we feel would
;nd the discriminatory impact of the State Bar Exam.
C-
% _______________________JESUS GENERA, President of the
Chicano Lav/ Students Association
(Affiant)
Subscribed and sworn to before
ne this day of April, 197 2
y, v , 'yf, y.l.-v v \ S-:' •/ a -
NOTARY PUBLIC/7/ /
, ROSALYN FINLF.Y J
• idin us'd\I?.- V
YOLO COUNTY \
'kw 7lrvvvwvrv w
!.’y Cf.T.r:!' :';m t : ? .cs Aujruit 3, 107?.
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AFFIDAVIT OF PETITIONERS
IIORTIIEP.il CALIFORNIA CONFEDERATION
OF BLACK LAV/ STUDENT ASSOCIATIONS
jTATK OF CALIFORNIA )) ss . :
IOUNTY OF ALAMEDA )
I ANTHONY WARD, being first duly sworn, depose and sav:
1. I am the Executive Secretary of the; Northern Calif
ornia Confederation of Black Law Student Associations the largest
Black Law Student organization in California. Among the primary
purposes of our organization is the eradication from our profession
of racial discrimination in any form.
2. The organization is composed of members including
but not limited to those from the following California law schools:
University of California Berkeley, Stanford, Davis, Hastings, and
the University of Santa Clara.
3. We are familiar with past California nar Examine.t
and their effects particularly as pertains to the more than 100
black s t u d e n t s enrolled in the accredited law schools and the bine
community as a whole. Our organizations take the following positi:
4. It is our opinion that: the Examination is a majo^
detriment to the development of any but a token participation by
minorities in the legal profession.
5. This occurs in the following ways:
A. Blacks .in high school and college hoar about tk
excess W o difficulty of the Bar Exam and a r e deterred from even
PKTJ'I*.TONER ' S EXHIBIT 9________
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n to ring lav; school;
B. There is' the generally accepted belief in the
1 act corarauni ty that the Bar Exam hac flagrantly discriminated in
he past and that for the present, the State has just switched to
ore subtle■methods;
C. 7\lso there is the special, deterrent to Black youth
hat comes from the publication and communication of the failure of
■hose unique individuals who having overcome the obstacles and bond-
ige of the ghetto to complete law school still can not pass tne
jeneral bar exam.
* D. Once a Black student is in law school he begins
:o hear only second hand (as opposed to general rumors) about other-
rise successful minority graduates who failed to pass the Bar the
lirst, second, third, and even fourth times.
6. In addition, there is a cumulative effect of all of
these psychological pressures which seems to seriously inhibit the
minority exam taker in the highly limited written situation of the
California Bar Exam.
‘ 7. It is also my perception and a-perception shared by
other representatives in our organization, that the Exam suffers
from several other major defects. The following is a partial list
of such defects:
A. Unless passed the first time, the nxam becomes
c o s t l y to minority students who are very often already
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heavily subsidized by financial aid programs;
. E. The Exam does not effectively distinguish between
competent and incompetent lawyers, since there are in our experience
many not yet qualified individuals who have passed the Exam
when large numbers of blacks failed the Exam who were competent.
C. Whether or not it is really necessary, virtually
all law students now spend.two to three months cramming for the
Bar Exam. This is a very costly process in terms of time and money.
Moreover it is doubly costly to the minority Student who'can least
afford the expenditures, and who may well have to repeat the expen-
dittores. .
D. The Exam seems to concentrate on only the most
traditional areas'of law. Rather than testing the newer develop
ments and, in particular, those areas which are so important to
minority communities.
E. The Exam is also limited in the subject matter
which it. tests, e.g.,- the ability to communicate successfully with
clients, a crucial problem for the black and brown communities due
to the under-representation by minority attorneys is not tested.
8. For all of the above reasons I and my colleagues in
the association arc actively opposed to the continuation of the
California Bar Exam as presently constituted.
9. We eagerly support any number of reasonable alter-
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natives to end this discriminatory obstacle.
30. Two alternatives which we could wholeheartedly supper
wou^d bo the implementation of a post-graduation probation period,
or the inclusion within the curriculum of a strict!.v evaluated
clinical experience. This seems to us to be a far more responsible
method of testing and one which we feel would end the discriminator
impact of the State Bar Exam.
•7
/ w 7
'*7/, ( / / A - M . 5-
ANT 110 i3YT?ARD, Executive vSc;cretary for the Northern California Confederation
of Black Baw Students Associations,
Affiant
ibscribed and sworn to before
me this day of _) A , 1972
Notary Public
V - ^ 7 - b
5: A " '
7 ; , o i - t i c i A L s s
*• 7 , C - 0 ! C . « C t ; :
A t
;\tozAV •
/ l X . i.Oi'AriY > < J . - CA
o V ' :
•>/'} .w. m' v r.‘W 'Cxi ' C
' / 1,7/ : t..i,*i*«‘"io ‘i I* ; ires f-
OU.J'iV
•v 2. >
. i. 7 ;>• ,*.•*•/ V ' 1 ■v-' *- <-t. * • V
ca . C-CO?,
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AFFIDAVIT IN SUPPORT OF PETITIONERS
STATE OF CALIFORNIA ) > '
!l > ’COUNTY OF ALAI‘EDA ) SS. :
I I, MICHAEL AS1IBURNE, hereby declare that:
1. My name is MICHAEL AS13BURNE, I am a resident of th
i
State of California, residing at 2520 Grant Street in the City of
II ‘ •perkeloy, County of Alameda.
2. I am a member of the California Bar, I am a former
co-director and present staff attorney of Berkeley Neighborhood
Legal Services, an O.E.O.-funded legal services program, providin
legal advice and service to the poverty community in Berkeley.
3. I am a graduate of Boalt Hall School of Lav;, Unive
sity of California''at Berkeley where during my tenure I had occas
to conduct research into the effect of the California Bar Exam on
the Black law school graduate. I also served on the school's
special admissions and recruitment committee for- minority student
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which had the responsibility for reviewing, interviewing and maki
recommendations to the faculty on minority applicants from disad
vantaged backgrounds.
4. As a practicing legal services attorney, my experi
has shown that my own minority heritage lias been invaluable in
enabling me to deal with the legal problems of our minority clier
23 lie speak the same "language," have had s i m i l a r , experiences and
24 are able to communicate fully and openly with each other. In
25 ;!.:hort, the confidence and rapport so necessary in the' attorney-
2G client relationship, comes very naturally. For these and other ii a
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reasons, I feel it is imperative that there be sufficient minority-
group attorneys to deal with the legal problems of their respective
communities.
5. As of 1970, the national census showed that Black
people represented 11% of the general population, but only 1% of
the attorney population. In order to provide the Black U.S.
population with the same ratio of attorneys currently available
to the white population, tens of thousands of Black attorneys are
needed. .
6. Although official statistics were not-available,
my research conducted with the cooperation or Dean Edward Halbach
of BoaIt Hall revealed that during the period from 1967-1969
inclusive, Blacks' in the accredited schools were failing the
California bar exam at almost twice the rate of whites, and while
over 5,000 lav; graduates were admitted to practice in the period,
less than 20 were Black.
7. Judging from my own personal experience and research,
I am convinced that the California Bar Exam is discriminatory
in its effect on Blacks, and. does not serve its stated purpose
of protecting the public from incompetent representation. I have
worked closely with recent Bar admittees and have found some of
them clearly inferior in legal ability to Black acquaintances
who have failed the bar.
8. I feel there arc several factors which are responsi
ble for the discriminatory effect of the bar which in no way
reflect upon the .ability of the Black bar applicant. Tljese
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(a) Lack of financial resources for support
iluring study for the bar; and
(b) Psychological pressure generated by the
jail-white exam-taking environment itself and the known history
of black failure on the bar exam.
9. In addition there tire numerous problems connected
with recruitment and operations of Legal Services Programs which
are the result of the racially discriminatory effects of the
California Bar Exam.
’ 10. Similarly there is the indirect effect on the
judiciary in the resulting extremely low presence of blacks on the
California State and Federal benches.
11. Given the discriminatory effect of the bar and its
apparent ineffectiveness to protect the public, it is my opinion
that it needs urgently to be replaced, by a better and less discri
minatory system if we are ever to meet the need of the Black
community for competent lawyers.
include, but are not limited to:
12 /
MICHAEL ASIIBURNE, Affiant
Subscribed and sworn to before me
’ '̂5 n .Ith is 33 a y o f Apr i 1 197 2
_A.A 7/V <■
N O T A R Y P U B L I C
VVM. It SHAW |f
\ 1101 ARY PlLLIC • CAl.lrOEi;l/\ f
A c o u n t y of a i_a m c iv \ |(,
' MyCo;'ii:ii‘.sinii Ltr.iic-jS:ii|. ??. Hi/T ;i.
26
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STATE OF CALIFORNIA )
) s . s .
COUNTY OF SAN FRANCISCO )
I, V7ILLIAM KASTIE, JR., being first duly sworn,
depose and say:
1. I am a 1971 graduate of the Boalt Hall School of
Law, University of California at Berkeley. I am presently
employed by Public Advocates, Inc., rr.v business address is
433 Turk Street, San Francisco, California 94102.
2. In September of 1971 I-was requested, by the NAACP
Western Region to compile an analysis of the 1969 black and
Chicano graduates of Boalt Hall in relation to their performance
on the general bar examination of California.
3. I was personally familiar with each of the seven
minorities graduating in the above mentioned 1969 class. Conse
quently, the methodology of my survey was to speak with each of
them and ascertain their performance on past California bar
examinations.
■
4. All seven of the individuals took the California
Bar Exam in August of 1969 and six of them failed that examination.
Three of the six failing candidates proceeded to immediately take
the bar exam again in February of 19/0. Only one of those three
: PETITIONERS EXHIBIT 11
AFFIDAVIT III SUPPORT OF PETITIONERS
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passed the examination. The two candidates who failed in February
proceeded to take the bar exam a third time in August of 1370 and
both of these,candidates passed.
5. Insofar as I know, the remaining three candidates
have failed to pass the California Bar Examination.
/ /
' /t.
. / '/ '
/
/
/ •/ /
U-/
C lWILLIAM HASTIE, JR., Affiant
Subscribed and' sworn to before
x/,;/ 'me this day of , •-/, , 1971./
o /
. <• / // ; - / \_7NOTARY PULI.IC
]i’ MYRTLE 0. HUTCHINSON ;(nor ARY PUBLIC ■ CALIrOr.CIA jf.
A ’. • ■•■IJ C 1 y jr(! Ccanly ol TAN fRANCISCO ;j|.
v .'rfx ' }/y Coma.iisiaa Expiies Dec.?. 1972 <|vX'-'v*
II<
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RE
AFFIDAVIT IN SUPPORT OF PETITIONERS
MINORITY LAM STUDENT SUCCESS RATE ON AUGUST, 1971
CALIFORNIA R \R EXAMINATION AND FEBRUARY, 1971
CALIFORNIA BAR EXAMINATION
STATE OF CALIFORNIA )
) ss , :
COUNTY OF SAN FRANCISCO )
I, ROBERT L. GNAIZDA, ESQ., being first duly sworn,
depose and say:
1. I have been a member of . the' California' Bar for
ten- (10) years, am a graduate of Yale Law School, and am presently
‘ |
a member .of Public Advocates, Inc., a California non-nrofit corpor- ;i
ation based in San Francisco, California. I am one of the counsel
for the Petitioners in Espinoza v . Committee of Bar Examiners.
2. During the months of August through October, 1971,
i
I and Mario Obledo, the Executive Director of the Hexican-Amorican
Legal Defense and Educational Fund, Inc., acting on behalf of a i.
number of the Plaintiffs named in the above-entitled action, met i
with and made specific requests of the Committee on Bar Examiners.
’We asked them to provide statistics on the number of minority
attorneys practicing in California and the success rate of Black
and Chicano lav/ students in regard to past California Bar Examin
ations, and to gather, or assist us .in gathering, the then about tc
be released statistics for the August, 1971 bar examination.
3. The Committee, and its Chairman, Mr. Francis
Marshall, informed ns, both orally and in writing, that the State
Bar never gathered or retained statistics as to minority lawyer
PETITIONER ximti T 1
5
1 identification, had no statistics as to the success rate of minorit
>
2 law students on the bar examination, and did not intend to secure
3 j such statistics in the future. This refusal to secure such static-
4 tics was made despite our informing the Bar Examiners of the fact
that virtually every corporation, association and union in the
United States with twenty-five (25) or more employees was required
j to identify the race, sex and ethnic background of its employees
j and to keep other relevant minority statistics.
4. Further, the Committee stated that not only did
it refuse to gather such statistics, but it would not assist us, or
support our efforts, directly or indirect]y, in gathering such
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statistics from the seventeen accredited California lav; schools
5. As a result of the Bar Examiner's refusal to
secure such information, assist us in gathering such information, or
Isanction our gathering such information, we were ourselves forced tc
attempt to secure this information from the seventeen (17) accredit
‘ !law schools. The requests to the -law schools wore made in writing ji
in October and November of 1971. In addition, we personally con-
Itacted some law school deans and a substantial number of Black and :
Chicano law student leaders. The response demonstrated varying
degrees of cooperation from such law schools. Although the vast
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majority of the lav.7 school s responded. (13 of 17) , a number dici so
only reluctantly. In addition, some law schools resprosentincj only
a small minority of the law school graduates, .refused to provide
such information on the ground that the school was, in effect,
"color-blind", and did not maintain such statistics.
6. The statistics gathered for the June, 1971 minori
»
law school student graduates of the'seventeen (17) accredited
California law schools, arc believed to be especially significant'
in regard to the California Bar Examination since that class is
believed to be the first in the history of the State to include a
a
substantial number of minority law student graduates (that is, more
than fifty).
7. \ The most significant figures, f-rom a statistical
point of view, relate to the law schools at the University of
California at Los AngeD.es and at Berkeley (BoaIt Hall). These two
(2) schools graduated more than half- of all minority graduates from.
the accredited schools who took the August, 19/1 Bar Examination.
The results from these two (2) schools were:
- Out of 38 Black and Chic'ano graduates,
only 14 or 36.8% passed.
^McGcorge School of Lav;, University of the Pacific;
University of California School of Law, Davis; University of
California School of Law, Berkeley; Stanford University Law Schocv
University of California, Hastings College of the Lav/; Golden Ga<
Co]lcae School of Law; Uni versity of Santa Clara School o, La..,
University of California School of law, Los Angelos; University
r cvoii-hAm p;,l i fnnvin l.nw Center: Lovola Univcrsitv Schoolo
Lav
Co.
Southern California Law Center; Loyola University School o;.
Los Ang'eles; University of San Diego School of Law; Bow-
lego of Law, and California Western College of Law.
:-] ev .
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The overall results for the thirteen accredited law schools
:responding were: :
)- Out of 73 Black and Chicano graduates,
only 3 2 or. 43.8% passed.•*
In contrast, 365 out of 432 or 84.5% of all Anglo, i.e. non-mincrit'
2/
1971 graduates of Boalt Hall and University of California at Los
iAngeles passed the August, 1971 Bar Examination; and, based on
statistics provided by the Committee on Bar Examiners, 76.4%
of all Anglo students from the thirteen responding accredited
law schools passed the Bar Examination.
J 8. On or about February 26, 1972, I participated ir. I
both a written and oral presentation to the Committee on Bar
Examiners of these statistics, as well as the presentation of a
rough draft of a legal memorandum we prepared as to the uncon-
stitutionality of the Bar Examination. At no time prior to or
subsequent to this meeting did the Committee of Bar Examiners agres
to gather any information relating to minority law students or
lawyers. .
9. During the month of May when the February Exam
results were available, I updated our survey with regard to the
graduates of Boalt lla.1.1 and UCLA. I found that of the 461 Boalt
Hall and UCLA non-minority graduates who had taken either or both
exams only 23 or less than 5% had now failed to pass. Out of the
2/ The performance of Anglo graduates war. computer im
subtracting the minority figures from the aggregate graduate per
formance figure.
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42 minorities, some 22 or 52% had now failed to pass.
10. In short the conclusions of these surveys can
be stated as follows: .
- The most significant data (Boalt and UCLA)
shows that the Bar Examination is more than
twice as great an obstacle for minority
students as it is for Anglo students. A
36.8% first time passage rate vs. an 83.3%
first time passage rate.
- Performance on second attempts is similarly
disproportionate with 23.8% of the minority
second timers at Boalt/UCLA passing while
85.4% of the Anglo second timers passed.
- The overall impact for two exam performance
* on the Boalt/UCLA graduates showed that
failure on the bar was almost 11 times more
likely for minority graduates than Anglos..
52% not having passed as compared to 4.9%
for Anglos.
11. The most dramatic instance of relative perfor
mance, was Boalt Ilall, U.C. Berkeley. There the' performance on the
August 1971 and February 1972 Bars showed Anglo graduates perform
ing at a 91% first time pass rate while the comparable rate for
minority graduates was 44%. The cumulative second time rate was
96.5% for Anglos and 50% for minorities.
.. ______ ________ROBERT L . GNAIV,iJAESQ . , Affiant
Subscribed and
this •■Lb day
sworn to
of June,
before me
1972 .
■€' ̂ *..£».cts-£a lx/.f *.£y. f.‘.<i OU K'IAL m.Al.
4 ft'. - ! • A \ COfE’tB o. b't-iuo,1:;. .}•') f<0'i/.f!V t'!.'sX!C • CAi.'.A : a VV V t.-U-i t ilAK’CiSCC CCU, :i\ * ■ 'Ay Cc.niA!6r»if>n (*):pBr*s M.ty ?■ '<
, / C '̂
A,. I • .— - 7/ -s.
v s/ v-- a - c <33 N*irr! if., J ;:» franciico. CA C '«C?
N o t. a r y Publ.i.c
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o r
AFFIDAVIT IN SUPPORT OF PETITIONERS
TATE CF CAN I 1’ORNIA. ' )
OUNTY OF E,V
) ss.
0 FRANCISCO ) • •
I i EDWARD OPTON, JR., Ph.D., being first duly sworn do
ereby depo: i> and say:
1. I am Associate Dean and Senior Research Psychologis-
the Wright Institute in Berkeley. The Wright Institute is an
ndependen t. Privately funded institute for graduate education and
•esearch in clinical-social psychology.
2 .
>uke Univer;.
I hold a Ph.D. degree in clinical psychology from
\i.ty and an A.B. degree from Yale University. In the
:our se of my training as a psychologist I have studied, administe
md interpit' led psychological tests of ability and personality; a
■esearch psv■ 'h'ologist at the University of California, Berkeley,
lave devised , administered, and interpreted standard and experime
isychologif'a i tests. As a teacher of psychology I have written a
used examlii.ilions; as a scholar I have published in the professio
lournals a:ri ioIgs on my use of standard and experimental tests.
)ublication.u and further qualifications are listed in Attachment
I have examined copies of the California Bar Exam a
id minister od in August 1969, /unjust 1970 and August 1971.
The tests 1 have examined contain no evidence of th
empirical v.-i1 i.dity or lack of validity. The tests by themselves
iot warrant aav ore sumption of validity. Since a great c|eal o >.
PETITIONER ' S EXE IT’IT 1
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empirical evidence exists on the lack of predictive validity of ir.anv
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ability tests, a presumption of validity would be a mere speculation
and would be inconsistent with the weight of evidence on ability
Vtests in general. I know of no effort that has been made to deter-j
mine the empirical validity, if any, of this test.
5. The examination may have "face validity" (common
Isense validity, a common sense relationship between the content of
the test items and the knowledge necessary to be a competent lawyer)
but face validity alone is very commonly found in totally invalid iitests and is specifically proscribed by the EEOC and OFCC guidelines.
*
Based on my general professional experience, understanding of the
field, and my examination of the tests, I find no reason to assume
\ ! that the bar examination is job related. Based on my knowledge of
Iwritten ability tests in general, I find strong reason to oresume
i
any test invalid until emprically demonstrated to be valid. This
presumption is based on the very large number of ability tests which i■ lhave been empirically demonstrated to be invalid, as contrasted with;
. !the relative.lv small number which have been demonstrated to be valic
in particular applications.
6. On the other hand, when the proportion of Black
Spanish-surnarae persons who pass the Bar Examination is substantia]
different from the proportion of Whites who pass, the racial discrir-
i
i nation inherent in the effect, of the test is undeniable.
1/Gh i. s c ] 1 i , Edw i n , The Valid ity of Occupational An tit v d e
Tests, I Jew Yor!:, Wiley 1966.
_2/ • • I. [EEOC] Federal Reporter Title 29, Chap. XIV, Part. 1607
$1 607. 8 and [OECC] Federal Register, Title 41, Chao’. LX, Part 60-3
$603.8.
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7. Cronboch, the dean of test experts in this country,
has written on the question of validity saying:
.
There is an understandable tendency for
the clinical tester to become oyer-
enthusiastic about the procedures in
which he is expert, and to rake his
recommendations too confidently. . The
judge must be ready to ask pointed
questions. 3/
The test under consideration, like others which open and foreclose . .
the careers of Americans, deserves the scrutiny of "pointed
questions."
8. I have inquired as to the existence of- a test manual
for this examination or any other information validating the test
against job performance. In so far as I know, no such information
exists. At least two of the vital prerequisites for the development
of such information - a clear definition of the purpose of the test
and a comprehensive "job analysis" of the job of a lawyer - have als
not been developed. Moreover, in the absence of information on
validity, the demonstrated effect of the test in allowing a smaller
percentage of Blacks than Whites to pass can only be interpreted as
unnecessary racial bias in the functioning of 'the test, any presumed
purpose notwithstanding. These conclusions are explained in greater
detail in the remainder of this affidavit.
9. In the absence of evidence of validity and of any
clearly defined purpose for which validity could be assessed, the
various kinds of capabilities that lead to high scores can only be
Cronbach, Lee J. , Essen tl als of Psychological Testing,
Third bait Ion. How York : Harper L. How, 1970 . luge 116.
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"acility. Seine basic knowledge of legal principles is likely re-
juirecl, though at what level is unknown. Simple familiarity with
Legal terms with little depth of comprehension may count for as muchj!
is a sound knowledge of principles. Verbal glibness alone is often
\ factor in tests of a similar nature. Style of discourse, regard-
ILess of substance, probably plays a part in the test. Personality
messed at. Almost: certainly, a major component is general verbal
attributes, such as self-confidence, anxiety, impulsiveness, cautious
less, reflectiveness, an analytical versus a synthesizing, approach t:
ideas and concepts, and others may well influence scores m an un-- i* t # fmown direction. In short, a wide variety of personal characteristic
inclinations, and capabilities probably contribute to high test ii
scores. Some may be associated with quality of legal performance ev
t:o an unknown degree and possibly in a negative direction, while
others may well have no relation whatever to performance. i
10.. Moreover, the relative weight each component contri
butes to the total score is unknown; so the present balance may have
no relation to the realities of the legal profession. A relatively i
trivial combination of elements, such as verbal style and a supei- !
ficial acquaintance with legal terms and practice may contribute
heavily to high scores while more important considerations, such as
a comprehensive understanding of complex issues in'principles of
jurisprudence may contribute negligibly if at all.
1 1 . The important point, is that no one knows with any
confidence whatsoever what elements do contribute to high scores on
the test. Appearances of relevance, that is,' appearances of the
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x>wer to discriminate capable from incapable performers with resoect
-O whatever a test is intended to measure, are notoriously untrust
worthy.- Accepted testing practice recognises this fact in requirin'.:
evidence of the test validity rather than the appearance of validitv
before permitting the use of a test in any selection process. That
experienced lawyers wrote the questions and read the responses care
fully and conscientiously is almost certainly a completely inadequatc-
aasi.s for accepting the usefulness of test scores.
12. In contrast to the complete absence of evidence about
••he capabilities measured by the test evidence seems abundant that *
-t acts to reject grossly disproportionate numbers of Blacks and
2o.icanos from the practice of law. This fact, coupled with the
ibsenco of evidence of validity, makes the test clearly and neces
sarily racially discriminatory.
13. The likelihood that an unvalidated test such as the
• iSar Examination operates somewhat capriciously in determining who
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ji3 passed by the applies to those rejected by the test.
'bany examinee's who a|§M^perbly Qualified with respect to whatever
ir ' : •. V. *
-the test is i ntendc^te' measure may be failed because of the unknown
influence of trivia^ ^pirrelevant considerations in the test.
14. In te&ifiig for admission to the practice of a profes-)
bion as complex as tBI.gS.aw, consideration must be given to those
complexities. SureSprli* wide variety..6 f capabilities, skills,
--smsk.. .y--, ;•,>* \
understandings, and.jp̂j3£Sonal predrlecl^ions are found in various
aspects of leaal oraMille. To limit admission to that richly varied
I |s e|§; yz- i
bet of activities tHMHph the action df an untested, highly limited
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;to stultify that profession.xaminaticn probably
15. The Bi
aspects of both ver'fel^Ability (one component of general intelligence
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lamination probably ranks examinees on liratec» ' j
and substantive knoi
proportional c.ontri!
LScores on the examxi
whether either verbal
jpbility and compete!
o talc the test.
|je of the lav7. : In the absence of data, the
^pn of knowledge; and of verbal facility to
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of the lav.7 arc unnet
are necessary, and, i )i
of intelligence, vecj
the cenoral pooulat
n cannot be known. It also cannot be known
cility or knowledge of the lav; are related t
s a lawyer within_the group of people cl ire
is not to sayithat verbal ability and knowle
j -i >yy 2? i
ry for the practice of law; undoubtedly both
mentioned above, within the very broad range
f Ve ' iability, and knowledge of the law found a_n
■a test such as the Bar Examination mignt vci-
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\ Idiscriminate the better able from the less able. However, relation
ships that would obtain within the broad range of abilities found in
the general population are almost certainly attenuated in a select
group such as graduates of accredited law schools. The relationships
imay well disappear entirely in this select group. The validity of
any examination declines when the rango of abilities of examinees is
restricted. Students from the accredited lav; schools are not chosen
randomly from the general population, but are selected from the\ j"cream" of those applying to lav; school, on the basis of academic
grades, tests .(not dissimilar to the Bar Examination), and other
demonstrations of outstanding achievement all of which produce la.. :
school student bodies whose intelligence and verbal abilities are
high. Although the ability of law school students is not uniform,
1the range and dispersion of abilities is quite restricted compared
to the general public.
16. The whole process of law school education and the
weeding out of incompetent students further restricts the range of
ability and the range of differences in the' knowledge of the law
among those who complete and graduate from the accredited lav; schools
17. Within this highly select group there can be no logi
cal presumption that greater verbal facility and/or knowledge of the
law would be related to competence and/or success as a lawyer. hh:::
the range of abilities in one area is restricted by the winnowing
processes of selection and education, differences in other important
areas (such as personality, drive, honesty, empathy, persistence,
executive ability, emotional stability, etc.) become of greater
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relative importance.
18.. For example, in another profession, psychology, the
successful practice of- which also requires high levels of verbal
proficiency and knowledge of subject matter, -a recent study found
essentially zero relationship between research productivity of
graduates and scores on the Graduate Record Examination, a test
which, on its face, has much the same,relationship to psychology
4/that the Bar Examination has to the practice of law.
19. Marston's report was not the first time researchers
have found tests of verbal proficiency, intelligence, and knowledge
*
of a profession unrelated to competence in the practice of the pro
fession within a group of graduates of a professional school. It is
reasonable to expect a parallel lack of validity of the Bar Examina
tion as applied to the highly selected graduates of lav; schools.
Such is already the conclusion of one distinguished testing
psychologist, Dr. Lawrence Plotkin, who has testified extensively
in employment discrimination litigation. Rios v. Steamfitters Local
638, 326 F.Supp. 198. Dr. Plotkin recently concluded in an article:
2. The Legal profession, it seems to me,
must reconsider its bar examination which
varies widely from state to state.
Graduates of accredited lav; schools who
are denied the right to practice their
profession solely on the basis of an
examination, which to my knowledge lacks
demonstrated validity, can challenge the
decision in the courts. 5/
4/
Pars ton, Albert R. "It is time to reconsider the
Graduate Record Examination." American Psychologist, 1971, 26, Eo.7
(July), 6 53-6 55. . ™ “
-/ i.Plotkin, Lawrence. "Coal Handling, StcarnfittB.ng,
Psychology, and Law" Amor Lean Psychologist, 1972, (March) p. 202-204
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20. In short, the Bar Examination, in the absence of
validating research, makes little sense as the sole licensing test
of competence as an attorney. It purports to test abilities 'which
lav? school graduates must have already demonstrated in high degree
under far more appropriate circumstances: the competition for
admission to lav; school; the daily confrontation and evaluation
by faculty; and the dozens of subject examinations which are neces-
1aary for graduation. Yet it fails to test a wide variety of other
'abilities probably needed by attorneys, such as motivation, emotional
stability, ability to work under real (as opposed to 1imited--time-
ex ami nation) pressure, personal, integrity, and other qualities that,'
I
as a layman, 1 would presume to be important to lawyering.
>
21 . It'might be helpful to describe what would be require:
for a written test to be job validated. Three kinds of validity
are relevant to job selection and each is determined by a different
set of procedures.
a) The tester selects a group of applicants for a
position at random from a pool of applicants and. administers a test
to them but admits them all to the position without regard to their
Lest results. The performance on the job of the members of this
)b served and evaluated at one or more later dates after
some reasonable time for proficiency to develop has passed, and wicn-
out. knowledge of the test results on the part of the evaluator.
performance is then compared with test performance to•determine
whether any relationship.exists and, if so, what the nature of thni
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relationship is. This procedure indicates the predictive validity
• Iof the test. None of this, insofar as I am aware, has even been
'aftemoted by the bar examiners.
• . |b) A second method of job validation, which is not •
.
as defensible as the method outlined above since it has more possi
I
bilities for showing erroneous results, .is- to administer a test to
attorneys already on the job and compare test performance with pre
viously observed job performance. The primary deficiency in this
procedure, which leads to concurrent validity, is that the relation
ship betv/een test and job performance among experienced attorneys I!probably differs in unknown ways from that relationship among people
without practical experience.
c) The most questionable method, but one still used \
and accepted for limited purposes, is to undertake a careful and
detailed job analysis of the actual duties and qualifications of an 1
attorney and then to select tests known or presumed to measure each j
of these specific job requirements if they are available. For
example, one might analyze the actual types- of reading and study
required of an attorney in order to determine the minimum reading .
• •' !and substantive knowledges ability necessary. Testa would then be i
selected based on those pre-determined levels. This kind of i
procedure indicates content validity. So far as I.know, none of
this lias been done in the preparation of the California Bar
1
Examination.
!22. In other words, based on the information which has
iboon submitted to me, which includes- the actual exams, background
information conveyed by counsel, the racial statistics concerning
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>er f ormnnce on the bar exam and my' own observations 'of working
ittorneys, and based on my experience in the field of testing, no
professionally. accepted method of job analysis or test validation e:
my kind seems to have been even attempted by■the defendants in
vindication of a discriminatory examination.
23. At a minimum the Bar Examiners might have attempted
:o acquire a professional determination of the qualities that are
lecessary for successful attorneys. While such a determination
concern ing professionals does not appear to be a simple job, it is
possible. One exnmole with which I am familiar is the work of Prof
Calvin Taylor, of the University of Utah, establishing the relevani
_6/for a successful medical practitioner.
24. Also, the examiners do not seem to have completed an
Dven more fundamental step ~ determining the purpose of the bar
jxam. Is it to insure that the citizenry have the best practitioner
available? Is it to guarantee that all attorneys are minimally
competent? Is it to insure the quality of law schools? Each of
:hese plausible purposes, and others, would require different test
ing processes, or at least different passing scores. But what pur
pose is intended is unknown. The only solid evidence of the impact
3f the test indicates that its only effect is to limit the numbers
3f racial minority members permitted to practice law.
6/Taylor, Calvin W. , et. al. , "An Investigation into t'.x
Criterion Problem for a Group of Medical General Practitioners."
Tournnl of Anv3.li.cd Ps'-chology, 1965 , ( 4 9 (6) pp. 399-406).
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25. An acceptable validity study v;ould determine the
:ela lion.ship ot each part of a test to some appropriate part of
job performance. Pone of the parts or the total test here- can be
considered related to any aspect of an attorney's performance with
out correlative data. The importance of each aspect of performance
nust be established by expert authority, and the probable performanc
af an applicant on each aspect of performance must then be estimated
using whatever appropriate tests are available or can be devised.
Poor performance in some areas may be compensated for by good per
formanee in other areas. If any area of ability is critical to oUv,
cessful performance as an attorney and if it is omitted in testing,
then, absent any other information that examination can not be ogi— ..
a satisfactory predictor of competence. Similarly, some as
pects of performance are no doubt essential, and a hign probability
that an applicant will fail to meet some minimal level in that area
should lead to his rejection no matter how high he may score on
some other part of a selection test. Unfortunately in the absence
of correlative data, the presumption that any one skill is more
crucial than any other to the practice of law' is pure speculation.
2 6 . Even if an exam is found to be valid as a whole, i.e.
over its whole range,
properly for the test
relation between test
///
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///
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in general, like this:look:
wua
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(k
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cm
cn
o'a
,Perfbrmance on such a test is related to performance on the job
within the range of scores from A to B. If the passing score is se
higher than B, then some examinees who fail will bp just as compete-
as those'who pass. If all or essentially all the examinees score
higher than B r then the test scores will have little or no relation
ship to job performance, no matter'how valid the test might have
been if it had been given to a less competent group of examinees,
i.e. , a group many of whose members scores less than B. There is
every reason to expect that the situation with respect to the
Graduate Record Examination (as a predictor of success among
psycholoqists in the study reported by Hurston), and the situation
with respect to the Bar Examination (as a predictor of competency i
performance as an attorney) is like that where essentially all
aoolicants score above B. However, there is no way to know where
point B, the highest valid cut-off or passing score, might be for
the Bar Examination in the absence of empirical data.
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28. In nummary, (1) I know of no evidence'that the test
in question is suitable for the selection of attorneys; (2) inform:.-
tion is available clearly showing that the test discriminates against
racial and ethnic minorities; (3) a strong presumption exists, based
on relevant professional training, experience, and the history of
selection tests in general, that the test I examined is unlikely to
be associated to any practical extent with performance as an attorney
among groups of examinees consisting of graduates of already ac-
icredited law schools. In view of these 'three points, employment i
decisions based on scores on the test are unequivocally racially
.biased without redeeming value.
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OU
n 0 n9 .
EDWARD OP TON, JR. , Pli.D., Affiant
lubscribed and sworn to before me
this 8_ day of June 1972.
, - v . /w 's -v * *'
w .iiiAt,:; I
rcov.". :, • . ;c - cv.va a a :i
>• v ■ • /'I COtViV.' a
.My C f i i . p ' i i ' £ r v*.iroi J.-v.y ?„ U)7:J j>•; • * v. - » : • •./ V - •• • 1 C-'C- - j
<•' .p - -J- • :nvcm a:.::-V- <•.. ..
__j _ i___/ / • • / - ■, •
Notary Public / ->ct.
14
\
I'dnca 1 :i on !.
B. A. 19!) 7 Vale" Uj'j :i ver s i l.y •
Ph . D . 1964 Duke University . . •
Doctoral Dissertation : Electrocneephalograph.ic- correl ates of
performance lapses in young and old men.
Professionn1 Employment .
Clinical '•
Clinical Psychology Trainee, Oteen V.A. Hospital, summer 1958
Duke University Medical Center 1958--59
Dorothy Dix Hospital and Mental Health
, Center of Raleigh and Wake County,
H.C., summer 1959
Durham V.A. Hospital, 1960-G1
Clinical Psychology Intern, Duke University Medical Center, 1959-GO
Academic and Research'*
Graduate /Assistant, Department of Psychology, Duke University, 1958
Pre-doctoral Fellow, National Institute of Mental Health (at Duke
University), 195.8-59 , 1959-1960.
Visiting Instructor in Psychology, North Carolina College, Pali.
Semester, 1962-1963.
• vi/r a
•Visiting Consultant in Psychology, North Carolina College, Spring
Semester, 19 63. ..
Research Assistant, Department of Psychiatry, Duke. University Medic
Center, 1962-1963. . . .
Lecturer in Psychology, San Francisco State College, Spring 1965.
Assistant Research Psychologist, University of California, Berkeley
1963-1966.
Associate Research Psychologist,
1966-1969.
University of California, Berkeley
ATTACHMENT 11
Lecturer , Univorsi ty of c.. iwif ornia , Berkeley, 196G-19u9. f
Consultant, Son: St Ho 5' p i t a 1, 1968
< Senior Res ear eh P
Associate Doan of
ycholog:i.st, The Wright Institute, 1969.
the Graduate School, The Wright institute, 1970.
Pro£ csaio n a1 Assoc i ati ons
American Psychological Association
Sigma Xi
Society for Psychophysiological Research (and Consulting Editor,
Psychophys i o1og y) /
Society for the Psychological Study of Social Issues
Publications
Books
La zarus., R. S., and Opton, E. M. , Jr. (Eds.) Personality. London
and Baltimore: Penguin Books, 1967.
Chapter’s in Bocks
Opton, E.M., Jr. LesSons of My Lai. In [proceedings of the
Congressional Conference on War and National Responsibility],
in press, to be published July, 1970, by Holt, Rinehart & Winston.
Opton, E.M., Jr. It never happened, and besides, they deserved it.
In C. Comstock and N. Sanford (Eds.), jProceeding•of the Wright
Institute Conference on The Legitimation of Evil], to be published.
Averill, J., and Opton, E.M., Jr. Psychophysiological assessment:
Rationale and problems. In P, McReynolds (Ed-.),' Advances in
psychological assessment. Palo Alto: Science and Behavior Books,
1968. ...
Lazarus, R.S., and Opton, E.M., Jr. The study of psychological
stress: A summary of theoretical formulations and experimental
findings. In C. D. Spielberger (Ed.), Anxiety and behavior. New
York: Academic Press, 1966.
Lazarus, R.S., Opton, E.M., Jr., and Averill, J. Emotions and
adaptation: Conceptual and empirical relations. In M, R. Jones
(Ed.), He! >r a s k a s v i n n o s i u m on mo 11 v a 11 o n , 1968, in press.
OArt ic les_in Jo urn al s
Opton, E. M. , Jr., Rankin, N. 0. ,: and Lazarus, R S . A simplified
method of heart rate measurruent. Psychophysiology, 1.965, 5, . 87-97.
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Opton f E . M . / Jr. and La xaru s’ /
c*i_> • Person a 1psychowhy .1 o 1 og i a 1 resUOliSC> to sL x e s s : A theand an exr»q rjwont . Journ.ii of Pc r son a1 i t.y —
j
1967 / 6 , 2 9 '>—3 03.
Opton t E . M . I J r . Psyohologi ca .1 st res s and cop-the practi.cc of dent i. s. v.j'y Int orn a t. i oF) CJ. .1. Den t.1969 • A1so in The BI 'l .! J eti n .of the New J e r S O V !for Chi Id ire* n ; 1 9 68 . J 6 , No . V
/ PP 4-9 (Pa rt I)(Part II) •
Opt on, E . M. , Jr. and Due); lor., R. Mental gymnastics on My Lai .
The Now Republic, 1970, 162, No. 8 (February 21), 14-16.
Opton, Ji. M., Jr. and Sanford, N. Toward a critical social science
• Trans-action , 1970, 7, No. 5 (March), 4-7.
Averill,
studies
emotion
J., Opton, E. ii., Jr., and Lazarus, R. S. Cross-cultural
of psychophysio'logical responses during stress and
Internationa.]. Journal of Ps yc ho logy , 19 C 9 .
Folkins,^C. II., Lawson, Karen D.
K. S. 'Desensitization and the
Journal^-of Abnormal Psychology,
Opton, E. M., Jr., and Lazarus,
experimental reduction of threat.
1968, 73, 100-113.
Folkins, C, II.-, Lawson, Karen
R. S. A reply to Davison's
Psychology, 19 6 9, 7F , 88-89.
D., Opton,.E. M., Jr., and Lazarus,
critique. Journal of Abnormal
Lazarus, R. S., Opton, E. M., Jr., and Averill, J.
adaptation: Conceptual relations. (in Spanish)
anterlcana dc Pslcoiogia, 1969 , 1 , No. 1.
Emot_ions and
Revista Lat~Fn-
Lazarus, R. S. , Opt.on, E. M. , Jr. , Nomikos, M.S. , and Rankin, N.O.
The principle of short-circuiting of threat: Further evidence.Journal of Personality , 1965, 33
Lazarus, R. S., Tomita, M ., OptonA cross-•cultural study of stressJournal of Personality and Soc.i.a;
r 622-633.
, E. M., Jr., and Kodama, M.
reaction patterns in Japan.
I- Psychology, 1966 , 4 , 622-633.
Malmstrom, E. J., Opton, E.M., Jr., and Lazarus, R. S.
measurement and the correlation of indices of arousal.
somatic Medicine, 1965, 27, 546-556F '
Heart rate
Psycho-
Thompson, L. W. , Opton, E. M., Jr., and Cohen, L. C. -Effects, of
age and presentation speed on a vigilance task. Journal of
Gerontology,1968,18,366-369. ' 7
K'einst.ein , J . , Averi. 11, J. ,
Defensive style and discrcp
log i c a 1 i nd1c es o f str ess.
Psychol_ociy , 19 69 .
Opton, E. M., Jr., and Lazarus, R. S.
ancy between self•-'report and physi.o-
Jonrnal of Persc>na1itv and So c i a 1
%
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Papers Proven I eel at Meetings-
Upton, 3:. M , Jr. Diffc-.ronees between. successive reports of droai.is
, f’rcr.o:Led at annual meeting of the Society for the Psychophys j o’lo- gica.l Study of Sleep, Chicago, March, 1961.
•Op ton, E. K. , Jr., Lazarus, It. S., Tomita, 13., and Kedama, m . /•
cross-cultural study of stress reaction patterns in Japan. Pre
sented at annual meeting of the Western Psychological Association Honolulu, June, 1965.
Opton, E. M., Jr. and Lazarus, R. S. 'Psychological stress and the
coping process in the practice of dentistry. Presented at annual
meeting of the Academy of Psychosomatic Medicine, Dallas, Texas,■ November 15, 19 66..
Opton, E. M., Jr. Are psychophysiologicad measures of stress respo:
valid? Some cross-cultural evidence. '' Presented at symposium on
stress, annual meeting of the California State Psychological
Association, San Itrancisco, January, 1966.
Opton, E. M., Jr. Why do people like stress? Presented at annual
meeting, of the Western Psychological Association, Vancouver, B.C.,
June, 1969. This paper also presented at the Napa State Hospital
Colloquium, December 19, 1969.
Opton, E. M., Jr. Hunger causes mental retardation. Presented to
the California Legislature (Assembly) Committee on Health and
Welfare, Los Angeles ,\ October 31, 1969.
Opton, E. M ., Jr. Hoping to end the war. Presented at the Con
gressional Conference on War and National Responsibility, House of
Representatives, Washington, D.C., February 20-21, 1970.
Opton, E. M., Jr. . It never happened, and besides, they deserved it.
Presented at the Wright Institute Conference on The Legitimation
of Evil, San Francisco, February 21-22, 1970.
I o Dei ns, C. ]]., Lav; son, Karen D. , Opton, E. Mi., J'r. and Lazarus, R.S
Desensitization and the experimental reduction of threat. Presente
at annual meeting of the Western Psychological /association, San
Francisco, May 5, 1967.
Lazarus, R. S. , Averill, J. , and Opton, E. M. , J'r. Emotion and
cognition. Presented at the Reymert Symposium on Feelings and
Emotion, Loyola University, Chicago, Illinois, October 11-13, 1968.
Lazarus, R. S., Opton, E. M,, Jr., and Averill, Jr. The management
stressful experience. Presen Led at Foundations Fund for Research
in Psychiatry Conference on /adaptation to Chance. Puerto lUm.June 22-27, 196 8. c •
La znrus ,, R.
t.'i cn in the
annual meeting of the-.Western Psychological Association, Honolulu, June, 1965. •
>
11 lo-apnc n / L. V7. , Optci/ /. . . r , , Jr. , a n o C o h e n , Ij. D. E f f e c t s o f ciyo
tine! p•1“ C 5* Cn t aLie>n sp
ir.eoting o j_ 11.i 1 C Gere
Weinst CC i l , J ., 1>azarof dog roe of .ic;ent.i
Prosen L c d a t Cl J >l.o’.ujI
Jlonolu 1 u , Jvi'n r't • * / J 96
Lazaru3, R. S• f ■7iVcr
.on
1, J. R . , and Opton, E. M., Jr. The assefismen
of‘Coping. Paper presented at N.I.M.U. Conference on Adaptation and
Copi jig, Palo Alto, California, March 20-22,' 1969.
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AFFIDAVIT IN SUPPORT
OF PETITIONERS
STATE OF CALIFORNIA ) •
) s s . :
COUNTY OF SAN FRANCISCO )
I, MICHAEL S. WALD, being first duly sworn, depose
and say: '
1. My name is MICHAEL S. WALD, I am an Associate
Professor of Law at Stanford Law School, having been a member of
the faculty since 1967. I have also been a Deputy District Atiorne".
■aPublic Defender and worked for the Youth Law Center in San Francisco
and the Center for Law and Social Policy in Washington, D.C., doing
civil•litigation.\ I am a member of the California and District j
of Columbia bars.
2. While teaching at Stanford I have been a member
Jof a faculty committee on admission of minority-students. Because
iof this work, and my own interests in minority problems, I have
Ibeen particularly concerned with the problem of devising adequate 'l
selection procedures to insure that persons from minority groups
are not unfairly excluded from law schools or legal practice.
3. It is my belief that the California Bar Examinatic:
like many lav/ school exams, discriminates against many minority
students, i.c., many minority students do poorly on it for reasons
that are unrelated to their knowledge of, or ability to practice
law. As a result, they may be excluded from the practice of lav;
despite being well qualified to practice.
PETIT! OH MR ' S E'UIl BJ T 3 4
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. 4 . The discriminatory nature of the exam stems from
the fact that the current exam primarily tests a very narrow rar.ro
of skills that are related to being a good lawyer. Unfortunately,
these particular areas are ones where many minority students, becaus:
of inadequate high school and college preparation (and perhaps also
for cultural reasons) tend to be most deficient.
5. Moreover, the exam fails to test for a number of other
lawyer related skills, skills which minority students more fre
quently display. As a result, minority (and other) students with
skills that are equally, if not more important, to being a good lav -
■sare excluded from practice by the current test procedures.
qt Specifically, it is my opinion that the Bar Examinatic:
mostly tests the ability to organize and write abb’ut relatively
theoretical legal questions in a very short period of time. The
exam places a premium on reading ability and test-taking skills.
. . . ‘ ]
In these respects, it is very similar to most law school exams.
7 . Thus, the examination discriminates against those v:hc
do not have extensive training in organizing and writing under area-
time pressure. Yet, it is my experience that many persons who
do poorly on such exams could do considerably better with more tier.',
the usual situation for a lawyer.
8. While this test discriminates against anybody who decs
not organize and write quickly and well, I believe’ the test part
icularly discriminates against minority students, since they most
often have been denied the high school and college training that
emphasizes these particular skills.
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9. Many minority students, as well as some non-minority
lav; students, come from high schools, and colleges, where such
training is absent. Testing is mainly objective, little time is
spent developing writing skills. Often these-students were deprived
af going to "better" schools because of segregation practices,
lousing discrimination, and/or underfinancing of schools in poor
ireas. The historic lack of equal educational opportunities is
'/ell known. The impact is evident to me in the performance of the
students who have such a background. I have found that traditional
nssay testing never reflects their intelligence of their ability tc
become good lawyers.
1-0. Moreover, the examination fails to test many of the
Lawyer skills that minority students often possess despite doing\
poorly on la',: school examination, such as the ability to be a good
negotiator, trial lawyer, counselor, or draftsman. In my experience
ehese skills are far more frequently required of-most lawyers than
;hose tested by the Bar Examination.
11. The limitations of such testing procedures were
nlearly brought home to me by several experiences as a teacher at
Stanford. Although Stanford Law School has only had a small number
nf minority students, my experience with those students has proven
:o me that the type of testing given greatly affects their perform
ance . One of the most clcarcut examples of this occurred in 1968,
:hen Professor John Kaplan and I jointly taught Criminal Lav; to the
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entire first year class. There were approximately 10 minority
students in the class. Because Professor Kaplan and I emphasized
. . . !different aspects of the course, we ‘decided to individually make ur; '
!one half of the final examination each. Professor Kaplan chose to I
give the students 40 multiple choice questions, very difficult
'questions which tested the student's actual knowledge of the sub
stantive material we presented. My half of the exam, on the other
hand, was a broad philosophical essay requiring organizing and
• . , , <writing about general principles under time pressure.
12. After the exams were graded, we decided to test the*
9
correlation between the performance of each student on the two
halves of the exam. To our surprise, the performance on one part of;
the exam was uncorVolated with performance on the other, i.e., many
students who did well on Professor Kaplan's half did poorly on my
half and vice-versa. Thus the two types of questions on this exam- !
ination apparently tested different Skills and many students,
apparently, did not possess both skills.
13. Moreover, a careful analysis of the test scores indi
cated that the minority students tended to do relatively well on
Professor Kaplan's half -most were above the class average - while
jthey did very poorly on my half. Significantly, my half, like the
bulk of the Bar Examination, was less a test of substantive know-
iledge than it was a test of the ability to organize and write an
essay dealing with that knowledge under exam pressures. j
14. While this is only one "test" the results were con
sistent: with my general impressions about problems with testing. I J
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have often had students in snail classes whose day to day classrocr.
2 i performance- totally demonstrated their comorehension of the course
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Oil° jj material and their ability to function as good lawyers, vet a
|! '4 j number of these students always do poorly on ray examinations, I ar
convinced that the; course performance, not the examination grade,
is the better indicator of their ability. Similarly, I have had
students do very poorly on time pressure exams but considerably
better on take home exams or papers.
15. For all these reasons, it is my opinion, as a law
teacher and practicing lawyer, that the Bar Examination is discrin-■o
inatory and an inadequate test for admission to the Bar, and that
many potential lawyers with the ability to be good lawyers, but
lacking the skills tested by the Bar are unfairly denied admission
to practice.
Dated:
..9- • voeftsu.
MICHAEL S. WALD, Affiant
Subscribed and sworn to before
me this /FJ day of June, 1972.
i ' ANOTARY public 7"' 3 / 0
;:-;a O - ?-;c !/>L .' t/> L i, err::--, o.i" -a >
*.'■ < v . :k - c.vj.c.wu ivL .1.! fKUvGTCO COUU.Y . ,’y
y V I Jy t f W . i 2. I.XU );
4~- •• » V - • f— • * » • ‘ ■' *, '<V-i« V:. u v.u tv. .1 or t/.j
S T A T E Of; W ISCONSIN )
) ss 'COUNTY OF DANE )
Nathan Stewart Heffc.rnan, being f irs t duty sworn on oath, deposes
and. says that he is a Justice o f the W isconsin Suprem e Court and that he
has been a m ember o f that Court since 1934; that he has been licensed as
a .law yer in the State o f W isconsin since 1948; that prior.to his appointment
and election to the W isconsin Suprem e Court he was at various tim es a
practicing lawyer-, the deputy attorney general o f the State o f W isconsin,
and United States A ttorney for the W estern D is tr ic t o f W isconsin; tiiat he
has been and is a lectu rer in law at the U n iversity o f W isconsin Law School
and a m em ber o f the Board o f V is ito rs o f said Law School; that as a Justice
o f the Wisconsin Supreme Court he is concerned on a daily basis with
•applications for- admission to practice in this state; that the Suprem e
Court has general superintending jurisd iction o ve r the integrated bar o f the
\
State o f W isconsin and has plenary control o ve r all adm issions to practice,
that the Supreme Court exerc ises its control o ve r adm issions to the bar
by the appointment o f, and consultation with, the W isconsin Board o f State
Bar Exam iners find, in addition, supervises the adm issions to the bar on
diploma p riv ilege o f all graduates o f the two W isconsin law schools— the
U niversity o f W isconsin Law School and the M arquette U n iversity Law
School; that in its supervision o f the diploma p r iv ilege students rece iv ing
a J .D. degree are admitted on motion o f the dean upon a showing of good
character and professional expertise providing the graduate has taken basic
specified subjects required by the rules o f the Suprem e Court; that these
requ ired courses are those which the bar examination covers ; that in the
supervision o f course requirem ents fo r the diploma p riv ilege the curriculum
o f the two schools is reviewed on a regu lar basis to assure that the fu lfilled
PUT IT I ONER' S KXilTHl
educational requirem ents satis fy the same c r ite r ia requ ired in bar exam ina
tions for graduates o f other law sc too ls ; that said diploma p riv ilege has
been applicable to die U n iversity o f W isconsin Law School for o ve r 50 years
and to M arquette U n iversity Law School graduates for alm ost 40 years ;
that your affiant in the course o f his experience as a practicing law yer in
both State and Federa l courts and as a Justice o f th e 'S ta te 's highest court
has had the opportunity to encounter and evaluate attorneys who have been
admitted on the diploma p riv ilege and those who have been admitted to
practice follow ing bar examinations in this o r in other' states; that he is
satisfied that the absence o f a bar examination in no way dim inishes the
quality o f law practice in the State o f W isconsin; that he is also o f the opinion
based upon his knowledge gained as a law teacher and from review ing the
operations o f the U n iversity o f W isconsin Law School as a m em ber o f its
Board o f V is ito rs that the grading and review System o ffered by three yea rs
o f examination in the course o f the law curriculum is m ore lik e ly to p roperly
determ ine W-eLqsiaL-f+oal-ion-ef a graduate's aptitude and knowledge necessary
fo r the practice o f law than is a single, bar examination adm inistered and
graded in a n ecessarily a rb itra ry way; that while he is satis fied that the
bar examination procedures are adm inistered with fa irn ess , he is in form ed
that in the opinion o f those who adm inister the examinations that there are
few er m iscarriages in the admission o f applicants by the use o f the diploma
p riv ilege than by the application o f the bar examination technique; and that
the quality o f graduating students admitted on diploma p riv ilege is at least
equal to that o f tliose admitted on bar examination.
) C’ CT
County of Dane )
V?. Wade Boardman, bding first duly sworn, on oath says that
he is a lawyer duly licensed to practice his profession in the\
courts of the State of Wisconsin and has been, such continuously
since 1930; that he was appointed by the Supreme Court of the State
of: Wisconsin in June of 1S46 a member of the Board.of State Bar
Commissioners which as one of its two functions conducts the examin
ation of applicants for admission tq the Bar of Wisconsin; that
he has been reappointed from time to time and has been continuously
since his first appointment, and is now, a member of such Board
and has been its Chairman for approximately the past 20 years;
That prior to his being appointed to the Board of State
Bar Commissioners affiant had been a lecturer in Lav/ at the Universit
of Wisconsin Law School and had had 12 years experience in conducting
and grading lav/ school examinations in the course he conducted;
that affiant has always felt that he v/as better able to examine
and grade his students than he is able to examine and grade those
with whose specific course content and material he has not been
familiar; that it is affiant' s opinion that the complete lav/
school record of a student from a well qualified and accredited
law school is much more likely to be a better test, of the qualifica
tions for the practice of lav/ than is a single comprehensive bar
examination;
In Wisconsin all graduates of the two law schools within
the state, namely, the University of Wisconsin Law School and
Marquette University Law School, arc admitted to the Bar on diploma
privilege providing the individual has taken the percentage of
basic specified subjects required by the rules of the Supreme
Court, and which arc basically those which the Bar examination
covers; that graduates of all other law schools arc required to take
the Bar examination for admission to the Bar of Wisconsin. This
State of Wisconsin )
PETITIONED'S EXHIBIT 3'
diploma privilege has been applicable to the University of Wisconsin
Law School graduates for at least 50 years and to Marquette
University Law School graduates since 19 33 ;
as a prerequisite for admission to practice for graduates of in
state accredited law school in no way diminishes the quality of
the Bar of Wisconsin or of the practice of law in Wisconsin and
that the requirement of a bar examination for graduates of in-state
accredited law schools would in no way enhance the quality of
the Bar; affiant believes on the contrary that the only disadvantage\
to the diploma privilege as administered in Wisconsin is the
absence of the review required for a comprehensive bar examination;
that this disadvantage is more than offset by the freedom of the
in-state Wisconsin law schools to conduct their teaching without
reference to any comprehensive Wisconsin bar examination; that
additional benefits derived from the Wisconsin system are that the
Board of State Bar Commissioners has been able to move the admission
of the successful applicants the week following the completion of
the bar examination, that each member of the Board is able to grade
his own questions at one sitting, and to do so with the benefit
of a single continuing standard; that in affiant's opinion there
are fewer miscarriages in the examination, grading and admission
and nonadmission of Bar applicants as a result of such advantages;
individuals or groups making surveys on the matter of admissions
to the Bar and that this affidavit is made for whatever purpose it
may serve and for whatever it raa” '■'nr,'h
That affiant believes that the absence of a bar examination
That affiant's views have been expressed many times to
Subscribed and sworn to before
me this ) ^ dav of April, 1972.
Notary Public, Dane County, Wisconsin
My Commissi.on is Permanent
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STATE OF CALIFORNIA )
) s s . :
COUNTY OF SAN FRANCISCO )
AFFIDAVIT IN SUPPORT OF PETITIONERS
I, PEN SIIAFTON, being first duly sworn, depose and say:
1. I am Ben Shafton. I have completed two years of
law study at Boalt Hall School of Lav/, University of California
in Berkeley. \
2. My residence is 1407 Spruce Street, Berkeley, Calif-
ornl a .
3. During the period from February to June of 1972,
when I. was working as a law clerk to Sidney M. VJolinsky and
Robert L. Gnaizda,' I received the attached letter, which is
incorporated herein by reference from Spencer L. Kimball, Dean
of the University of Wisconsin Law School, dated March 28,. 1972.
4. The document attached hereto is a true and authen
ticated copy of the letter that I received from Spencer L. Kimball.
i
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iiliI
I
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BEN SIIAFTON,.’ Affiant
Subscribed and sworn to before
me this J ‘S day of June, 1972.
f i
Notary Public / J/
c '- i i . j >■ o. h.’.T-ractA r>
. \ .:c • C-V . :-’ri:A If, v . .v-:.ujco Ci '<! v (/
S.jJ M.. » n.Givi.. :o. C.*\ '»•'
PETITIONER 1 S FiniLBIT 17
I n L U IN I V t K b I I Y U I- W I b u U IN b. i fl
L A W S C H O O L
MA D ISON , WI SCON S IN 53706
OFFICE Of THL' OF AN
\
March 28, 1972
Mr. Ben C.. Shaften
Public Advocates, Inc.
A33 Turk Street
San Francisco, California 9*H02
Dear Mr. Shaften:
In reply to your inquiry, I am giving you my views abo,ut the process of admis
sion to the bar. As you know, for many decades, graduates of the University
of Wisconsin Law School have been admitted to the State Bar of Wisconsin,
without the necessity of taking the bar examination. For. a lesser but very
long time,__graduates of Marquette University Law School in Mi1waukee- have
had the same privilege. For many years, the faculty of this school imposed
upon its graduates, the requirement of several months' apprenticeship
(earlier six months, but more recently four months) in order to take advantage
of the diploma privilege accorded them through the school. At one time, the
awarding of the degree was held up until the apprenticeship had been served,
but more recently it has simply been required prior to certification to the
Wisconsin Bar. For a good number of years in the recent past, we have
permitted a general practice course taught students for ten weeks in the sum
mer to be a complete substitute for the apprenticeship requirement, and
even more recently we have permitted half that course to substitute for half
of the apprenticeship requirement in cases where students wish to combine the
two.
Effective for admission to the bar after June, 1971, the court imposed
specific course requirements upon graduates of the two schools who sought
admission on diploma. Partly because the court imposed the specific course
requirements it felt necessary for admission, partly because our students were
at a relatively disadvantage to those of Marquette which did not impose the
additional apprenticeship or general practice course requirement upon their
students, and partly because of a feeling that the. difficulties of administration
of the apprenticeship requirement had led us to accept a number of methods of
satisfying the requirement that did not bear a true relationship to its
purpose, we have abandoned the apprenticeship requirement and now certify for
admission on diploma our graduates who meet the court's course requirements. i
i have long had serious doubts whether the bar examination as administered
in most states constituted a significant, measure of the capacity for the
practice of law of students who had graduated from law schools of reasonably
high quality. I do not speak to the question of admission of graduates of
schools that arc marginal in character and where, I believe, the bar examin
ation serves a useful function, despite mqny deficiencies in-its administration
in many states of the country.
PETITIONER ' EX1I1T.TT 17
Mr. Ben C. Shoften -2- Morch 28, 1972
Partly on a priori grounds, and partly on the basis of my observation of
the bar in this and other states where I have taught, I do not believe that
the absence of a bar examination as a pre-requisite for admission to practice
for graduates of in-state accredited lav; schools lias in any way diminished
the quality of the bar or the practice of the low in the state of Wisconsin.
It is my judgment, for whatever it may be worth, that the quality of trie.
Wisconsin Bar compares favorably with that of other bars with which I have
any acquaintance/?. 1 believe that the introduction of the bar examination in
this state for graduates of in-state accredited law schools would be on
undesirable change in the bar admission practices of Wisconsin.
One of the undesirable results of the introduction of such an examination
has to do with the economics of legal education.. 'Unlike graduate students
generally, low students receive very little assistance from the law schools
in the acquisition of their education. Teaching and graduate assistantships
are few, scholarship funds are not large, and most students either graduate
with a very heavy burden of debt or must struggle to make their way through
law school by part-time employment. The additional time lag between graduation
and admission to the bar would place a very heavy additional financial
burden upon our graduates -- a burden that wou1d be most serious in the
case of students coming from low income backgrounds. I
I hope this letter provides you such helpful information as you wish from
me.
Yours sincerely,
Spencer L. Kimball
Dean
SLK:bj s
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, AFFIDAVIT
S T A T E O F C A L I F O R N I A
) s s .
C O U N T ' ) O F L O S A K C I D L E S ) lJI:
IViy n a m e i s P E R C Y D U R A N , I a m 28 y e a r s o f a g e and I g r a d u a t e d
.
f r o m the U n i v e r s i t y o f C a l i f o r n i a at L o s A n g e l e s , L a w S c h o o l in June o f 1971. ̂
1 took the C a l i f o r n i a B a r in A u g u s t o f 1971 and w a s s u b s e q u e n t l y n o t i - j
j
f ied o f h a v in g fa i l e d the e x a m in D e c e m b e r o f 1971, f o u r m o n th s l a t e r . I w a s jjN ' l
fo r tun a te en ough to h a v e b e e n a w a r d e d a R e g i n a l d H c b e r S m ith F e l l o w s h i p
|
w h ic h a l l o w e d m e the o p p o r tu n i t y to s u p p o r t m y s e l f d u r i n g th is i n t e r v a l and
to p r e p a r e f o r the F e b r u a r y B a r .
D u r i n g th is t im e I h ave b ee n e m p l o y e d b y the M e x i c a n - A m c r i c a n L e g a l 1
\ *
D e f e n s e . a n d E d u c a t i o n a l Fu n d , Inc. w h ic h i s the on ly L a w f i r m t o t a l l y d e d i
ca ted to the 14 m i l l i o n S p a n i sh o r i g i n p e r s o n s in the U n i t e d S t a t e s , i n c lu d in g
th r e e m i l l i o n M e x i c a n - A m e r i c a n s r e s id in g , in C a l i f o r n i a , a c c o r d i n g to the \
1970 c e n s u s .
T h e b a r e x a m h a s d e n ied m e the o p p o r tu n i t y to s e r v e th e s e p e o p l e
w h o a r c in d e s p e r a t e need o f l e g a l s e r v i c e s .
T h e b a r e x a m is one m o r e o b s t a c l e w h i c h a m i n o r i t y p e r s o n m u s t o v e r
c o m e in o r d e r to a c h i e v e p a r i t y in th is s o c i e t y . P r i o r to e n t e r i n g lav/ schoo l
Ii
I had to take the P r i n c e s t o n E n t r a n c e E x a m w h ic h h a s b e e n d e t e r m i n e d to be :
c u l t u r a l l y b i a s e d and w h ich i s no l o n g e r u s e d a s the o n ly q u a l i f y i n g f a c t o r to j
d e t e r m in e a m i n o r i t y ' s po tent ia l to s u c c e e d i n l a w s c h o o l . O n c e I w a s a l l o w e d
PETITIOMRJU S r x r i p t ir n*» 1 O
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//
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into l a w s c h o o l 1 c o m p le t e d the c o u r s e . o f s tu d ie s s u c c e s s f u l l y and w a s a w a r e -
' >
ed a J u r i s D o c t o r a t e f r o m the U n i v e r s i t y o f C a l i f o r n i a L a w S c h o o l in Juno
1971. But once a g a in , u p o n %c o m p le t i n g m y c o u r s e o f s tu d y I m e t an o b s t a c l e ,
j
the C a l i f o r n i a B a r E x a m , w h ic h I f e e l h a s no r e l e v a n c e in m e a s u r i n g m y
!
a b i l i t y to funct ion a s an a t t o r n e y and s e r v e the M e x i c a n A m e r i c a n c o m m u n i t y .
D u r i n g l a w s c h o o l I w o r k e d w ith the d i s t r i c t a t t o r n e y in B e v e r l y H i l l s
/ i
a s a c e r t i f i e d s tudent and w a s a l l o w e d to p a r t i c i p a t e in c o u r t . I h a v e a l s o
»
b e e n e m p lo y e d by the L o s A n g e l e s L e g a l A i d F o u n d a t i o n in E a s t L o s A n g e l e s ,
and the C a l i f o r n i a R u r a l L e g a l A s s i s t a n c e P r o g r a m i n Santa M a r i a . M y
p a s t and p r e s e n t e m p l o y e r s h a v e found m e h ig h ly q u a l i f i e d to h a n d le a t t o r n e y
r e 1. a t e d p r o b l e in s . j
M y job r e l a t e d e x p e r i e n c e i s a m o r e r e l e v a n t f a c t o r in d e t e r m i n i n g
\
m y a b i l i t y to funct ion a s a q u a l i f i e d a t t o rn e y than i s the C a l i f o r n i a B a r E.var..,
w h ic h i s l im i t e d in s c o p e and. d o e s not t e s t the a b i l i t y o f a m i n o r i t y l a w y e r
to r e l a t e to h is c o m m u n i t y and to o r a l l y p resent , a cas.e in c o u r t .
// •
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//
F o r th o se r e a s o n s I w o u ld l i k e to s e e the b a r e x a m e l im i n a t e d and an
a p p r e n t i c e s h i p p r o g r a m ins t i tu ted to i n s u r e that q u a l i f i e d a t t o r n e y s a r e a d
m it ted r a t h e r than i n d i v i d u a l s who can p a r r o t r e s p o n s e s to a p a r t i c u l a r e x a m .
1 d e c l a r e u n d e r p e n a l t y o f p e r j u r y that the f o r e g o i n g i s t r u e and
c o r r e c t .
D a t e d th is o ? ? d a y o f M a r c h 1972.
By Q & d -.'4 ^ ______
( 7
P E R C Y D U R A N
Subscribed and sworn to before me
th is 27th d a y o f M a r c h 1972.
A' H cr SvJ., F -.1 s. a .!. 9 o
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STATE OF CALIFORNIA )• AFFIDAVIT OF
) sr,, LORETTA S. AYALA DE SIFUENTES
COUNTY OF LOS ANGELES )
My name is Loretta S. Ayala de Sifuentes. I am a
Mexican-Amcrican, graduated from UCLA School of Lav? in June 1971.
I took the California State Bar Exam given in August 1971, and
failed to pass.
In order to pursue my undergraduate and legal education
it v;as necessary for me to become heavily indebted, which debts
have now become due. Also, due to these same financial stresses,
among others, it lias been impossible to build up any financial
reserves. Under normal circumstances, and these circumstances
apply to most Mexican-American law graduates, I would nob have
been a*ble to consider the possibility of studying for a second
bar exam, I would have had to forego obtaining work commensurate
with my legal training, I would not have been able to consider
giving legal service to the Mexican-American community -- a service
which is badly needed. Were it not for the Reginald Ileber Smith
Fellowship Program I would be in the same boat with the majority
of other Mexican-American law school graduates, jobless or v.xith a
menial job, taken out of financial necessity.
While I was not at the top of my graduating class, I did
very well in numerous classes in law school, receiving the top
grade in some, and my teachers consider me. to hiive the ability to
become "a very fine lawyer." I 'have worked for the public defender
in I.os Angeles in their law clerk program in the misdemeanor courts
and received praise from my superiors. Presently, I am working
under the Reginald Heber Smith Fellowship Program and my attorney-
colleagues consider me to have the ability to be- a good lawyer.
Were it not for the Fellowship Program, I would be pre
cluded from giving any legal service to my community, the
Mexican-American community — and my legal education to that very
- 1 -
PKTITIOUER'S EXHIBIT 19
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\I do not believe that the California State Bar •
Examination is a valid indication of my ability to function as
a lawyer. It does not test my ability to do research, write .
memoranda, or present a case. It does not test my ability to
relate to and understand the legal problems of the Mexioan-
American community.
Because of .the above and because the Bar Exam is
obviously culturally biased (less than half of the minorities
taking the test pass it), this outmoded method of differentiating
between candidates for the California Bar should be retired
promptly, in the interests of justice.
DATED : / (>' /- ___,19 72.
important extent would be a waste.
/ )/ c ■ ••/ L
aL ~ XX -
I /
k.1- t (-
LORETTA S. AYALA DL SIFUKL'TES
^ ' /
Subscribed and sworn to before me
this 20th day of March, 1972.
Notary Public in and for the
State of California.
w-o
S K. .
( ' " ' f
r:. *.
WOT r;j •'! W .ir-CPf;:,
l
; i')<; ;i;y ’ i’- IS i'OU.'UY
•YA rv; -ics J;n. 13.1 e. I'
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A Fl - ' IDA.V JT
S T A T E O E C A L I P O R N l A )
) PS •
C O U N T Y or-' L O S A N G E L E S )
M v n a m e is J A C O H O R O D R I G U E Z , and 1 livfe at 2621 E . 4th S t r e e t ,
j jG s A n g e l e s . I a m a 35 y e a r o ld M e x i c a n A m e r i c a n and I h a v e l i v e d a l l m y
L i e in E a s t L o s A n g e l e s . 1 a m a m e m b e r o f L a C a s a de C a r n a l i s m o , a c o m
m u n i t y o r g a n i z a t i o n l o c a t e d at 1702 E . 4th S t r e e t . T h i s o r g a n i z a t i o n s e r v e s
the h o u s in g p r o j e c t n a m e d P i c o A l i s o H o u s i n g and a l s o the B o y l e H e i g h t s
a r e a .
I have had many legal problems, such as landlord-tenant problems
and criminal problems but have had no one to turn to because there are no
Mexican American attorneys in our neighborhood to serve our people.
I feel it is unjust to deny us representation by Mexican American
attorneys, especially once they have graduated from law school because they
have to pass the California Bar Exam.
I declare under penalty of perjury that the. above is true and correct
to the best of my knowledge.
Dated this /J? _ day of March 1972.
B y v j ~ 7 ■ << <'!-,
(7
J A C O B O R O D R 1G U E Z
Subscribed and sworn to before me
th is 1 3th d a y o f M a r c h , 1 972.
-A ' ^ClTN o
PETITIONER'S EXHIBIT 20
\\ z)■LA
Notary 'Public in and for the
State of California.
TAUiV '■ T•f, .,*• •, NO- f.: ■ •«) v.
\ V .'. v ■' i.v-c CO'" "■
My" r j ; •• V y i . ■
J.. . < V. ••! r i* V.i . r ■ /■ ?* C. 4. 1 0
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AFF IDAV IT
S T A T E O F C A L I F O R N I A )
)
C O U N T Y O F L O S A N G E L E S )
M y n a m e is E V A G A R C I A and 1 l i v e at 1314 S. W e s t l a k e i n - L o s* iI!
A n g e l e s . T h e f o l l o w in g is an a c c o u n t o f o u r e x p e r i e n c e w ith an A n g l o a t t o rn e y
i
w h o w e had to tu rn to b e c a u s e w e cou ld not f ind a M e x i c a n A m e r i c a n a t t o r n e y . '
M y h u s b a n d , S1DIO JO E G A R C I A , i,s 48 y e a r s o f a g e , he h a s a 3 rd ■ i
jI
g r a d e e d u c a t io n and i s s e m i - l i t e r a t e . Tie cannot r e a d m a n y w o r d s n o r can
he r e a d a n e w s p a p e r .
*
H e w a s c h a r g e d w ith n ine c r i m i n a l o f f e n s e s and w e t u rn e d to an a t t o r -
I
n e y w ho to ld us he w o u ld r e p r e s e n t m y h u s b a n d f o r $500. 00. A f t e r m u c h d e - :
.
l a y and t r o u b l e w c w e r e a b l e to p a y the a t t o r n e y $500. 00. M y h u s b a n d w a s
Ii
s u b s e q u e n t l y found g u i l t y o f the n ine o f f e n s e s .
' T h e a t t o r n e y then told us that f o r $250. 00 m o r e he w o u ld h a nd le the
;
a p p e a l . O n c e a g a in w e put o u r c o m p le t e t r u s t and hope in the A n g l o a t t o rn e y .
• . »
t
A f t e r m u c h d e b a t e w e tu rn ed to a n o t h e r A n g l o a t t o r n e y who a d v i s e d us that
II
b e c a u s e o f i m p r o p e r r e p r e s e n t a t i o n w e shou ld ins t i tu te p r o c e e d i n g s to h ave
. i
the a t t o rn e y s u s p e n d e d o r d i s b a r r e d f r o m the U . S. C o u r t o f A p p e a l s f o r the
i!
Ninth C i r c u i t . On Sept. 28, 1971 the C o u r t s u b s e q u e n t l y o r d e r e d N o . M i s c .
I
5346, the a t t o rn e y be s u s p e n d e d f r o m p r a c t i c i n g l a w b e f o r e the C o u r t f o r a
i
p e r i o d o f t h r e e y e a r s and that the a t t o r n e y ' s n a m e be r e m o v e d f r o m the r o s t e ri
i
o f a t t o rn e y s a d m it t e d to p r a c t i c e b e f o r e the C o u r t .
i
i t ' ■ •• !PETITIONER'S EXHIBIT 21
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//
Because of my husband being incarcerated and because of our pa up. r
condition we have turned to a federal public defender to handle my husband's
appeal case.
We had to turn to an Anglo attorney who was insensitive to our finan- j
!
cial situation and to ray husband’s education because there were no Mexican 1
American attorneys available. I feel a Mexican American attorney would
/ •
have understood our financial and educational situation and we would have
felt secure in knowing that because of his sensitivity to our problem he would
adequately represent us. . . . .
Until more Mexican American attorneys are allowed to practice lav.
there will continue to be injustice awarded to Mexican Americans because of
the lock of Mexican American attorneys to speak in behalf of our people.
V
I declare under penalty of perjury that the above is true and correct
to the best of my knowledge.
Dated this /4^ day of March 1972.
Subscribed and sworn to before me
this 16til day of March, 1 972.
n i • •« 11 (A:
i ;-s »: <-f,*,'A • .u i '• b V v .
•tS I* T lXxC., f / I • ■ , ' d t. I
Notary Public in and for the
State of California.
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AFFIDAVIT IN SUPPORT OF PETITIONERS
3T/ITE OF CALIFORNIA
) S'S .
IOUNTY OF SAN FRANCISCO)
I, SAM BIRENBAUM, being first duly sworn, do depose and
1. My name is Sam Birenbaum. I am a resident of the Stat:
of California, residing at 460 B Cascade Drive in the city of
Valley, County of Marin.
2. I am a student at Hastings College of the Law in
San Francisco, where I have recently completed my second year of
study.
3. In Metreh of 1972 , I was asked by the National Associa
tion for the /advancement of Colored People - Western Region to
conduct a survey concerned with the change in qualifications of en-
colees and the change in the number of applicants to accredited law
schools in California.
4. Between March 15 and April 1 of 1972, I made such a
survey. I sent requests for information to six law schools: lias tin-:
lollege of the Law, Golden Gate Law School, Boalt Hall, Stanford Law
School., U.C.L.A. Law School, and U.S.C. Law School. Three of the
schools made some response to my requests: Boalt Hall, Stanford Law
School, and U.C.L.A. Law School.
5. Each school was asked to supply seven figures for each
/ear beginning with 1952 until 1972. Those figures included: the
PUTTTIONFRiJLJiFHIB1V. ?_?_
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1/
average and median Law School Admission Tost .(hereinafter L.S.A.T.)
score for all admittees, the average and median undergraduate grade '
joint for all admittecs, the number of applications received, the
lumoer of persons admitted, and the number of persons actually cn- i
rolled. |
6. According to the statistics supplied by Stanford Lav;
/ ISchool in 195.9 the average L.S.A.T. score of an admittee was 563 , ;
four years later, in 1963, the average was 611, in 1967, it jumped
19 points to 680 and in 1972, it is approximately 719. Thus, the the
ljust thirteen years, from 1959 to 1972, the average L.S.A.T. score of
m admittee to Stanford I,aw School lias increased from 563 to 719 -•
.56 points:
7. A similar trend is apparent with respect to under-4
iraduatc grade point averages of admittces. In 1959 it was 2.91 (jure
>elow a "B"); in 1963 it increased to 3.02 (a"B" average); in 1967
i
.t was 3.28 (a "13+" average); and .in 3.972 , the average undergraduate .ii i
trade point was approximately 3.72, thus requiring an "A-" grade
iaverage of admittces.
.
8. For the-sake of comparison, statistics from U.C.L.A.* i
.aw School showed that both the average L.S.A.T. score and under
graduate grade point average of admittces have increased over the pa=-
hree years. In 1969, the average L.S.A.T. score of admittces was
30; in .1970 , it was 650; and .in 1971, it was 660. ‘In 1969, the
1/
Sec Attachment A: Response from Stanford Law School
f ficials. Th.is /.Ltachment i. s incorporated hero in by reference. I
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iverage undergraduate grade point was 3.4; in 1970, it was 3.5; and |
.n 1971, it was 3.6.
9. The figures supplied by both Stanford and U.C'.L.-A. Law I
Schools with respect to the increase in both L.S.A.T. score and under
jraduate grade point averages of admittees can, be considered, in my
jp.inion, to be the typical situation of all California accredited
.aw schools over the past two decades'. -
10. Not only has there been a dramatic increase in the
jualifications of admittees, there has also been an astounding in-
:rease in the sheer number of lav; school applicants. In 1964, 1029
versons applied to Stanford Law School; in 1968, 1748 applied; and in
t.972, there were 3867 applicants - nearly four times as many as light;
'ears ago. What makes their figures all the more demonstrative of
die astounding competitiveness presently encountered by law school
tpplicants is the fact that over the same period of time there have
>een essentially the same number of positions available for each of
he past eight years: between 155 and 160. Thus, in 1964 15% of all
ipplicants were eventually enrolled, whereas in 1.972 , only 4% of thou
'ho applied to Stanford Law School were enrolled.
11. The figures received from Boa.lt Hall also demonstrate
he enormous increase in the number of 1aw school applicants even
.hough the number of positions available have remained substantially
.he same in comparison. In 1955, 352 applications wore considered,
2/
2/ tSee Attachment B: Statistics on Boalt Hall applications,!
dmissions, and enrollment.' This Attachment .is incorporated herein
>y reference.
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' • iipproximately 5,700 applicants (a 1,620% increase over 1955) and 295'
i/ere enrolled (5% of the apol.icants) . j
3 2. The fiaures supplied by both Sta'nford Law School andJ • i
j
5oalt Hall v;i th respect to the number of applications received, the
ilumber of persons admitted, and the number of those actually enrolled
:an bo considered, in my opinion, to be the typical situation of allj
iaccredited lav; schools in California.
v - I
/hile 143 were enrolled (40% of the applicants). In 1971, there v;ere
'I V
f
/■ ;• /
/. ' b o w v
SAM BIRENBAUM, Affiant
Subscribed and sworn to before ine
;his / ^ J r- day of June, 1972.
/ ! / f \J_.._ f t /!'■•/ { f. y A .
Notary Public
̂ ; '>M
<i V • ■>
E A L(a t If.LIN Gl I0PACK
IV0 “ ' -H ■' P-U'l IC- CAllFOWMIA
O S-*N Ff.AIvCISCO COOMTV „
$$ioi! txjiiicsOct. io, 157-1 }.Iv.y
lC9f> St., Sio. 30;, .9-;) 03
I
Attachment - A
• >
Attachment B
BOALT HALL STATI STICS
Year Aral leal ions Ad nit ted .'crcentage . Enrolled P e i: c. e;. t a g a" o f
C'eus ido red Admit tail Admitted Knr/ollc
1955
%352 256 7 ?.% 163 56%
19.60 70S 517 63% 268 5.7%
1952 375 6S7 55% 271 56%
1963 1,167 60S 53% 366 57%
19 6 6 1,690 531 36% 279 53%
J. 9 6 5 15,636 539 36% 277 51%
1956 1 ,6 65 567 37% 273 51%
1967 1,671 538 37% 257 68%
1963 1,933 675 36% 2 79 61%
1969 2,610 666 25% 276 61%
19 70 3,697 f> 1 A 17% V. 5 5 69%.
! 9 7 i. 5,7('.'0(.uv>ron.) 566 «nr 295 (1
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2G
r
AFFIDAVIT IN SUPPORT OF PETITIONERS
STATE OF CALIFORNIA ) .
) ss, ;
COUNTY OF SAN FR7.NC I SCO)
I, BEN SHAFTON, being first duly swqrn, depose and say:
1. My nano is Bon Shafton. I am a resident of the State
of California, residing at 3407 Spruce Street, in the City of
Berkeley, County of Alameda. '.
2. I am a student at Boalt. Hall School of Law, University
of California at Berkeley, where I have recently completed my.
second year of study.
* 3. In March of 1972, I was asked by the National Associa
tion for the Advancement of Colored People - Western Region to
conduct a survey concerned with cost to applicants of the
California Bar Examination.
4. Between March 30 and April 10 of 1972, I made such a
survey of a random sample of all 1971 graduates- of Boalt Hall
School of Law, University of California at Berkeley. The names
and addresses were obtained from the Boalt-Hall Alumni Association.
The random sample was selected from all graduates who, after
graduating, reported a California address. It was assumed that
these persons were most likely to have had experience with the
California Bar Examination. Each randomly selected graduate was
Ii
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li
i
?|
::t
i
mailed a copy of a questionnaire entitled "Costs of the California
Bar Exam to 1971 Lav; School Graduates Who Passed the California
Bar," a copy of a questionnaire entitled "Costs of the California
Bar Exam to 1971 Law School Graduates Who Have Not Passed the
PETITIONERS' EXHIBIT 23
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out and return the applicable questionnaire. (For copies of the
questionnaires used, see Attachments A and B.)
responses.
/'
6. Respondents were asked to comment on three general
costs involved in taking tine bar examination — fees to take the
exam itself, tuition for bar preparation courses, and income from
the practice of law lost as a result of the lag between graduation
from law school and admission to practice. Eighty-seven percent
(87%) of the applicants spent between $100 and $200 on fees to
take the examination; thirteen percent (13%) spent over $200.
Thirteen percent (13%) spent under $100 on bar preparation
courses; seventy~three percent (73%), between $100 and $300; and
fourteen percent (14%), over $300. Average lost income totaled
$2,06,1. From these statistics, a rough approximation of the
average total cost per applicant is $2,300 after one attempt at
5. Of the questionnaires sent out, 67% were returned
passing the bar examination.
BEN SBAETON, Affiant
Subscribed and sworn to before
me this 24th day of May, 1972,
Notary Public
JU-m M .iM .it , Sr .it).'. S ,n lun.i-.rn. C.i. MI 03
-2-
COSTS OF THE CALIFORNIA BAR EXAM
TO 1971 LAW SCHOOL GRADUATES
WHO PASSED THE CALIFORNIA BAR
Sex: Male___ Female___
Racial: or Ethnic background: . •
White___ Black___ Mexican-Arr.erican_Asian_______ Other
Did you receive financial aid in law school?
Yes__ No__
If so, what kind? Loan___Grant______ _ Work Study___Other_
Approximately, how much money did you spend in total to prepare
for the bar exam including review courses, outlines, etc.?
Under $100 $100-$300____ Over $300___
Roughly, how much did you spend in fees to take the exam?
$100-$200___ Over $200___
Please estimate the costs in lost income to you (and your depend
if any) between the time you graduated law school until the time
were eidmitted to the bar.
Did anyone (including parents, spouse, future employer) help def
any of the expenses incurred in preparing for the exam or taking
the exam?
Yes___ No___
Were you fully employed between the time of graduation and takin
the bar?
Yes___ No___
Between the time of taking the bar and admission? ••
Yes__ No___
If you were employed during either period, was your job law-rela
Yes No
a t t achm ent a
9.
10.
11
12.
13.
.14 .
March, .19 72
Pica so cs. ti irlate your' approxthe pract..ice of lav; duo toto pract.i,co upon graduacion
Did the 1ng bo tv;een gradual:financiul 1 i ardsh io?
Yes____ No_
Did you suffe r any emot ion a.'a dm.ission to the o c i icy
Yes No
earned through
.n any
If no, describe briefly if you like
Arc you presently practicing lav;?
Yes___ No___
If so, describe your practice briefly.
Had you been assured this job before you p; ;d the bar?
Yes
Please comment briefly on any positive or negative aspects
experience v/ith the bar examination system of admission to of your
practice.
COSTS OF THE CALIFORNIA BAR EXAM
TO 19 71 LA'S SCHOOL GRADUATES
WHO HAVE NOT PASSED THE CALIFORNIA BAR
1. Sex: Male___ Female___
2. Racial or ethnic background:
White___ Black__ Mexican-American_Asian______ Other_____
3. Did you receive financial aid in law school?
Yes___ No__f_
If so, v/hat kind? Loan___Grant_____ Work Study___
4. Approximately, how much money did you spend in total to prepare
for the bar exam, including review courses, outlines, etc.?
Under $100___ $100-$300___ Over $300___
5. Roughly, how much did you spend in fees to take the exam?
$100-$200___ Over $200___
6. Please estimate hew much it cost you (and your dependents if any)
to live from the time you graduated law school until the time you
received word that you had not been admitted to practice.
7. Did anyone (including parents, spouse, future employer) help
defray any of the expenses incurred in preparing for the exam
or talcing the exam?
Yes No
8. Were you fully employed between the time of graduation and taking
the bar? * „
Yes No
Between the time of taking the bar. and receiving word that you
had not been admitted?
Yes No
ATTACHMENT IV
March, 1972
10 .
11.
12.
13.
14.
15.
16.
17.
9. rlease estimate your approximate loss in money earned through
the practice of lav; due to live;• fact that you were not admitted
to prac t ice upon graduation.'
Have you suffered any emotional stress since your graduation from law school?
Yes__ No___
If so, describe briefly if you like.
Have you experienced any financial hardship as*a result of taking the bar exam?
Yes No__
■»
Please estimate your law school class ranking:
Top Third___ Middle Third___ Lower Third
Before the bar exam, had you been assured employment practicing law upon admission to the bar?
Yes___ No
Have you taken the bar exam a second time? Yes ' No
Do you plan to take it a third time if you fail? Yes No
If you plan to practice law, what type of practice do you expect . to enter?
Are you presently employed? Yes___ No
Please comment briefly on any positive or negative aspects of
your experience with the bar exam system of admission to practice.
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A F F I D A V I T ’
S T A T E O F C A L I F O R N I A ' )
) s s .
C O U N T Y O F L O S A N ( T E L E S ) j
M y n a m e is R O B E R T A . R A Y A and 1 l i v e at 3410 H u n t e r S t r e e t in
L o s A n g e l e s .
1 e n t e r e d the U n i v e r s i t y o f S ou th e rn C a l i f o r n i a L a w S ch oo l in S e p -
X I
t e m b e r o f 1970. A f t e r e v a lu a t i n g m y s i tua t ion , I r e a l i z e d that once 1. j
c o m p le t e d the s tudy o f l a w I w o u ld h a v e to take the C a l i f o r n i a B a r E x a m
w h ic h h a s such a h igh f a i l u r e r a t e . I fe l t that e v e n i f I c o m p l e t e d m y l a w
c o u r s e s s u c c e s s f u l l y 1 w o u ld s t i l l be p r e v e n t e d f r o m p r a c t i c i n g l a w unti l
*
I p a s s e d the b a r e x a m .
A s a p e r s o n w h o l i v e s in E a s t L o s A n g e l e s I fe l t that I w o u ld be a
g r e a t e r a s s e t to m y c o m m u n i t y b y t a k in g on a p o s i t i o n w h ic h I fe l t w o u ld I
.
a l l o w m e to he lp the M e x i c a n - A m e r i c a n c o m m u n i t y i m m e d i a t e l y . A m i n o -
I
r i t y s tudent m u s t w o r k f r o m the t im e he e n t e r s h igh s c h o o l not o n ly to
|
support himself but his family also. Realizing that it would take me three
I
y e a r s to get th r o u g h l a w s c h o o l and then f a c in g the p o s s i b i l i t y that I m ig h t
i
be u n e m p lo y e d f o r s ix m o n th s o r l o n g e r w h i l e I p r e p a r e d f o r and w a i t e d
.
f o r the r e s u l t s o f the C a l i f o r n i a B a r E x a m , 1 d e c id e d that I w a s not in an I(
e c o n o m ic s i tua t ion w h e r e 1 cou ld a f f o r d to s u p p o r t m y s e l f and m } r fam i ly ,
so I w a s f o r c e d to l e a v e the s tudy o f l a w in F e b r u a r y 1971.
//
//
' ■ i
PETITION?*!]!1 f> EXHIBIT 24
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//
I d e c l a r e u n d e r p e n a l l y o f p e r j u r y that the a b o v e is t r u e and\
c o r r e c t to the b e s t o f m y k n o w le d g e .I
D a ted this 3 0 ' i 'v l ’ay M a r c h 1.072,
B y ^ V \ . \ V ‘V " V , „_■ vv\ VsA/V j
\
R O B E R T A . R A Y A
S u b s c r i b e d and s w o r n to b e f o r e m e
th is 30th day o f M a r c h , 1972.
I.
n,
N o t a r y P u b l i c in and f o r the
State o f C a l i f o r n i a .
O
O iT ie i. . .. .n
t *tr •• ib --*?}•«• /i. . i: * CA 0: .V ./ LOS . ;• . CO
u-r -< ■ .f'-f v
. ' • A 41 - r i VO, E. > A. p>. o -c-’ .C * "
- 2 -
AFFIDAVIT IN SUPPORT OF
PETITIONERS. V
STATE OF CALIFORNIA )
) SS:
COUNTY OF SAN’ FRANCISCO ) -
DONALD P. McCULLUM, being first duly sworn, deposes and says:
1. I am a black attorney duly licensed to practice in the State of
California, and have practiced law in Oakland, California since December 1955.
2. 1 have been engaged in the private practice of law in Oakland,
California since January 1960.
3. I was a deputy District Attorney for Alameda County from 1955 to
1960 and during that period served as a prosecutor in the criminal division
of the Alameda County District Attorney's office.
4. During my tenure in the District Attorney's office I was the only
black lawyer on staff of approximately forty lawyers and a substantial
majority of the defendants appearing before the criminal courts during this
period were black and other minorities and it is my belief that this condition
presently obtains.
5. During the period 1959 through 1971, on a volunteer basis, I was
active in the Oakland branch of the National Association for the Advancement
of Colored People (NAACP) serving as its president for eight years and chair
man of the West Coast P.egion NAACP (9 western states) for four years. During
this period I have, represented and counseled many black'clients on criminal
charges, employment discrimination, civil rights cases and unpopular causes.
6. It has become apparent based on my experiences that there is a
dearth of black practitioners available in the State of California to meet
the need for adequate representation of members of minority groups.
7. In order for the attorney to properly understand the factual basis
of the client's case, there should be full disclosure of those facts to the
attorney as perceived by the client. As a consequence, of the pervasive ra
cial attitudes in the United States, black clients are inhibited in relating
nuances of perception to their white advocates; and a like lock of appre
ciation of the limited disclosure impairs the ability of the white attorney
PETITIONER'S EXJ5IPJT 25
t o adequately represent the client's cause.
8. The' general lack of success of black applicants in passing the
California Bar examination and the substantial disparity between the black
law school graduates and the successful admittees suggests racial discrimin
ation in the administration of the California Bar Examination. This
effectively results in an inadequate resource for advocacy by the black
community and an erosion of the commitment to seek justice within the frame
work of our laws.
Executed on June 13, 1972.
.Subscribed and sworn to before me this day of June 13, 1972.
* O l-T ld A b SKAj,;: . 2
© , MARY R. PARKrR "S
h’OIAKY Ht','11C CA!.|fO!tN!A '£
ALAMCDA COUNTY §
Mjr Cor.imissicn [jpms J;n. 5,1075
\f\A . (V«
MARY R.
Notary Publivy
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TATE OF CALIFORNIA )) s s.
OUNTY OF SAN FRANCISCO)
/'
I, SIDNEY M. KOLINSKY, ESQ., being first duly sworn, depose
nd say:
1. I am Chief Counsel for Petitioners'in the instant
latter. My business address is 433 Turk Street, San Francisco,
California 94102 .
2. Attachment A is a copy of a’ letter to the Committee of
iar Examiners is a \true and authentic- copy of the demand letter .. — -
" sent to the Committee of Bar Examiners on May 12, 1972; it is in-
:orporated herein by reference.
3. Attachment B is the answering letter v;hich I received I
n response from the Bar Examiners dated May 24, 1972; it is incor-
^orated herein by reference.
AFFIDAVIT IK SUPPORT
OF PETITIONERS
Subscribed and sworn to before
h .i s ./1 . day of June, 197 2
A r* '- . v . .*>. • • V * ' . f ̂' *0: i
X . - ) K ! AI t■ ecu. o. icoI'A »>■ NOTARY - c-v 1 f (
V. ’ V;?.'C:oCO CCUf.'l !>Mv CVi.-ni,"..■on 1 *;■ h-: . •> / 1,7 3 .;•>*•*<;' c .1 v ̂;. "'.'•--v- s •"** n -i. - J 'j k ; : S.:n r■ ; • l,A V .\;'J
A jU & l
>
Ylotarv Public
PETITIONER'S KM III BIT 2 6
May 12, 1972
Committee of Bar Examiners
540 Van IJess. '
San Francisco, CA 94102
Gentlemen: ■ •
As you are aware, a number of individuals ana
groups interested in admission to the practice of lav; in
California repeatedly have expressed to you concern over
the present system of screening applicants for competence *
Specifically, many Flack aid Mexican-American applicants
who failed the present screening device— the California Bar
Examination— have boon deprived of (a) equal protection of
the lavs
natcry c
profess;
inter <:A
between
: because the exam has been shown to have
:ffect noniust those tv:<
ami
'■ ; he pro £.-snt xa rm o:
ana competence to practice lav;
occur for future examinees uni
process are made immediately,
all the more serious because o
ative devices which are availa
which would not irividicus.lv di
a device which, in its present form, is not only burdensome
to applicants but does little if anything to guarantee the
public a high standard of legal competence.
> Groivjs ana has not been
■■) 'due proc<3s s of lav; because,
- -L <tc X '"c! Li.OViix1 r o 1 at i on s la i pCaliforni ci nar Examination
The s ame doprivations will. ' " C' ■ .a .; changes in the selection
Tbe legal P r.ae iciencies are
the const uctive and a f f ira
ile •to protaat the nublie and
criminate. 0f course, these.
11 portion of the shortcomings
alifornia Y'nr Examination—
We have had extensive convers
documented the di scrim.
Examination, pointed i
failings, and suggested numerous alt*
tinued use.
C a 1 x .1. o rnx a b u...
nations with you in
story effect of the
many of its other
natives to i.ts con-
It has been many months, at the least, since these
facts have been made known to you. Unless you agree within
ten days to undertr.i:e comi--\rohen s9V o , affi rm.ative action to
re;.odel the F2-escat systc; iof ■j: A>r;,V-ing apnd.ien n t s for a dm.2. r>
sion to prac11 ice v;hioh w.i1 )J. bo con*"*;i. stent. with the rightrj
of minoratv 7>ersons to pr tXvvtico i \s] and insu.re that onlyqualified upy-1icants T 7ill .bo a J .tV.ed to pra ctice r v;civ;i11be forced toi ta]:C i c.;i >P-opri lto S L pr. to vinod.oa to the righto f our clicn e nd thc. inter e sts oi; tlie gene ra.l public,
ATTACHMEET A
Committee of Bor Examiners
Pago Two Hoy 12, 1972
\
. . . We ho?° your' prompt affirmative response vilc.limine.co the necessity of court action on our part
Si .nee rely,
SIDNEY 11. KOLINSKY
Attorney at Law.
i n r , r .wivj ivi v r i v_> <. A.?i 2.J. "N LiVO
O F T I C I S T A T E E A R O F C
Francis N. M arshall, C l . t r r r . jn
SAN I RAM ISCO
'JaMTS R. JdV-X AiC'S, V iu - U - i t r r : .r;
R \ , \ p ASAN MCKNARDINO
R ichard <i. Logan
OAKLAND 540 V A N NF.SS A V E N U E h j r s
Paul A. P m kson SAN F R A N C I S C O 9 H 02 V & S •
SAN I'll (.o
I rank J<. Ru iiav.dson
626-3950
s\c pam : nto
John W. Siij nk, HI
I OS AN<-Ll hS
Samiiti I . W illiams
' . I.OS AM.l LI S
1541 W i L S I l I R E B O U L E V A R D
LOS ANGELES 90017
48-1-1 -151
KrNNFTI! D. Mf'Cl.ouilY, *
El mi k S. Sii phi ns , .i!
R u m H avckmi v. An:. S 'C '.:-r>
SAN |'l< ANVlSCO
Altufa I.akzil; ;;r, A n.
LOS AN'LI I V.s
May 24, 1972
/\
f
\
S i d n c y M . V,T o 1 i n s ley, Esq.
Public Advocates, Inc.
4 33 Turk Str eetSan Francisco, California 94102
Dear Sir:
At a meeting of the Committee on May 20, 1972,
your letter of May 15 addressed to the Committee .was con
sidered.
Please be advised that the Committee is continu
ally engaged in the reevaluation of bar examination pro
cedures. You have undoubtedly noted the Committee's work
with the development of multiple-choice questions in the
most recent bar examination. The Committee has determined
that the next upcoming bar examination will also include
such multiple-choice questions.
No other alteration in the testing procedures is
in immediate prospect. However, I can assure you that all
of-the many suggestions which the Committee has received,
including those from your group, have been and are still
being most carefully considered.
In your letter you mention that you have tried
to document "the discriminatory effect of' the California
Bar Examination, and its other failings." -This may imply
that you have acquired some statistical data having a
bearing on the problem. If you have such data, it would
be of great interest to us in.our further pursuit of the
most effective bar examination.
Sincerely yours,
<K .Quo.-«Av_c* .0. 'Q__
Franc is N . Marsh a11
Chairman
ATTACHMENT 13
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1G
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AFFIDAVIT IN GUPFONT OF PETITIONERS
I, Sill BIRENBAUM, being first duly sworn, depose and sa
1. I am a second-year law student at Hastings College of
the Lav; in San Francisco, California,- '
2. My residence is at 469 B Cascade Dr. in Mill Valley,
California.
3. During the period from April to June of 1972, when I
*
;as working as a lav; clerk to Sidney M. Wolinsky, I received the
attached resolutions, which are incorporated herein, from the Student.
Bar Associations at' Hastings College of the Law, Boalt Law School,
Stanford Lav; School, UCLA Law School, and University of Southern
California Lav; School .
:ic copies of the resolutions which I received from the Student Bar
Associations.
4. The five documents attached hereto are true and authe
subscribed and sworn to before me
n j
t.
hotcirv rum a.c r r .
PETITIONER'S FXHJBTT 27
RESOLUTION
"In recognition of the following facLs:
(1) The California State Bar Examination is
administered as a prerequisite to the licensed practice
of law in order to protect.the public from incompetent
attorneys.
(2) Virtually every graduate (985) of an
T> /—» f~' - ,1 T -,"r *.L ry V»* school eventually passes the California
Bar examination if he or she is financially able to
repeatedly take it -*■/ and, therefore, it serves little
purpose at least with respect to this group.
(3) The Examination has never been validated,
professionally 'or otherwise, to determine whether or not
the exam does indeed test those abilities which are
necessary to practice lav/ competently.
(4) The Examination tests only certain analyti
cal' and writing skills within an arbitrarily limited time
frame rarely encountered by practicing attorneys.
(5) The Examination does not, for example, test
judgment, oral advocacy, persuasiveness, research ability,
rapport with clients, and negotiating ability - all of
which arc the essential skills required of any professional
legal practitioner.
(G) The procedural structure of the Bar Examina
tion prevents an accredited law school graduate from
I/ jYfisocf on statistics provided by the California Comm
on Bar Examiners to the Mex ican — Amur ican Legal bo f e
and EduoaL.ion.il Fund in 1971.
1- o
RESOLUTION A
practice!ng the profession for at least seven months after
his or her cjrndunLion, 'the result of which is an estimated
cost of five million dollars a year in lost wages in ad
dition to-the costs of preparation'.
(7) - There are presently 367 practicing attorneys
in the State who never passed the bar exam (due to the
Second World War Veterans’ Exemption) including judges,
legal scholars, and senior partners in prestigious law firms
(8) The State Bar Examination has not been sub
stantially re-evaluated in terms of purpose or content for
nearly two decades even though there has not only been a
significant improvement of the qualifications of law school
applicants but also a radical intensification of competition
for the available positions in law schools.
We, the Stanford Law Association do hereby
recommend: that the present California Bar Examination, a
negative mechanism, be replaced by some affirmative alterna
tive which -would increase the competency of future attorneys
which would augment the quality of the California Bar and
the benefits to this state's citizens, and which would en
able all graduates of accredited law schools in the State
of California to be licensed and .permitted to professionally
practice without restriction, with ultimate admission to the
State Bar conditioned upon satisfaction of some affirmative
alternative.
The following are seven of many affirmative al
ternatives:
(1) A mandatory Extern Program bo tween thoisecond
~~ A ~~
c ' t h i r d years of li.iv/ scnoc.0. and admiss .1. on to the Lett
upon grnduafion.
(2) The sane as (1) except graduates arc also
required to attend a State Bar Sponsored Practical Training
Program for a two—week period after graduation and for a
three-day session one year a.fter graduation.
(3) The same as (1) except graduates are also
required to prepare and handle a misdemeanor trial v/iuhouv,
compensation under supervision within six. months after
*•
graduation.
(4) Incorporates (1) , (2) and (3) .
4
(5) A mandatory training for two months after
graduation and admission to the Par immediately thereafter.
(6) One year of legal services to under-represen
communities and admission to the Bar after six months.
(7) Admission to the Bar upon graduation, except
that graduates must practice with !an experienced attorney
for one year, or some equivalent, as determined by the Suat
Bar.
In addition, we would support litigation to x n s t x
some affirmative alternative based upon the principles dis
cussed and would agree to submit supporting papers as 'fne
of the court’ in order to achieve these ends.”
r
C
I
y ' -Bros'id oil
Stanford Lau‘-'A r; sop i a tion
.. . " KcSOIittTIQN . / . v • ; ; ;V:.' . ..
f. the following facts: ■ ; .
(i) The- Cal iforr. i:i Elate Bar Examination is
evf-'l a:; a p r r ofju iait-c ; i.o ; the /licensed pract.ic-.v
lav/ in order. to protecL the/publ ic:' fro:vi incomoatent:.-
(2) ' , Virtually.- -ts/oryx grad ante (981) .or;,-art :
lyool eventually (passes; theCalifornia'
f he oc she. is-finencdal.lv .able; to
t.1 / and, "therefore, it. serves iittlo-•''; ■
with .respect to this group .■
(3) The Examination has. never:been validated,
otherwise, to determine;whethar•c-r not
the.'ox era docs indeed tost' those.', abilities -.which are ; : /
necessary to practice lav? competently. .
(4 ) The Examination tests only certain analytic
and writing skills within an- arbitrarily;limited time--
frame rarely encountered by .practicing attorneys.-
(5 ) . The Examination does not, f o r >e x a m p l e t e s t
judgment, oral advocacy, persuasiveness', research .abilit
rapport with clients, and negotiating'ability - all of
-.•''I. •_ . ' * . ‘ ■' . *
which are the essential skills- recruited of any profes^xu
legal practitioner . • ..
(G) The procedural structure of the Bar Exam
tion prevents an accredited law school graduate from
"In rocoyn: t. 3 on
(i) Th
hdmini store:d,a:i
of law in c wlar
attorneys .
./'ex;' (2 )' • Vi
accredited.law
Bar Examine' tion
repealedly take
purpose a t ■ 1—
1 CO Oj
(3) Th
d r o f e s s. ion r1 1 y
inn
17'TiaHed"on statistics provided by the California Commit
on Bar Examiners to the Mexican-Amoricon Legal Da fens
and Educational Fund .in 1971.
RESOLUTION B
practicing the profession for at least seven non:
i f 'which is anh i s o r 1 c r g radua tioii, t h e r e s u l t o f
COs t o f £ i v e m i l l io n do l i a r s a y e a r
d i t i o n t o t he c o s hs o f prepares. t i o n . i
‘ (7) T h o r e ’ arc p r e s e n t l y '3 57'.
i n th e £ ta t: e 'who n e v e r p a s s e d . t h e . ba
Second oriel -Jar Veterans'' E x cr.ption) including;
.-legal schol ars , ■ and :soniorrpar tnors ■ in; prest;igio'
..••• . (d) The State Bar Examination than'" not'- b:
ntantial.ly rc-cvaluatcd in terms' of purpose' or :c<
nearly tv;b decades even though there has not ,onl
significant improvement: of the qualif icaticns or
applicants but also a radical, intensification' of
for 'the available positions 'in lav schools.'
lie, the University of Southern Californi
Bar Association, do hereby recommend: that the-
California Bar Examination,' a negative mechanism
placed by'some affirmative alternative .which v/ou
the competency of future attorneys, -which wouldf
quality of the California Bar and the benefits :.t
state's citizens,' and 'which would enable ail gru
accredited lav/ schools in the State of Californi
censed and permitted to professionally practice
restriction, with ultimate admission to the Stat
upon satisfaction of some affirmative alternativ
The following .are seven of many’..aff irmat
alternatives: .. • ,
(1) A mandatory Extern Program between
-2-
ciuh tes of
a' to be 1L-- ., ;
without ' '.
e Bar. conditior.s
r»
ive
the second
t .■
I • • •
and third vea is of 'lav? s ' c h c o l and admission to the Par.
upon gt aduafcion.
(2) Tim same as (1) except graduates, are also : . V
required to a!, t end a State Bar Sponsored Practical • Training
Program for a Luo-weel; period after graduation and for a
ion Vono year after.graduation. ;; vî y'.'jq
i'.o sa.no asf (1) , except graduaLes- are 'also ’
opure and 'handle -a misdemeanor ftrj.a.l 'without •
•• c o : i i : x ’ t i M l : j , o n u n d e r s u p e r v i s i o n - w i t h i n s i x m o n t h ' s a f t e r '
. throe--day.' sest
. (!) '1
.required to pi
gr;adua ii on. ’ 1. ;
i j ''f .- pv ...1;. yii i
('-•) Incor j.;orantes (1 ) , (2) and (3) • ... V
(5) A ;[vta ncci i:.cry tr ai11 ing for two..:months af ter
gr;idua tion anQ ad mi S li ion.to the •Bar inimecli,a t civ-', t: i -y. r e a f t e r
g o \Oil.e yeai of lega 1
• i. , ' • .
services to u ncl ci r ~ r q ,?• _r ■.* o o n t;
cor:.mu; j i c i e s ar.d ; adm lssio.ti J- l- Ui L-O i_ne Bar after six moatho,
(7) Admission to the Bar upon graduation, except •'
that graduates must practice with an experienced'attorney.'Cim
for one year, or some equivalent, as determined by the Scatiix
Bar. ' •; ■ .'.V.'. '"'a o'. ; ./■•;_ .tpy.
.. . In. addition' we wwuld support litigation to Institute*I
some affirmative alternative based upon the principles dis-'m*
cussed and would agree to submit supporting papers as 'friends
of the court' in order to achieve these ends." :
Pres relent, University "of Southern
• ■ . Calif.oinia Stuaent Bar Association
• **
RESOLUTION
"In recognition of the following facts:
(1) The California State Bar Examination is
administered as a prerequisite to the licensed practice
of law In order to protect the public from incompetent
attorneys.
(2) Virtually every.graduate (98%) of an
accredited lav; school eventually passes the California
Bar Examination if lie or she is financially able to
repeatedly take it1/and, therefore, it serves little
purpose at least with respect to this group.
(3) The Examination has never been validated,
profes.ionally or otherwise, to determine whether or not
\
the exam does indeed test those abilities which are
necessary to practice law competently.
(1) The Examination tests only certain analyt
ical and writing skills within an arbitrarily limited
time-frame rarely encountered by practicing attorneys.
(5) The Examination does not, for example, test
judgment, oral advocacy, persuasiveness, research ability,
rapport with clients, and negotiating ability - all of
which are the essential skills required of any professional
legal practitioner.
17 Based on statistics provided by the California Committee
on Bar Examiners to the Moxican-American Legal Defense
and Educational Fund in 1971.
RESOLUTION C
(G) The procedural • strueture of the Bar Examine-
\
tion prevents an accredited law school graduate from prac
ticing the profession for ht least seven months after his
or. her graduation, • the result of which is an estimated cost
of five million dollars a year in lost wages in addition
to the costs of preparation.
(7) There are presently 367 practicing attorneys
in the State who never passed the bar exam (due to the
Second World War Veterans' Exemption) including judges,
legal scholars, and senior partners in prestigious law
firms.
(8) The State Bar Examination has not been
substantially re-evaluated in terms of purpose or content
for nearly tvo\decades even though there has not only been
a significant improvement of the qualifications of law school
applicants but also a radical intensification of competition'
for the available positions in law schools.'
We, the Boa.lt Hall Students' Association do
hereby recommend: that the present California Bar Examina
tion, a negative mechanism, be replaced by some affirma
tive alternative which would increase the competency of
future attorneys, which would augment the quality of the
California Bar and the benefits to this state's citizens,
and which would enable all graduates of accredited law
schools in the State of California to be licensed and per
mitted to professionally practice without restriction, with
ultimate admission to the State Bar conditioned upon satis
faction of some affirmative alternative;
The following arc seven of many affirmative
\
alternafives:
(1) A mandatory Extern Program between the second,
and third years of law school and admission to the Bar upon
graduation.
(2) The same as (1) except graduates are -also
required to attend a State Bar Sponsored Practical Training
Program for a two-week period.after graduation and for a
three-day session one year after graduation.
(3) The same as (1), except graduates are also
required to prepare and handle a misdemeanor trial without
compensation under supervision within six months after
graduation..
(1) 'Incorporates (1), (2) and (3).
(5) A mandatory training for two months after
graduation and admission to the Bar immediately thereafter.
(6) One year of legal services to under-represented
communities and admission to the bar after six months.
(7) Admission to the Bar upon graduation, except
that graduates must practice with an experienced attorney
for one year, or some equivalent, as determined by the State
Bar. •
In addition, we would support litigation to insti
tute some affirmative alternative based upon the principles
3-
discussed and would agree to submit supporting paper
as 'friends of the court' in order to achieve these
ends.”
y f . J b J L uPrKsi dent, f jBoait Hal 1
Students' Association
-4-
RESOLUTION
"jn recognition of the following facts:
(1) The California State Bar Examination is
aciniinistered as a prerequisite to the licensed practice
of lav; in order to protect the public from incompetent
attorneys.
(2) Virtually every graduate (98%) of an
accredited law school eventually passes the California
Bar Examination if he or she is financially able to
repeatedly take .it^ and, therefore, it serves little
purpose at least with respect to this group.
(3) The Examination has never been validated,
professionally or otherwise, to determine whether or not
the exam does indeed test those abilities which-are
necessary to practice law competently.
(4) The Examination tests only certain analyti
cal and writing skills within an arbitrarily limited
time-frame rarely encountered by practicing attorneys.
(5) The Examination does not, for example, test
•judgment, oral advocacy, persuasiveness, research ability,
rapport with clients, and negotiating ability - all of
which are the essential skills required of any professional
legal practitioner.
(6) The procedural structure of the Bar Examina
tion prevents an accredited law school graduate from
V Based f>n statistics provided by the Californi a
on Bar Examiners to the No:;ican-American Legal
and K-UuoaLionel Fund in 1971.
Conimi. t Leo
Defense
ar.
RESOLUTION D
practicing the prof or, cion for
hie or her graduation, the re
cost of five million dollars
at least seven months after
suit of which is an estimate
\
a year in lost wages in ad~
dition to the costs of preparation.
(7) There arc presently 367 practicing attorneys
in the State who never passed the. bar exam1, (due to the
Second World War Veterans' Exemption) including judges,
legal scholars, and senior partners in prestigious law firms.
(8) The State Bar Examination has not been
substantially re-evaluated in terms of purpose or consent for
nearly two decades even though there has not only been a
significant improvement of the qualifications of law school
applicants but also a radios]. intensification of competition
for the available positions in law schools.
We, the University of California at Los Angeles
Student Bar Association do hereby recommend: that the presen
California Bar Examination, a negative mechanism, be replaced
by some affirmative alternative which would increase the com
petency of future attorneys, which would augment the quality
of the California Bar and the benefits to this state's
citizens, and which would enable all graduates' of accredited
lav/ schools in the State of California to be licensed and pe
rmitted to professionally practice without restriction, with
ultimate admission to the State Bar conditioned upon satis
faction of some affirmative alternative.
The following arc seven of many affirmative
alternatives:
(1) A mandatory Extern Program between the second
(2) The same as (1) except graduates are also
required to attend a State Bar Sponsored Practical Training
Program for a two-week period after graduation and for a
three-day session one year after graduation.
(3) The same as (1), except graduates are also
required to prepare and handle a misdemeanor trial without
compensation under supervision within six months after
graduation. N
(4) Incorporates (1), (2) and (3).
•»
. (5) A mandatory training for two months after
graduation and admission to the Bar immediately thereafter.
(G) One year of legal services to under-represented
i
communities and admission to the Bar after six months.
(7) Admission to the Bar upon graduation, except
that graduates must practi.ce with an experienced attorney
for one year, or some equivalent, ais determined by the State
Bar. •
In addition, we would support li-tigation to institut
some affirmative alternative based upon the principles dis
cussed and would agree to submit supporting papers as 'friends
of the court' in order to achieve these ends."
and third years of lav/ school and admission to the Bar
upon graduation. v
President, University or California
at Los Angeles Student Bar Associatio
RESOLUTION
"In recognition of the following facts:
(1) The California State Bar Examination is
administered as a prerequisite to the
of lav/ in order to protect the public
licensed practice
from.incompetent'
attorneys.
(2) Virtually every graduate (98%) of an.
accredited lav; school eventually passes the California
Bar Examination if he or she is financially able to
1/ .repeatedly take it and, therefore, it serves little
purpose at least v;ith respect to this group.
' (3) The Examination has never been validated,
professionally or otherwise, to determine whether or not
the exam does indeed test those abilities which are\
necessary to practice law competently.
(4) The Examination tests only certain analyt
ical and'writing skills within an.arbitrarily limited time-
frame rarely encountered by practicing attorneys.
(5) The Examination does not, for example, test
judgment, oral advocacy, persuasiveness, researen ability,
rapport with clients, and negotiating ability - all of
which are the essential skills required of any professional
legal practitioner.
(6) The procedural structure of the 'Bar Examina
tion prevents an accredited law school graduate from
1/ Based ori'Ttat is tics provided by the California Committee
— on Bar'Examiners to the Moxican-hmericnn Legal Defense
and Educational Fund in 1971.
RESOLUTION E
or acid c:5 nr
his or her
the profession tor
g r a cl u a t i c > n , t li e r e
at least seven months after
ult of which is- an estimated
cost of five million dollars a year in lost wages in ad
dition to the costs of preparation.
(V) There are presently 367 practicing'attorney3
in the State who never passed the bar exalt (due to the
Second World War Veterans' Exemption) including judges,
legal scholars, and senior partners in prestigious lav/ firms
(8) The State Bar Examination has not been sub
stantially re-evaluated in terms of purpose or content for
nearly two decades bven though there has riot only been a
significant improvement of the qualifications of law school
applicants but also a radical intensification of competition
for the available positions in lav/ schools.
Wc , the Associa ted St in: >11
of the Law do hereby recommend: that the present California
Bar Examination, a negative mechanism, be replaced by some
affirmative alternative which would increase the competency
of future attorneys, which would augment the quality of the
California Bar and the benefits to this state's.citizens,
and which would enable all graduates of accredited law
schools in the State of California to be licensed and per
mitted to professionally practice without restriction, with
ultimate admission to the State Bar conditioned-upon satis-
f a c t i on o £ s erne a £ f i r m a t .i v e al tern at i. Ve.
The following are seven of many affirmative
alternatives:
(1) 'A . mandatory Extern Program between the secoiv-
(2) The same as (1) except graduates are also
required to attend i\ State Bar Sponsored Practical Training
Program tor a two-week period after graduation and for- a
three-day session one year after graduation.
(3) The same as (1) , except graduates are'also
required to prepare and handle a misdemeanor trial without
compensation under supervision within six months after
graduation.
(4) Incorporates (1), (2) and (3).
, (5) A mandatory training for two months after
*
graduation and admission to the Bar immediately thereafter.
(6) One year of legal services to under-represented
communities and'admission to the Bar after six months.
(7) Admission to the Bar upon graduation, except
that graduates must practice with an experienced attorney
for one year, or some equivalent, 'as determined by the State
Bar.
In addition, we would support litigation to institute
some affirmative alternative based upon the principles dis
cussed and would agree to submit supporting papers as 'friends
of the court' in order to achieve these ends."
and third years of law school and admission to the Bar
upon graduation.
& u i r j S ' . ; 4 t
'‘ f ro I.-; f ■ -y , rV„;»
sTo’ on;v vv.oum
____ ( c e . - - v a - ' - r ' ' - ' i ' * y___ / / . p - i .Pre s i d c/:; t, As socloted""‘s-tudcrTt s
of Hastings College of the Lav;
April 5, 1772
• s o i:;; h : i n f f .?r.'c !.c:;>;o •! / .-..-id
•'> Conn:;!.]. ,',o':lon. £
-3-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
35
16
17
10
19
20
21
22
23
24
25
26
RE: ADMISSIONS OF RESPONDENTS
STATE OF CALIFORNIA )
) ss . :
COUNTY OF SAN FRANCISCO ).
I, MARIO OBLEDO, ESQ., being first duly sworn, depose
/and say: •
1. I am associate counsel for petitioners in the instant
matter. I am currently General Counsel-to the Mexican-American
Legal Defense and Educational Fund.
t 2. During the months of August through October, 1971
)I, with Robert Gnaizda, a staff attorney with Public Advocates, Inc.'
was involved in extensive discussions and correspondence with the
\
Committee of Bar Examiners of the State Bar of California.
3. Within the course of that contact I had reason to
send a letter on August 13 requesting specific information of
the Committee of Bar Examiners. Two of my requests concerned the
following information:
"10. Any study showing job-relatedness of present
bar examination or alternatives;
"12. Any study showing:
a. correlation between a high grade on examination ■
and effectiveness as a lawyer
b. correlation between passing the first time as
opposed to the second or third time and being
an effective attorney."
///
/// .
PETITIONER’S
AFFIDAVIT IN SUPPORT OF PETITIONERS
EXHIBIT 23
1
•i .
On October 76, 1971 the Secretary for'tho Cental tte
2 !
of IJr.r K::r. v>:T! y * od to ::-.y cfusstJons 1 0 and 12 with the
CO following s ini In. n . . nrm.be red responses:
1
A 1• i '‘10 . The Cormittee and its staff arc aware of no
5 s tudy n
6 1 ‘
•" 1 2 - The Commi ttc e and its staff are aware of no
7 s tudy j:
8
■ 9
10
11
. 12
13
U i|
"15
16
17.
13
19
20
21
oo
5. This response to our requests confirmed prior con-
variations with the her Examiners in k bating of late September
c£ la71. During the course of those discussions they admitted that
(than’had not attempted to validate the Bar examination as related
i to the job Of being an attorney and that they had no immediatejj
plans for under Larina any suen Si_udy.
/ s/_MARI. Q„0BLRD0 .EF£UMARIO ObLbbO, KSQ • r Aznant
4i SubscrJ.bed and sworn to beiore me
1 this _J,9th.day of Jur.e, 197 2
.0
A
“NOTidVif "pu b lic v' 7 > ‘
7.2 !
!jfi'i ijA*> :
( . / b ; ; H n / r i £ i A L
etrCr ;i>
c , ' : o . t ; i j o /IA
l :•;*n . .V 1 "J L ! ‘.- - C/M-li 0 .* .* {>
) ’■ : r i i ; . : ‘ . i ; c i .b C o c o u ; j i yK • , 7 i : ; (d .. , n;. ion i t p u ; .. f.' .y 2. 1. >73 »\
- w , - -
c O Yu.:, C. n f-fhf.ci.vio. GA Owl 02
q .
24 H
2:> |
96
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
AFFIDAVIT IV SUPPORT OF PETITIONERS
RE IIAPJ1FUL EFFECTS FOR MINORITIES
STATE Or (V.;,lT OR:r-OPT? )
) SS .
'XTY AM) ri '• i.NTY OF S/VN FRANCISCO)
I, SHEILA DALE, being first duly sworn, depose and say:
1 . My name is SHEILA DALE. I am a single Black woman,
md twenty I i.ve years of age. I am a native resident of the State
5£ California currently residing at 96 Pearl Street, .Oakland,
* .
kali torn! i. ,
a. In June, 1971 I received a Juris Doctor Degree from
•oyola Uni varsity School of Lav; in Los Angeles, a law school
accredited l>y the Committee of Bar Examiners of the State Bar of
California. In 1963 I received a Bachelor's Degree from Mount Saint
■larv' s College in Los Angeles, California, an accredited school in
the State >•!' California.
•\. During my lav; school career, I was a member of and
secretary lo the Black American Law Students Association. I was als
elected semetary of the Associated Student Body of the lav; school.
During th>’ summer of 1969, I was employed by the school as adminis
trative .i:•• :istant to George Garbesi, Professor of Lav; at Loyola, whe
administer-•«! the California Legal Education Opportunity Program. Tk
following v.-ar I was employed as a summer lav; clerk with the office
nf the Cili'ernia State Attorney General.
PETITIONER'S EFJIJBIT 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17-
18
19
20
21
22
23
24
25
26
4. Upon ny gr.nduation, I was awarded a Reginald Heber
Smith Community I.av-yer Pellowshi p, the source of my current employ-
nerd.. .Under the ausp i ros of San Francisco Neighborhood Legal
assistance Foundation, the organization to which I have been assignee
l have made successful appearances before the San Francisco Abatement
Appeals Board, San Francisco Housing Authority Commission, and// *
Jnemployment Insurance Appeals Referee. I have engaged in extensive
research and drafting for major litigation in terms of the prepara
tion of pleadings and have participated in counseling and advising
■minerous community organizations.
* 5. Having satisfied all other pre-requisites, I toot the
lar Examination on or about August 24, 25, 26, 1971. I received
written notification that I had failed to pass on or about December
5, 1971. I also took the Winter Bar Examination on February 22, 23
md 24,-1972 and was informed that I failed to pass it on or about
lay 15, 1972. .Solely, as a result of .the decision of the Bar
Examiners that I had failed these exams, I will not be certified by
:he State of California to practice the profession for which I had
:>een trained.
6. Due to the action of the Committee of Bar Examiners,
Ir am significantly prevented from the proper exercise of ray job
responsibilities. This is because I must shuffle my caseload into' j
;he background for a l e a v e o f absence to prepare for the next exam- I|
[nation. Further, I must endeavor to survive for two months on what
noager funds I have presently available, as I have already exhausted :
:he single allocated study leave with pay which my Fellowship pro-
dor;. •
o